BY TOM STARNER
In the recent past, there has been an uptick in EEOC charges related to the interplay between the Family and Medical Leave Act and the Americans with Disabilities Act. For employers, those numbers can mean only one thing: Unwanted litigation.
Yet, while the reasons for the increase in FMLA/ADA-related cases may not be controllable by employers, there are steps they can take to help avoid being on the wrong end of an EEOC lawsuit.
"More cases are going to trial and more cases will settle for more money than they have in the past, partially resulting from the FMLA and ADA significantly intersecting," said Patrick Hicks, founding shareholder of the Las Vegas office at the Littler Mendelson law firm.
For example, Hicks said, an employer may give an employee all the FMLA leave they are entitled to (maximum for non-military leave is 12 weeks, 26 for military). However, under the ADA, an employer also has the obligation to reasonably accommodate a "disabled" employee.
The employer may think just in terms of the FMLA and not consider ADA requirements, which can extend the FMLA leave. That is a critical mistake.
"If an employee has a serious health condition, it may or may not be a disability, but due to changes in the ADA in 2009, that's no longer the issue," he said.
Hicks was referring to the ADA Amendments Act of 2008, which amended the ADA and other disability nondiscrimination laws at the federal level. The ADAAA broadened the number and types of people who are protected under the ADA and other federal disability nondiscrimination laws.
According to Hicks, the ADAAA requires that courts interpreting the ADA and other federal disability nondiscrimination laws focus on whether the covered entity has discriminated, rather than whether the individual seeking the law's protection has an impairment that fits within the technical definition of the term "disability."
Because the ADA Amendments Act expanded this definition to include more people, employers now have a harder time denying FMLA leave for employees who need it because they still can't return to work, due to their health status.
And, Hicks said, that's where the FMLA and ADA intersection emerges. Employees taking an FMLA leave who run out of leave time can make an additional claim under the ADA, which requires a reasonable accommodation by the employer. In such a situation, a reasonable accommodation often results in extended leave.
The numbers bear out that there has been increased activity with AD-related cases. In 2008, there were 19,453 charges brought by the EEOC. In 2012, that number had jumped to 26,379. Hicks also noted that of all EEOC charges, 25 percent fall within the ADA.
"The bar has been lowered when it comes to a focus on reasonable accommodations," he said. As a result, ADA claims are more attractive, more difficult to get dismissed and settlement value has gone up.
In terms of disabilities and EEOC settlement stats, 1.6 million people in 2007 made ADA claims based on anxiety disorders. In 2012, that number was 6.4 million. Regarding back impairments, there were 3.8 million claims in 2007. In 2012, that number reached 10 million.
"I've always felt since the ADA was initially passed in 1990, it has been hijacked by the able-bodied community," Hicks said. "We are seeing so many ADA claims brought by individuals with temporary impairments and injuries, not the ones anticipated by the original ADA law."
In 2008, the courts were seeing the same thing, he added. There were employees filing lawsuits who really were not disabled. But in 2008, Congress shifted the focus not on the disability but on what reasonable accommodations the employer can make and are making.
"The bar has been lowered on those claiming to be disabled," he said.
Nancy Leonard, an employment law expert and partner in the Kansas City office of Constangy, said that with the expansion of ADA in 2009, employers actually now can assume that "everyone has a disability," which makes it very difficult to manage requests for ADA accommodation.
"The courts and Congress have mandated that employers no longer consider if a person has an actual disability," Leonard said. "The question now is, did the employer make a reasonable accommodation?"
Leonard, as both a paraplegic and a diabetic, speaks from personal experience.
"It's all kind of a mess right now," she said. "I happen to have a disability, the inability to walk. But diabetes is now considered a disability under the new expansion. The ADA includes such a broad number of people, everyone has a disability. We've gotten to that point, it seems.
"I defend employers and when they get sued, I find it frustrating to navigate this aspect of the ADA," she said.
"The employee still needs to prove they can't return to work [after their FMLA leave], but even a temporary impairment can be a disability under the amended ADA," she said. "If they can't come back and need more leave, employers can no longer just say, 'You don't have any more leave. If you can't come back your employment will be terminated.' The EEOC and private individual litigation said this is a violation of the ADA. Several large companies have reached enormous settlements in these types of cases."
Leonard said that eliminating the chance of being sued is impossible, but the best advice is for an employer to understand that while they may need to give additional leave, they don't have to give indefinite leave. In other words, if a person said they can't return to work and they don't know when they will be able to return, that's not a reasonable accommodation.
"One of the ways I help clients is to get that information about whether it's an indefinite leave," she said. "Employers are entitled to some closure."
Inflexible leave policies are a risk to employers, experts said.
Hicks said employers with "fixed leave" policies should, at the very least, include language that notes employees may be eligible for additional leave as an accommodation under the ADA.
Most of all, employers must remove any language in a leave policy that unequivocally requires employees to return to full duty at the end of FMLA leave. Also, employers should train supervisors to notify HR of all leave and time off requests, so they can be analyzed on a case by case basis.
"That way you can reduce the risk of a claim," he said. "And even if a claim is filed, it puts an employer in a much better to defend itself.
"My experience is that more often than not, employers who violate ADA do so unintentionally," Hicks added. "They just don't know what their legal obligations."
July 15, 2013
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