Americans With Disabilities Act (ADA) Compliance and Defense
The Americans with Disabilities Act (ADA) was signed into law with a very laudable goal – to ensure that Americans who were disabled would be able to work productively by requiring employers to accommodate the employees’ disabilities as long as the accommodation did not present an undue burden for the employer. From that relatively modest starting point, the ADA has taken on a life of its own and has become one of the most prevalent but administratively difficult anti-discrimination laws. The Equal Employment Opportunity Commission (EEOC) administers the ADA and the EEOC has taken a very broad view of the ADA. Although the ADA was touted as a “right to work” law – promoting the rights of individuals with disabilities to work and pursue their career goals – the EEOC has expanded the ADA to require that employers give unpaid leaves of absence to disabled individuals and turned the ADA into a right “not to work” law as well.
That expansion of the ADA has created other problems for employers because the EEOC’s expansion of the ADA has imposed additional burdens on employers beyond the obligations of the ADA itself. For employers who are subject to the Family and Medical Leave Act (FMLA), the situation is even more difficult. The FMLA requires employers with 50 or more employees in a 75 mile radius to provide 12 weeks of unpaid leave to employees who need to treat a serious medical condition. When the FMLA was enacted, the FMLA was promoted as an act which balanced the need for employees to take time off with the need for employers to make staffing decisions after the leave ended. The FMLA states that after the 12 weeks of leave expires, if an employee cannot return to work, the employer does not have to continue to hold the employee’s position open or grant additional leave, meaning that the employer can terminate the employee’s employment. The EEOC effectively has eliminated the right of an employer to terminate an employee’s employment after the FMLA leave expires by the EEOC’s interpretation of the ADA. The EEOC has taken the position that any employer who terminates an employee’s employment at the end of the 12 weeks of FMLA leave violates the ADA unless the employer gives an extra period of unpaid leave to see whether the employee can return to work. The EEOC has not provided guidance on the amount of additional leave an employer must give after the FMLA leave ends, so employers are left to guess as to how much additional leave needs to be given after FMLA.
The ADA, which started as a “right to work” statute, has become a statute which grants indefinite amounts of unpaid leave time and has in many ways eliminated the rights of employers under the FMLA by expanding the amount of unpaid leave and requiring even small employers who are not subject to the FMLA to grant unpaid leave time even though the ADA itself does not require leave time. Employers do not want to pay to litigate the issues of whether they have to grant leave under the ADA, so they are forced to comply as best as they can.
Congress also has amended the definition of an “individual with a disability” under the ADA and expanded that part of the Act as well. An individual is deemed to be “disabled” if he or she has a condition which substantially impairs a major life activity or a major bodily function, which is interpreted to mean the impairment of any of the major systems in the body (i.e. immune system, respiratory system, circulatory system, etc.). By the amendment of the definition of “disability,” any condition which impairs the “normal” functioning of a bodily system, such as high blood pressure which impairs the normal functioning of the circulatory system, can qualify as a disability, and employers must grant accommodations to employees due to that condition. Accommodations themselves can be difficult to navigate, as employers and employees often do not agree on what accommodations are effective but the least burdensome on employers.
The result: a minefield that employers must navigate with extremely unclear guidance from the EEOC.
HOW ELDI CAN HELP:
ELDI helps employers navigate specific situations and develop appropriate accommodations, monitor employee use of accommodations and potential abuse, investigate spurious disability claims, navigate the EEOC’s unpaid leave requirements, and administer disability leave and accommodation programs fairly. ELDI’s services to employers include:
- Counseling employers on the interplay between the FMLA and ADA
- Designing and implementing reasonable accommodations for disabled individuals in the workplace
- Compliance with state and local leave laws, including paid family leave and leave for victims of domestic violence which may overlap with the ADA
- Investigation and discipline of employees for abuse of accommodations
- Investigation and discipline of employees for abuse of leave rights
- Counseling employers on medical/personal leave reinstatement
- Counseling employers on issues arising during leave, alternate staffing arrangements, and termination of employees who do not return from leave