Claims of disability discrimination are on the rise.
The U.S. Equal Employment Opportunity Commission said claims alleging violations of the Americans with Disabilities Act accounted for the second-most-filed cause of action with the agency, second only to retaliation, for the most recent federal fiscal year that ended Sept. 30.
It is critical that employers educate themselves of the rights and obligations of employers and employees under the ADA. The law is difficult to administer because the legal obligations frequently seem somewhat obscure, and this is particularly true where “leave” is the requested accommodation.
The law itself is designed to be flexible.
Once an employee comes forward advising of the need for an accommodation, the employer is obligated to engage in what is called the “interactive process” or “flexible dialogue” to determine what the employee needs as an accommodation, and whether reasonable accommodations can be provided.
Unlike the Family Medical Leave Act, which is very forms driven and leaves little room for misunderstanding, the ADA requires an open and ongoing dialogue allowing much room for interpretation.
When employees seek to take ongoing leave even after their FMLA is exhausted, employers must determine whether ongoing leave can be a reasonable accommodation under the ADA.
While additional leave may be a reasonable accommodation, a recent case from the 5th U.S. Circuit Court of Appeals re-established the long-standing interpretation of the law that indefinite leave is not a reasonable accommodation.
The employee in the case had a history of attendance issues and leaves of absence, even after exhausting FMLA.
The company tolerated this for a while, but her medical paperwork failed to support her need for ongoing leave and it gave no indication of precisely how much time off she would need. According to the case, the employee failed to cooperate with the employer in providing updated medical documentation to support her requested time off.
The company terminated her for violation of its attendance policy because of her failure to provide medical documentation sufficient to justify her time off.
She sued for a whole host of alleged discriminatory practices, including those under the ADA. The lower federal court dismissed the case on summary judgment and the appeals court affirmed.
The appeals court noted that although employers must engage in the interactive process, “[i]f a breakdown in this process ‘is traceable to the employee,’ the employer is protected from liability.”
The court suggested that during the interactive dialogue, it was not clear how much time off the employee requested, adding her “doctor’s notes suggest that it might have been indefinite, which is manifestly not a reasonable accommodation.”
In addition, the employer “repeatedly requested adequate documentation to no avail.”
As such, the law provides that, “If an employee fails to provide requested documentation to substantiate a claim of disability and thereby causes a breakdown in the interactive process, the employer has not violated the ADA.”
Employers often have to address employees like this who threaten litigation if the employer takes employment action and yet refuse to cooperate with reasonable requests for information.