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Aug 29, 2014

By Sandra S. Moran

The U.S. Equal Employment Opportunity Commission’s efforts to enforce the 2008 American with Disabilities Amendments Act have certainly not waned as it continues to challenge leave policies.

Armed with a recent $1.35 million settlement to dismiss a disability discrimination lawsuit filed by the EEOC (EEOC v. Princeton Healthcare System), employers should evaluate their policies and procedures regarding leave to ensure they comply with the ADA.

This is especially true for health care providers, as the EEOC has shown less tolerance for ADA violations in the health care sector given the fact that they expect health professionals to be particularly understanding of those with disabilities.

The EEOC has even developed a Q&A fact sheet about applying ADA employment rules in health care jobs. Below are a few tips employers should keep in mind as they evaluate their current practices.

1. Avoid fixed leave policies

While employers are not required to endure excessive absenteeism, they may be at risk of a claim if they rely on a policy that limits the amount of time an employee covered by the ADA may take or only allows for a leave of absence based on the Family and Medical Leave Act.

Employers need to keep in mind that a leave of absence can be a reasonable accommodation under the ADA, even if an employee is not eligible for leave under the FMLA.

Any company policy should consider explicitly stating that a leave of absence or time off will be considered under the ADA, regardless of whether an employee is eligible or entitled to leave under the FMLA.

2. Engage in the interactive process

Employers should engage in the interactive process early and often, when deciding how much leave is necessary to accommodate an employee’s medical condition. Courts have observed that the interactive process “requires a great deal of communication between the employee and employer,” particularly concerning the employee’s limitations as compared to his or her essential job functions.

Once an employee makes an employer aware of the need for a reasonable accommodation, which may include taking time off, the interactive process is triggered.

Employers should request documentation from an employee to support medical claims and requests for leave or accommodation. This information should be used to evaluate the limitations imposed by the employee’s medical condition and if the condition meets the ADA’s definition of disability. Employers should maintain complete and accurate records of all efforts they have made to meet an employee’s requests.

3. Avoid fitness for duty certifications without restrictions

While fitness for duty certifications may be common practice when an employee is returning to work from FMLA leave, requiring it following ADA leave can be tricky.

Under the ADA, an employer can request a fitness for duty certification from an employee only if the employer has a reasonable belief that, the employee’s condition prevents them from performing the essential functions of the job, or the employee presents a direct threat to his/her own safety or the safety of others.

For example, if an employee takes leave for a mental condition and then returns to work, the employer may not have the right to ask for a fitness for duty certification unless there is a legitimate cause for concern related to the employee’s ability to do his/her job safely.

An employer’s belief must be based on facts related to the employee’s actual behavior and not on assumptions or stereotypes about the employee’s condition. If an employer is considering requiring such a certificate from an employee prior to returning to work, the employer should evaluate whether it can point to actual or threatened harmful behavior caused by the mental condition, such as the behavior that may have triggered the leave in the first place.

4. Think before disciplining for ADA-related absences

Employers should be careful when disciplining employees over ADA-related absences, and avoid it when such absences are provided as a reasonable accommodation for a disability.

To help avoid a discrimination claim under the ADA, employers should be proactive throughout the course of employment. They should understand an employee’s job functions and establish and communicate performance expectations by way of an up-to-date job description that focuses on the results or outcome of a function, not solely on the way it is customarily performed.

Formal employee evaluations that are accurate and consistent should be conducted. Employers should carefully document poor performance and reasons for any dismissals or firings.

Communicating performance issues and consequences to employees in a clear manner, including, counseling employees on how to improve will help protect employers from lawsuits. When communicating poor performance, employers should recognize when the interactive process is triggered.

Avoiding unnecessary risks

While the ADA does not require that the employee use any particular words such as “disability” or “accommodation” the interactive process may be triggered as an employee explains the reason for his/her poor performance.

While there are some potential pitfalls when dealing with the ADA, by becoming familiar with and adhering to the EEOC’s ADA regulations, employers can ensure that they avoid unnecessary risks.