Martha Zackin

EEOC Issues Resource Document on Leave of Absences under the ADA

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On May 9, the U.S. Equal Employment Opportunity Commission issued a new Resource Document that advocates the use employer-provided leaves of absence as accommodation for an employee’s disability.  According to the press release announcing the publication of the document, titled Employer-Provided Leave and the Americans with Disabilities Act, this new resource attempts to address the “troubling trend” that is the “prevalence of employer policies that deny or unlawfully restrict the use of leave as a reasonable accommodation.” Claiming that the Resource Document creates no new agency policy, the EEOC describes the document as simply “one in a series of EEOC Resource Documents” that “consolidates existing guidance on ADA and leave into one place.”

The Resource Document covers six main topics, giving specific examples for each. These topics, and one example provided for each, are:

  1. Equal Access to Leave Under an Employer’s Leave Policy. Here, the EEOC simply asserts that “employees with disabilities must be provided with access to leave on the same basis as all other similarly-situated employees.” Given that this has been the law of the land for many years, it is likely that the EEOC included this statement in its Resource Document to demonstrate that it is not creating new agency policy, but simply consolidating existing guidance into one place.

Example: An employer permits employees to use paid annual leave for any purpose and does not require that they explain how they intend to use it. An employee with a disability requests one day of annual leave and mentions to her supervisor that she is using it to have repairs made to her wheelchair. Even though he has never denied other employees annual leave based on their reason for using it, the supervisor responds, “That’s what sick leave is for,” and requires her to designate the time off as sick leave. This violates the ADA, since the employer has denied the employee’s use of annual leave due to her disability.

  1. Granting Leave as a Reasonable Accommodation. The EEOC describes its policy as requiring employers “to change the way things are customarily done” (emphasis in the original). To that end, an employer must consider providing unpaid leave to an employee with a disability as a reasonable accommodation, when the employer does not offer leave as an employee benefit, when the employee is not eligible for leave under the employer’s policy, or when the employee has exhausted his or her available leave. The practical effect of this principle is to extend FMLA leave, or to provide FMLA leave to employees who are not eligible for such leave.

Example: An employer’s leave policy does not cover employees until they have worked for six months. An employee who has worked for only three months requires four weeks of leave for treatment for a disability. Although the employee is ineligible for leave under the employer’s leave policy, the employer must provide unpaid leave as a reasonable accommodation unless it can show that providing the unpaid leave would cause undue hardship.

  1. Leave and the Interactive Process Generally. According to the Resource Document, “[w]hen an employee requests leave, or additional leave, for a medical condition, the employer must treat the request as one for a reasonable accommodation under the ADA” (emphasis added). If the request for leave cannot be addressed under an employer’s existing leave program, the FMLA or similar state or local law, or the state workers’ compensation program, the employer must engage in the “interactive process,” to obtain relevant information to determine whether the employee has a condition that is a disability under the ADA, and to determine the feasibility of providing the leave as a reasonable accommodation.

Example: An employee with a disability is granted three months of leave by an employer. Near the end of the three month leave, the employee requests an additional 30 days of leave. In this situation, the employer can request information from the employee or the employee’s health care provider about the need for the 30 additional days and the likelihood that the employee will be able to return to work, with or without reasonable accommodation, if the extension is granted.

  1. Maximum Leave Policies. Many employers have maximum leave policies that provide for automatic or administrative termination for all employees who exceed the maximum amount of leave. The Resource Document makes clear that although such policies are not per se unlawful, employers must consider modifying maximum leave policies to grant leave beyond the maximum allowed as a reasonable accommodation for disability-related absences. In other words, employers must make a case-by-case assessment of an employee’s situation and need for leave before terminating the employee in accordance with a maximum leave policy.

Example: An employer is not covered by the FMLA, and its leave policy specifies that an employee is entitled to only four days of unscheduled leave per year. An employee with a disability informs her employer that her disability may cause periodic unplanned absences and that those absences might exceed four days a year. The employee has requested a reasonable accommodation, and the employer should engage with the employee in an interactive process to determine if her disability requires intermittent absences, the likely frequency of the unplanned absences, and if granting an exception to the unplanned absence policy would cause undue hardship.

  1. Return to Work and Reasonable Accommodation (Including Reassignment). The EEOC unequivocally states that an employer “will violate the ADA if it requires an employee with a disability to have no medical restrictions” before returning to work. In other words, a “100% healed or recovered” policy is unlawful if the employee can perform the essential functions of the job with or without reasonable accommodation. The EEOC also takes the position that if an employee cannot perform the essential functions of his or her job even with a reasonable accommodation, the employer must place the employee in a vacant position for which he or she is qualified without requiring the employee to compete with other applicants for the position.

Example: An employee with a disability requests and is granted two months of medical leave for her disability. Three days after returning to work she requests as reasonable accommodations for her disability an ergonomic chair, adjusted lighting in her office, and a part-time schedule for eight days. In response, the company requires the employee to continue on leave and informs her that she cannot return to work until she is able to work full-time with no restrictions or accommodations. The employer may not prohibit the employee from returning to work solely because she needs reasonable accommodations (though the employer may deny the requested accommodations if they cause an undue hardship). If the employee requires reasonable accommodations to enable her to perform the essential functions of her job and the accommodations requested (or effective alternatives) do not cause an undue hardship, the employer’s requirement violates the ADA.

  1. Undue Hardship. The EEOC reiterates that employers are not required to provide reasonable accommodation if to do so would cause “undue hardship.” Importantly, the EEOC clearly states that “indefinite leave – meaning that an employee cannot say whether or when she will be able to return to work at all – will constitute an undue hardship.” Otherwise, however, the EEOC offers no further clarity to what constitutes “undue hardship” beyond what has already been provided in previous guidance. As always, factors to be considered include the amount and/or length of leave required, the frequency of leave, the predictability of intermittent leave, and the impact on the employer’s operations and its ability to serve customers and clients in a timely manner.

Example: An employee has exhausted both his FMLA leave and the additional eight weeks of leave available under the employer’s leave program, but requires another four weeks of leave due to his disability. In determining whether an undue hardship exists, the employer may consider the impact of the 20 weeks of leave already granted and the additional impact on the employer’s operations in granting four more weeks of leave.

The concept of leave as a reasonable accommodation is not new. For many years, the Equal Employment Opportunity Commission has taken the position that a leave of absence is a form of reasonable accommodation under the Americans with Disabilities act if necessitated by an employee’s disability, including leave that exceeds a company’s normal leave allowance. Nevertheless, and despite the fact that the EEOC claims that the document creates no new agency policy, employers are on notice that the EEOC will scrutinize all refusals to grant an employee a leave of absence as a reasonable accommodation. Beware.

Martha Zackin

Defend Trade Secrets Act Signed Into Law

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President Obama signed the “Defend Trade Secrets Act of 2016” into law on May 11th.  The Act amends the Economic Espionage Act of 1996 to provide a federal private right of action for trade secret misappropriation and theft.  Remedies include actual damages, injunctive relief, and exemplary damages and attorneys’ fees for willful and malicious misappropriation. The Act does not preempt state law, meaning that plaintiffs will now have the option of proceeding under either state or federal law when faced with a threat to trade secrets.

The Act also provides immunity for certain disclosures made to government officials or attorneys.  Specifically, the Act provides that an individual may not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made: (1) in confidence to a government official or an attorney, solely for the purpose of reporting or investigating a suspected violation of law; or (2) in a complaint or other filing in a lawsuit or other proceeding, if such filing is made under seal.  Likewise, an employee who files a retaliation lawsuit for reporting a suspected violation of law may disclose the trade secret to his or her attorney and may use the trade secret information in a court proceeding if the individual files any document containing trade secret information under seal and does not disclose the trade secret except pursuant to court order.

Importantly, effective May 11, 2016, the Act requires employers to provide notice of this immunity in any contract or agreement with an employee that governs the use of trade secrets or other confidential information.  Employers who fail to provide the required notification cannot recover attorneys’ fees or exemplary damages under the Act.  The notice of immunity can be done in one of two ways.  One way is to incorporate fully the notice of immunity into confidentiality agreements.  The second way is to put the notice of immunity in the company’s policy for reporting a suspected violation of law, and then to cross-reference that policy in confidentiality agreements.  For simplicity, we recommend that employers reproduce the statutory language in the notice of immunity.