COMMON EMPLOYER QUESTION: ARE WE REQUIRED TO CREATE “LIGHT DUTY” POSITIONS AS A REASONABLE ACCOMODATION?

QuickAnswerQuick Answer: No—an employer is never required to create a “light duty” position for a disabled employee as a reasonable accommodation.  But this shouldn’t end the discussion and the duty to engage in the interactive process.

Blog_LightDuty3

Although the employer is not required to create a “light duty” position, it may be required to make other reasonable accommodations to permit the disabled employee to work, e.g., “restructuring” a job by modifying the way in which the job can be performed or eliminating, reallocating and redistributing non-essential functions (but never truly essential functions).

The other consideration is whether the employer already has existing “light duty” jobs the employee could be reassigned to work.  As will be explained below, such existing “light duty” positions (usually reserved for employees returning from an on the job injury covered by workers’ compensation laws) would be a reasonable accommodation to disabled employees.

The EEOC’s Position on “Light Duty” Positions

On September 3, 1996, the EEOC issued “Enforcement Guidance: Workers’ Compensation and the ADA.”  The EEOC defines the term “light duty” to mean positions created specifically for the purpose of providing work for employees who are unable to perform some or all of their normal duties.

The EEOC’s position is an employer cannot reserve existing, vacant light duty jobs for on-the-job injuries; rather, the employer must consider reassigning any disabled employee (including disabled employees without on-the-job injuries) to such an existing light duty job if it is vacant and if it is needed by the employee as a reasonable accommodation.  However, the EEOC also takes the position an employer may create light duty solely for employees who are injured on the job.

Therefore, to the EEOC the critical distinction is whether the light duty position is created or already exists at the time of the request for accommodation.  If the employer has existing, vacant light duty positions, all disabled employees are eligible for it as an accommodation, regardless of the cause or location of the disability, e.g. whether employees are deemed disabled because of an occupational injury or disabled for any other reason.  On the other hand, if the employer creates a light duty position, the created position can be reserved for employees who are injured on the job; there would be no duty to create a light duty position for disabled employees not injured on the job.

QuickAnswer

The EEOC explains its position regarding “light duty” as an accommodation in three questions and answers as follows:

27. Does the ADA prohibit an employer from creating light duty position for an employee when s/he is injured on the job?

No, in most instances. An employer may recognize a special obligation arising out of the employment relationship to create a light duty position for an employee when s/he has been injured while performing work for the employer and, as a consequence, is unable to perform his/her regular job duties.  Such a policy, on its face, does not treat an individual with a disability less favorably than an individual without a disability . . ..

*  * *

An employer need not create a light duty position for a non-occupationally injured employee with a disability as a reasonable accommodation.  The principle that the ADA does not require employers to create positions as a form of reasonable accommodation applies equally to the creation of light duty positions.  However, an employer must provide other forms of reasonable accommodation required under the ADA. . . . Accordingly, an employer may not avoid its obligation to accommodate an individual with a disability simply by asserting that the disability did not derive from an occupational injury.

In some cases, the only effective reasonable accommodation available for an individual with a disability may be similar or equivalent to a light duty position. The employer would have to provide that reasonable accommodation unless the employer can demonstrate that doing so would impose an undue hardship.

Example: R creates light duty positions for employees when they are occupationally injured if they are unable to perform one or more of their regular job duties.  CP can no longer perform functions of her position because of a disability caused by an off-the-job accident.  She requests that RO create a light duty position for her as a reasonable accommodation. R denies CP’s request because she has not been injured on the job.  R has not violated the ADA.  However, R must provide another reasonable accommodation, absent undue hardship.  If it is determined that the only effective accommodation is to restructure CP’s position by redistributing the marginal functions. And the restructured position resembles a light duty position, R must provide the reasonable accommodation unless it can prove that it imposes an undue hardship.

28.  If an employer reserves light duty positions for employees with occupational injuries, does the ADA require it to consider reassigning an employee with a disability who is not occupationally injured to such positions as a reasonable accommodation?

Yes.  If an employee with a disability who is not occupationally injured becomes unable to perform the essential functions of his/her job, and there is no other effective accommodation available, the employer must reassign him/her to a vacant reserved light duty position as a reasonable accommodation if (1) s/he can perform its essential functions, with or without a reasonable accommodation; and (2) the reassignment would not impose an undue hardship.  This is because reassignment to a vacant position and appropriate modification of an employer’s policy are forms of reasonable accommodation required by the ADA, absent undue hardship.  An employer cannot establish that the reassignment to a vacant reserved light duty position imposes an undue hardship simply by showing that it would have no other vacant light duty positions available if an employee became injured on the job and needed light duty.

Example: R has light duty positions which it reserves for employees in its manufacturing department when they are unable to perform their regular job duties because of on-the-job injuries. CP, an assembly line worker, has multiple sclerosis (MS) which substantially limits a number of major life activities. Eventually CP is unable to perform the essential functions of her position, with or without a reasonable accommodation, because of the MS.  As a reasonable accommodation, CP requests that she be reassigned to a vacant light duty position for which she is qualified.  R says that the vacant light duty position is reserved for employees who are injured on the job and refuses to reassign CP, although it would not impose an undue hardship to do so.  R has violated the ADA by refusing to reassign her to the vacant light duty position.

29If an employer has only temporary light duty positions, must it still provide a permanent light duty position for an employee with a disability-related occupational injury?

Blog_LightDutyNo. The ADA typically does not limit an employer’s ability to establish or change the content, nature, or functions of its positions.  So, for example, an employer is free to determine that a light duty position will be temporary rather than permanent. Thus, if an employer provides light duty positions only on a temporary basis, it need only provide a temporary light duty position for an employee with a disability-related occupational injury.

Jurisprudence Regarding Light Duty Positions and the ADA

JurisdicationThe Fifth Circuit has routinely held an employer has no obligation to create a new “light duty” position for a disabled employee.  Burch v. City of Nacagdoches, 174 F.3d 615 (5th Cir. 1999) (holding city did not need to create light duty job for firefighter to return to work; “because of the small size of the Fire Department, it has no permanent light-duty positions.”); Foreman v. Babcock & Wilcox Co., 117 F.3d 800 (5th Cir. 1997) (“An employer is not required to create “light duty” jobs to accommodate.”); Turco v. Hoechst Celanese Corp., 101 F.3d 1090, 1094 (5th Cir.1996); see also Bailey v. Napolitano, 2012 WL 1658790, * 9 (N.D. Tex. May 11, 2012) (employer articulated a legitimate, nondiscriminatory reason for denying plaintiff’s request for limited or light duty; the employer did not have limited or light duty assignments available at the time of plaintiff’s request, and its policy was limited and light duty assignments were dependent upon work being available and the available duty functions the employee was capable of performing).

Although not directly challenged under the ADA, there are several Fifth Circuit cases in which courts have tacitly honored an employer’s policy of reserving light or limited duty positions for employees injured on the job.  See Hernandez v. Aldine Independent School District, 1999 WL 33659718 (5th Cir. March 18, 1999) (Enforcing policy providing: “light duty work is reserved for employees that have been injured on the job, and who have been restricted to light duty work by a doctor. The work assignment is based on the restrictions on the light duty slip received from the doctor”); Urbano v. Continental Airlines, Inc., 138 F.3d 204, 206 (5th Cir. 1998) (Employer’s policy of reserving light duty program exclusively for employees suffering from work-related injuries did not violate the Pregnancy Discrimination Act); Randall v. Methodist Hospitals of Dallas, 1997 WL 446437, * 3 (N.D. Tex. July 15, 1997) (Plaintiff was temporarily reassigned to light duty work in accordance with Methodist’s policy for employees injured on the job). Again, to date there do not seem to be any Fifth Circuit (or district court cases within the Fifth Circuit) opinion on the EEOC’s requirement regarding existing light duty jobs or otherwise commenting on the EEOC’s enforcement guidance.

One federal court of appeals to address the issue did not adopt the approach taken by the EEOC.  In Dalton v. Subaru-Isuzu, 141 F.3d 667 (7th Cir. 1998), the court considered whether the employer could reserve light-duty positions for employees recuperating from recent injuries who had temporary disabilities. The employer’s program limited the light duty positions to 90 days; they were temporary positions. Plaintiffs argued they should be allowed to permanently occupy the light duty positions as an accommodation under the ADA.  The court stated these positions could be reserved for employees with on-the-job injuries who were temporarily disabled. The court stated:

The ADA does not compel an employer to reduce the number of bona fide temporary jobs it has set aside in conjunction with a program like the one contemplated by the state worker’s compensation statute and to convert them to permanent positions for its disabled employees. The ADA does require that [Defendant] make its light-duty program available to disabled employees who are recuperating from temporary restrictions and are otherwise qualified to participate.

However, the court in Stephenson v. United Airlines, Inc., 9 Fed.Appx. 760, 765 (9th Cir. 2001), suggested a policy limiting light duty job to work-related injuries might be illegal. United relied on a per se policy prohibiting light or modified duty for non-occupational injuries or illnesses as a justification for not conducting an interactive individualized inquiry into the facts of plaintiff’s disability.   Without ruling on the merits of the ADA claim, the Ninth Circuit found that employers must engage in an interactive, individualized dialogue with employees to identify potential options which might serve as a reasonable accommodation.  Id. at 766.  Furthermore, it found employers may not unilaterally adopt or apply policies in a manner that circumvents their obligations under the law.  Therefore, the Stephenson court held “employers may not apply policies in a manner that discriminates against individuals otherwise qualified as disabled under the ADA.”  Id. The court further stated United’s “argument that its light or modified duty was non-discriminatory because it applied equally to all employees neglects to consider its duties under the ADA.  An employer may not unilaterally adopt a policy exempting it from its obligations under the ADA even if the policy is otherwise uniformly applied to all employees.”

TakeAway
The Takeaway:  An employer would be well advised to consider reassigning existing “light duty” positions to a qualified, disabled employee as a reasonable accommodation, even if the employee was not injured on the job or a part of a workers’ compensation program.  That said, even disabled employees who are transferred to the existing “light duty” as a reasonable accommodation must abide by the policies creating the “light duty” position; as such, if there are limitations to the “light duty” position (e.g., the light duty position is only available for a finite period of time or when the employee reaches maximum medical improvement), such restrictions would also apply to disabled employees. If the employer expects the “light duty” job to be temporary, they should clearly state so in writing during the interactive process.

SAMPLE SHORT FORM ADA POLICY FOR HANDBOOKS

americans-with-disabilities-act

I have advocated each employer with 15 or more employees should have a policy addressing and affirming its obligations under the ADA.  Here is the sample policy I recommend:

 

AMERICANS WITH DISABILITIES ACT

It is the Company’s policy not to discriminate against qualified individuals with a disability with regard to any aspect of employment.  The Company is committed to complying with the American with Disabilities Act, as amended.

The Company recognizes  some individuals with disabilities may require reasonable accommodations.  If you are disabled or become disabled (meaning you have a mental or physical impairment substantially limiting one or more of the major life activities) and you require a reasonable accommodation, you must contact the HR Benefits Coordinator  to begin the interactive process, which will include discussing your disability, limitations, and possible reasonable accommodations that may enable you to perform the functions or your position, make the workplace readily accessible to and usable by you, or otherwise allow you to enjoy equal benefits and privileges of employment.

Of course, if you want a longer, more comprehensive ADA policy, follow the EEOC’s published policy:  POLICY LINK

MY EMPLOYEE JUST TESTED POSITIVE FOR MARIJUANA- I CAN FIRE HER, RIGHT?

FailedDrugTestThe ADA specifically excludes employees who currently use illegal drugs from ADA protection. See 42 U.S.C.§ 12114(A); 29 C.F.R. § 1630.3(a).  Therefore, an employee who illegally uses drugs, either because she is a casual user or because she is an addict, is not protected by the ADA if the employer terminates for that reason.  An employer does not violate the ADA by enforcing its rules and policies prohibiting employees from illegally using drugs.

Therefore, when an employer learns that an employee is illegally using marijuana, the employer may terminate the employee because of the drug use without violating the ADA.   The result would be the same even if the employee also had a covered disability (multiple sclerosis) as long as the employer is acting on the basis of the illegal drug use and not the underlying disability.

Of course, there is a wrinkle! If the employee is using marijuana for a disability under the supervision of a licensed healthcare provider in a state where such use is lawful, the employee will argue there was no “illegal use” of drugs.  So far, all Courts have rejected this this argument.

For instance, in James v. City of Costa Mesa, 700 F.3d 394 (9th Cir. 2012), the court held that marijuana use, even if authorized by state law, was not protected by federal law.  Specifically, the ADA definition of “illegal drug use” refers to federal, rather than state, law and federal law does not authorize even medical marijuana use.   The court held “doctor-recommended marijuana use permitted by a state law, but prohibited by federal law, is an illegal use of drugs for the purposes of the ADA.”

See also, Barber v. Gonzales, 2005 WL 1607189 (E.D. WA. July 1, 2005)

(“[T]he  Court finds [Plaintiff’s] use of marijuana was an ‘illegal use of drugs’ as defined by the ADA, and, thus, the Defendants did not violate the ADA when they took action against [Plaintiff] on the basis of his marijuana use, regardless of whether Washington law allowed such use.   . . .[T]he purpose of the ADA is not expand the scope of permissible drug use, but rather to eliminate the discrimination against individuals with disability who lawfully utilize prescription medicines in connection with their disability.”);

Assenberg v. Anacortes Housing Authority, 268 Fed. Appx. 643 (9th Cir. 2008) (holding housing authority had no duty under the ADA to accommodate tenant’s medical marijuana use); Forest City Residential Management, Inc. v. Beasley, 2014 WL 6861439 (E.D. MI Dec. 3, 2014) (holding no accommodation necessary for medical marijuana under the Fair Housing Act and the Rehabilitation Act, relying on a HUD memorandum).

TAKE THESE THREE STEPS TO ENSURE ADA COMPLIANCE NOW!

NewYearClockWe all have a long list of New Year’s resolutions, e.g., shape up; lose weight; stay organized; save money. HR professionals should add a commitment to ADA compliance to their resolution list.

According to the EEOC statistics, charges of discrimination alleging violations of the ADA have been on a steady rise in the past five years: in FY 2008, the EEOC received approximately 19,000 charges alleging violations of the ADA; in FY 2013 (the last year statistics are available), that number has increased to nearly 26,000 charges.  See: Charge Statistics.  The EEOC has made ADA compliance a priority, so we expect to see charges continue to rise in the next few years.

New-years-2014With this in mind, here are three easy steps to institute to become fully compliant with and ready to handle issues arising under the ADA:

#1 Designate an “ADA Officer/ Coordinator”
Select and fully train a member of your HR and/or Benefits team to handle all ADA accommodations request. Of course, this designated person can have other job responsibilities as well; for instance, your ADA Coordinator may also be responsible for FMLA certifications and tracking.  Importantly, this professional should understand the differences between and nuances of the ADA, the FMLA and any other leave program offered by the employer.

All requests for accommodation due to any medical condition should be directed to your designated officer/ coordinator for consideration and action. An ADA officer/ coordinator will centralize the employer’s response and ensure consistent treatment and application of the ADA.  Most importantly, this designation limits direct supervisors’ knowledge of their supervisees’ medical conditions, in turn limiting an employer’s exposure for discrimination and/or retaliation claims.

#2 Use ADA Accommodations Request Forms, Position Descriptions and Checklists
A written accommodations request form is the single best tool for evaluating an employee’s ADA accommodations request. The form requires employees to briefly explain their disability and accommodation request in their own words. Additionally the form requires the employee’s treating physician to certify the employee’s medical condition;  answer questions to determine whether the medical condition qualifies as a “disability;” review the position description for the job; identify the functions of the job the employee cannot perform without an accommodation; opine as to all reasonable accommodations allowing the employee to perform the functions of the job; state the limits to the accommodation(s); and identify alternative accommodations.

Once completed by the employee and treating physician, the form is submitted to the ADA Officer/ Coordinator (note– failure to complete the form may lead to denial of the accommodation request and proving the employee failed to engage in the interactive process). The form is then used to assist the ADA Officer/ Coordinator with the accommodations analysis (e.g., whether the employee meets the definition of “disabled” under the ADA and ADAAA; whether the accommodations request is reasonable; whether there are other available accommodations; whether the employee is a direct threat to himself or others) and is the best evidence of the employer’s good faith participation in the interactive process. In addition, the use of checklist(s) is further evidence of all steps taken by the employer to accommodate employees. The ADA Officer/ Coordinator must be mindful to keep accurate and complete records of any and all efforts taken to provide accommodations (in whatever form) to employees.

If you are currently not using an ADA Accommodation Request Form, job descriptions and/or checklists as tools to evaluate accommodations requests, please feel free to contact us to obtain our most current version of the forms and checklists—we are happy to share and work with you to develop your system!

#3 Update Handbook and Written Policies
Companies with 15 or more employees should add an ADA policy to their handbook; an ADA policy is as essential as at-will, EEO and an anti-harassment policies.

The ADA requires employers with 15 or more employees engage in the interactive process and provide reasonable accommodations to disabled employees. Likewise, the ADA prohibits discrimination and harassment on the basis of an employee’s actual disability, being regarded as having a disability, or having a record of disability. There is no downside in including a policy in the handbook addressing and affirming the company’s compliance with the ADA and directing employees to submit all requests for accommodation to a designated ADA Officer/ Coordinator. Indeed, such a policy will prove to be valuable in responding to an ADA claim.

In addition to adding an ADA policies, you should also review your handbook to ensure all policies comply with the ADA. The EEOC is targeting companies with “no fault attendance policies” (See my recent blog article). Therefore, if you have such a policy, you must edit it to allow exceptions in the case of disabled employees.

TakeAwayThe Takeaway:
The ADA requires expeditious handling of employees’ requests for accommodation—so be ready to roll in 2015 by updating your procedures, forms, and policies now!

IS RUDOLPH DISABLED?

Charging Party Rudolph files an EEOC charge alleging disability discrimination and harassment against his employer. His charge states:

I am Rudolph.  I am a long term employee at Santa’s Workshop in the North Pole, under the direct supervision of Santa Claus.   I have been discriminated against because of my actual disability (cosmetic disfigurement) and/or my perceived disability and/or a record of my disability (my disability has been documented in numerous stories and songs) in violation of the Americans with Disabilities Act.  I am in need of accommodations to do my job and my supervisor knows this—leading the other reindeer on Christmas Eve causes severe chapping of my nose due to consistently strong headwinds.  Further, I have been harassed by my coworkers who laugh, call me names, and exclude me from their reindeer games because of my disability in violation of the Americans with Disabilities Act; the harassment I have endured is well known to all, even the children of our community.

Santa receives Rudolph’s charge of discrimination and is incredulous: How could Rudolph do this during the busiest time of year—doesn’t he know I have to check millions of boys’ and girls’ names on the list?  His charge isn’t accurate: in fact, all of the reindeer love Rudolph, they shouted out his name in glee!

What do you think: Is Rudolph Disabled? Does he require an accommodation? Use the checklist below to determine if Rudolph fits within the ADA/ ADAAA definition.
Definition of Disability (after January 1, 2009): A physical or mental impairment that substantially limits a major life activity, or a “record” of such a condition.  The ADA also covers an individual who has been “regarded as” having a disability, which mean that s/he was subjected to an alleged discriminatory action because of an impairment (unless the impairment was minor and transitory).

The Checklist:

DOES THE INDIVIDUAL HAVE A CURRENT DISABILITY

Does s/he have an impairment? Yes ____ No___

If yes, what is the impairment?_____________________

Is a major life activity affected by the impairment? Yes ___ No____

If yes, identify the major life activity:___________________________

(e.g., walking, speaking, breathing, hearing, seeing, thinking, standing, interacting with others, communicating, performing manual tasks, bending, caring for oneself, reading, sleeping, working, eating, or major bodily functions)

Does the impairment substantially limit the major life activity? Yes___ No______

Describe the limitation: ______________________________________________

(Discuss what the individual cannot do as well as what the individual is able to do.  Compare the individual’s ability/ limitations to those of the average person. Analyze the condition without medication, mitigating measures or behavioral modifications.)

How long is the condition expected to last?___________________________________

DOES THE INDIVIDUAL CLAIM S/HE HAS A “RECORD OF” A DISABILITY?

Does s/he have a record of an impairment? Yes ____ No___

If yes, what is the impairment?_____________________

Was a major life activity affected by the impairment? Yes ___ No____

If yes, identify the alleged major life activity:___________________________

(e.g., walking, speaking, breathing, hearing, seeing, thinking, standing, interacting with others, communicating, performing manual tasks, bending, caring for oneself, reading, sleeping, working, eating, or major bodily functions)

Did the impairment substantially limit the major life activity? Yes___ No______

Describe the limitation: ______________________________________________

(Discuss what the individual cannot do as well as what the individual is able to do.  Compare the individual’s ability/ limitations to those of the average person. Analyze the condition without medication, mitigating measures or behavioral modifications.)

How long did the condition last?___________________________________

HAS THE INDIVIDUAL BEEN “REGARDED AS” HAVING A DISABILITY?
Does s/he claim s/he has been “regarded as” having an impairment? Yes ____ No___

If yes, what is the impairment?_____________________

Does s/he claim that s/he has been subjected to an allegedly discriminatory employment action because of an actual or perceived impairment? Yes ____  No______

Is the impairment minor and transitory? Yes _____   No ____

CURBING LEAVE ABUSE DURING THE HOLIDAY SEASON

ornaments1‘Tis the season to be jolly, and for shopping, entertaining, decorating, caroling, cooking, eating and generally enjoying life.  So who can blame employees for getting a little, well, “creative” and taking “liberties” in explaining their need to be away from the office during the holiday season?

As many HR professionals will attest, each December sees a spike in “sick leave” and FMLA and ADA accommodation requests, and not just because it is cold and flu season!  Not only do employees face many tempting distractions, but many employees have accrued sick days which they will lose if they do not use them by December 31st.  So, the first “achoo” or sniffle is reason enough for a sick day . . . or is it?

ABSENT
Take these steps now to combat sick leave, ADA, and FMLA abuse:

Holly10. Establish and Enforce Call-In Procedures

To help reduce the effects of last minute no-shows, employers may draft and enforce company call-in procedures. Does the call-in policy require employees to call in and speak with their supervisor, a member of management, or human resources by a specified time before the shift? If so, ensure employees are following the policy and aren’t circumventing it by leaving voice mails, or worse, sending e-mails.  If an employee does leave a voice mail or send an email to report a sick day, make sure either a manager or HR representative calls him or her as soon as possible to verify the need for leave.

Holly9.  Develop a Script

When an employee calls in sick (or a manager calls the employee to verify the reason for leave), ask questions about the illness and need for leave.  Under the FMLA, the ADA, and the ADAAA, employers have the right to obtain information from employees about why they require leave.
Here are some questions to consider asking employees when they call in sick:

  • What is the reason for the absence?
  • What part of the job can the worker not perform?
  • Will they see a doctor for their illness?
  • Have they taken leave for this condition before?  If so, when?
  • When did the employee first know he or she would need to be absent from work?
  • When will they be able to return to work?

Holly8.  Formalize Your Process

checklistRequire employees to put their leave request, including sick leave request, in writing.  Employees must attest to the reason for the leave and that providing false or misleading information about an absence will result in disciplinary action, up to and including termination.  Once employees understand there will be a paper trail for leaves of absences (and consequences for dishonesty), they will be discouraged from taking leave they don’t need.

Holly7.  Ensure a FMLA Certification or ADA Accommodations Questionnaire Is Fully Completed
A medical certification form is an employer’s primary tool against FMLA abuse, so require employees to certify their FMLA qualifying absence.  Likewise, the ADA/ADAAA permits employers to obtain limited medical information necessary to support a request for accommodation.  This form is vital for assessing whether the employee is “disabled” and various reasonable accommodations.  The employer should insist the forms be fully completed, valid, and support the need for leave.  When a certification has entries missing or is vague or ambiguous, an employer must take action!

In some instances, an HR professional (or leave administrator or management official) may contact the health care provider to ensure that he or she actually prepared the certifications and to clarify the handwriting or meaning of a response.

Holly6.  Doubt the Employee or the Doctor?  Ask for a Second (and Third) Opinion

Employees who have reason to doubt the validity of an initial FMLA certification may ask for a second opinion.  Likewise, under the ADA/ADAAA, an employer may require a fit-for-duty examination if it is job-related and consistent with business necessity.

Holly5.  Check In Periodically

Keeping the lines of communication open can go a long way in preventing leave abuse.  Checking in on employees periodically to see how they’re doing is legal—as long as you don’t ask employees to do any work while they’re out and you don’t harass them about returning to work.

Holly4.  Request Recertification When Needed

The FMLA regulations offer a number of opportunities to seek recertification of the need for FMLA leave.  As a general rule, employers may request recertification no more than every 30 days and only in cases where the employee has actually been absent from work for the FMLAcovered  medical condition.  However, employers may request recertification in less than 30 days if:

  • The employee seeks to extend an existing FMLA leave;
  • Circumstances described in the previous certification have changed significantly;
  •  Information is received that casts doubt on the employee’s stated reason for the absence or the continuing validity of the certification.

Employers can also reevaluate an employee’s need for reasonable accommodations.

Holly3.    Control Scheduling Treatment and Consider Transfers

FMLA regulations require employees taking intermittent leave for treatment, therapy, or doctors’ visits to schedule those absences in a way that least disrupts the employer’s operation.  HR should communicate with the employee about the frequency of treatment, office hours of the health care provider, and ways the employee may be able to alter the schedule to reduce disruptions.

Likewise, if the need for intermittent leave is foreseeable, an employer may transfer the employee during the period of intermittent leave to an available alternative position for which the employee is qualified and better accommodates the reoccurrence of leave or allow an employee to work part time.

Holly2.    Fully Investigate Patterns of Intermittent Leave and Suspicious Circumstances


Where there is a specific pattern of leave, for instance when intermittent leave absences occur exclusively on Fridays and Mondays, employers can and should investigate whether the pattern is consistent with the medical certification and reasonable accommodation.  For instance, an employer can send a copy of the employee’s recent attendance record to the certifying physician to inquire whether the pattern of leave is consistent with the employee’s actual need for medical leave.

Likewise, when an employer receives information that casts doubt on the employee’s stated reason for the absence, this should prompt an investigation.  For instance, an employer may learn an employee on leave is engaging in activities while on leave that are inconsistent with the employee’s health condition.  The example provided in the regulations is an employee playing in the company softball game while on leave for knee surgery.  An employer who receives such information should not rush to judgment and immediately terminate the employee.  Instead, the employer should conduct a thoughtful, thorough, and complete investigation into the facts.

Holly1.  Update Your Policies and Procedures

Now is a good time to audit and update your policies and procedures, particularly your ADA policies and procedures to ensure they are in line and up to date.

GRINCHYou don’t have to be The Grinch to use these tips.  These tips won’t entirely eliminate the problem of employees trying to take advantage of leave—probably nothing can—but they will help.  If you’d like us to review your policies and procedures to help cut down abuse, give us a call.

5th CIRCUIT RULES FIVE MONTHS OF ADDITONAL LEAVE BEYOND FMLA LEAVE PER SE   IS NOT A REASONABLE ACCOMODATION

EnoughFACTS:   Plaintiff Mary Alice Silva worked on the SWAT team of the City’s Police Department. On June 28, 2011, she broke her leg while jogging and underwent surgery the next day. Ms. Silva took a FMLA leave which expired on September 21, 2011.

Prior to the expiration of her FMLA leave, Ms. Silva requested to be placed in a light duty or desk duty job; alternatively she asked for an extension of her FMLA leave “or any other available medical or other available leave” because she did not expect to be able to return to work “for at least a month” after her FMLA leave expired. Ms. Silva also provided a copy of her doctor’s assessment, stating she would require “at least one to two more months of physical therapy,” and further stating her doctor was “willing to sign for her to continue to be off work for at least another three months if necessary.”

Instead of engaging in the interactive process or providing Ms. Silva with an accommodation, the Police Department promptly terminated her on September 28, 2011, citing Ms. Silva’s failure to return to work and further stating there were no available positions that met Ms. Silva’s physical limitations. Ms. Silva sued under the ADA, e.g., alleging the Police Department failed to engage in the interactive process and failed to provide her with a reasonable accommodation.

The District Court granted summary judgment, dismissing Ms. Silva’s ADA claim; the Fifth Circuit affirmed.

Legal Analysis—Important Points:

(1) The Fifth Circuit held Ms. Silva failed to produce any evidence the Police Department had a vacant, available light or desk duty position available at the time of her request. This fact is fatal to her claims; the Court reiterated the Police Department was not required to create a light duty position for Ms. Silva as an accommodation.

(2) The Court held the Police Department was relieved from its duty to engage in the interactive process under this scenario. The Court stated: “even if a genuine issue of material fact exists as to whether the city participated in the interactive process in good faith, its dereliction cannot be said to have led to a failure to reasonably accommodate Silva because there is no evidence that a reasonable accommodation was feasible.”

(3) The Court reiterated an employer’s failure to engage in the interactive process is not a per se violation of the ADA. Instead, an employer violates the ADA only when its unwillingness to engage in a good faith interactive process leads to a failure to reasonably accommodate an employee. The Police Department’s refusal to engage in the interactive process did not lead to a failure to accommodate when there were no available accommodations.

(4) The Court dismissed Ms. Silva’s claim regarding her request for extension of leave as a reasonable accommodation. The Fifth Circuit reasoned “Silva could not (or simply did not) provide an estimate of when she could resume her former job duties except to say that it would be longer than one month in the most optimistic scenario.” The Court held Ms. Silva’s request for leave amounted to a request for indefinite leave.

(5) Finally, the Court also noted Ms. Silva’s request that the Police Department hold her job open for her until she was able to return, which turned out to be five months after her FMLA leave expired, “cannot be squared with the statute’s entitlement to a ‘reasonable’ accommodation.’”

TakeAwayThe Takeaway: A prudent employer would apply this case cautiously. We would never advocate skipping the interactive process entirely, even when the employee’s requested accommodation seems to be impossible.

However, what is clear is that an employer is not required to accommodate a request for indefinite leave; an employee’s failure to provide an estimated return to work date can support denial of the requested extended leave. Furthermore, it appears that 5 months beyond FMLA leave (3 months), for a total of 8 months’ leave may be the Court’s outermost limit on a reasonable leave from the workplace under the ADA.

The case is Silva v. City of Hidalgo, Texas, ___ Fed. Appx. ____, 2014 WL 351168, at *1 (5th Cir. July 17, 2014).