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EEOC Commissioner Chai Feldblum offered advice to employers at an American Bar Association meeting held in November. Feldblum indicated that the requirement of reasonable accommodation may still apply to an employee with a disability who has exhausted FMLA or employer-provided leave. While leave policies may work best with “clear, defined lines,” under the ADA no such clear lines exist because employers must still individually assess whether additional leave is a reasonable accommodation. Thus, at least on the employee’s request, an employer must still engage in an ADA interactive process after an employee with a disability has exhausted his FMLA or employer-provided normal leave. Under such circumstances, it is completely legitimate for the employee to provide medical information about his condition as it relates to the need for additional leave. In most circumstances, the employee must initiate the interactive process by indicating a need for accommodation, although no particular words are needed to start the process.

Regarding complying with the interactive process, speakers at the November conference suggested that the employer must do more than just say no when an employee suggests an accommodation. The ADA may require an employer at least to consider the request and both employer and the employee may thereafter have an obligation to at least consider making additional proposals.

An issue that often arises is an employee’s request for light duty. Light duty may or may not be a reasonable accommodation, depending in large part whether the employer offers light duty jobs or reserves such positions for employees with work-related injuries. The courts generally rule that an employer has no obligation to provide temporary employment that excuses the worker from doing the job’s essential functions.

A critical issue regarding job descriptions is the significance of attendance as an essential function. Regular and predictable attendance in the workplace can potentially be an essential function or qualification standard, according to speakers at the conference. It is helpful for employers to include regular attendance as an essential function in job descriptions that really require such attendance. The issue is quite controversial since some contend that employers are required to accommodate absences caused by a disability, at least absent undue hardship to the employer. It may make a difference whether the employee timely disclosed the disability and the need for the accommodation.

Employers need to be careful about their job descriptions, as courts sometimes “hold employers to what they say” in such descriptions. That is, if an employer leaves out, in the job description, a function that it later contends is essential, a judge or jury may rule against the employer because the function was not stated in the job description. On the other hand, an employer may have less of a problem if it “forgives” an employee with a disability from meeting every essential job function, as to setting an adverse precedent for other cases.

How long an employer must keep an employee’s job open who is unable to work due to a disability, may depend on the impact on a job of having the employee out indefinitely. Further, the employer may have an obligation to reassign the disabled employee to a vacant job for which he is qualified. The employer need not, however, create a new job for the worker with the disability.

Another controversial issue is whether an employee can be disciplined or terminated for “misconduct,” when the misconduct comes from a disability. For example, suppose an employee with a disability commits a form of insubordination or falls asleep because of their disability or medication associated with that disability. The general rule appears to be that an employer may discipline or terminate employees who violate work rules, even though the violation relates to a disability’s effects.

An example of how careful that employer must be in responding to an issue, is the issue of telecommuting. An employer responding to a request for telecommuting from an employee with a disability who needs to work from home, by simply saying that it has “no policy” on telecommuting, is not a good answer because an employer has a “reasonable accommodation” obligation in spite of the absence of a specific policy in point. Indeed, even if the employer had a specific policy, the policy might have to be modified in an individual case as a reasonable accommodation. A much better answer would be to refer to what the job actually requires, particularly in terms why on-site presence is necessary.

The above points came from various speakers at the November, 2012, ABA meeting of the Section of Labor and Employment Law.

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