EEOC Disappointment: Long Awaited (and unhelpful) EEOC Guidance

Posted on June 16, 2016 in Compliance

EEOC Disappointment: Long Awaited (and unhelpful) EEOC Guidance

On May 9, 2016, the EEOC issued long awaited guidance regarding leaves of absences as a form of reasonable accommodation under the Americans with Disabilities Act Amendments Act (the “ADAAA” or “ADA”, as we often refer to it).  We hoped the EEOC would address the big question: how much leave does an employer have to provide? The EEOC skirted its opportunity to be bold and instead issued rules that remind employers of the uncertainty associated with leave as a form of accommodation.  However, we can pry some useful information out of the EEOC’s latest guidance.

Employers must amend and bend policies to provide for leave as an accommodation.

The EEOC makes the valid point that an employer cannot hide behind its policies as a mechanism for denying leave as a form of accommodation.  Historically, employers distinguished in their policies between persons injured at work and those who needed leave for other reasons.  The new guidelines remind employers that the source of the disability is not a basis for denying leave irrespective of company policies and practices.  This will surprise some employers who think of worker’s compensation as a special case.  In fact, employers need to be very conscious of being consistent in how long they permit someone on leave in all circumstances to avoid claims of bias.  The Supreme Court shed some light on this issue in a case called Young v. UPS.  See Mark’s article:  http://www.employment-matters.com/compliance/young-v-ups-murky-guidance-from-the-supreme-court/.

FMLA is a floor, not a ceiling.

Many employers believe the Family Medical Leave Act (“FMLA”), or a state law equivalent, sets the maximum amount of leave that an employee may be entitled. Employers with less than 50 employees mistakenly think they are exempt from providing leave.  The new guidelines make clear that both assumptions are incorrect.  The EEOC reminds employers that ADA leaves should always be considered after an employee has exhausted FMLA and as an option for employees who are not eligible for FMLA leave either because the employer has too few employees or the employee has not been with the employer the requisite 12 months.

You cannot outsource ADA compliance.

Employers often rely on third-party administrators (“TPA”s) to handle short-term and long-term disability benefits.  Some TPAs will provide, for an extra charge, ADA leave administration.  The new guidelines make the fair point that outsourcing leave administration does not relieve an employer of its obligations or liability.  Frankly, our experience suggests that TPAs are a poor option for ADA leave administration.  We are happy to elaborate on this opinion privately.

More ADA claims is the unfortunately most likely consequence of the new EEOC guidance.  So employers need to have heightened awareness to employee requests for leave and circumstances where the employer knows leave should be considered as a reasonable accommodation.