State News : New Jersey

 The new EEOC Guidance issued on May 9, 2016 upsets many of the assumptions employers routinely make in regard to leaves of absence.  The EEOC states, “An employer must consider providing unpaid leave to an employee with a disability as a reasonable accommodation if the employee requires it, and so long as it does not create an undue hardship for the employer.” The Guidance adds that this is the case when:

• The employer does not offer leave as an employee benefit;

• The employee is not eligible for leave under the employer’s policy; or

• The employee has exhausted the leave which the employer provided as a benefit (including leave exhausted under a workers’ compensation program or the FMLA or similar state or local laws).

  The EEOC provides that reasonable accommodation does not require an employer to provide paid leave beyond what it provides as part of its paid leave policy.  The employer can deny requests for unpaid leave when it can show that providing the accommodation would impose an undue hardship on its operations or finances.  This may sound comforting but in reality it is hard for an employer to show undue hardship as is seen below.

  The following examples come from the May 9, 2016 Guidance, and this Guidance clearly may cause employers to revise their leave policies:

  Example Five from the EEOC Guidance

  “An employer’s leave policy does not cover employees until they have worked for six months.  An employee who has worked for only three months requires four weeks of leave for treatment for a disability.  Although the employee is ineligible for leave under the employer’s leave policy, the employer must provide unpaid leave as a reasonable accommodation unless it can show that providing the unpaid leave would cause undue hardship.”

  Example Six from the EEOC Guidance

  “An employer’s leave policy explicitly prohibits leave during the first six months of employment.  An employee who has worked for only three months needs four weeks of leave for treatment of a disability and the employer tells him that if he takes the leave, he will be fired.  Although the employee is ineligible for leave under the employer’s leave program, the employer must provide unpaid leave as a reasonable accommodation unless it can show that providing the unpaid leave would cause undue hardship.  If the employer could provide unpaid leave without causing an undue hardship, but fires the individual instead, the employer will have violated the ADA.”

  Example Seven from the EEOC Guidance

  “An employer’s leave policy does not cover employees who work fewer than 30 hours per week.  An employee who works 25 hours per week and who has not worked enough hours to be eligible for leave under the FMLA requests one day of leave each week for the next three months for treatment of a disability.  The employer must provide unpaid leave as a reasonable accommodation unless it can show that providing the unpaid leave would cause undue hardship.”

  The EEOC further states that when an employee informs the employer that an accommodation is needed for a disability, the employer should promptly engage in an interactive process with the employee.  The employer may need additional information to confirm that the condition is in fact a disability under the ADA.  With the employee’s permission, the employer may obtain additional information from the employee’s health care provider to understand the need for leave.

  These three foregoing examples will surprise most employers.  Example seven defies conventional logic because the employer is not subject to FMLA but is still required to offer unpaid leave.  Examples five and six are also surprising because in both instances the employer’s leave policy is disregarded.

  Tha interactive process may be very burdensome for reasons that the EEOC provides in Example 9:

  Example Nine from the EEOC Guidance

  “An employee with a disability is granted three months of leave by an employer.  Near the end of the three month leave, the employee requests an additional 30 days of leave.  In this situation, the employer can request information from the employee or the employee’s health care provider about the need for the 30 additional days and the likelihood that the employee will be able to return to work, with or without reasonable accommodation, if the extension is granted.”

  The EEOC also warns employers not to ask an employee on leave with a fixed return date for periodic updates, although it says that the employer may reach out to an employee on extended leave to check on the employee’s progress.  This is at best a subtle distinction:  the employer may ask about progress but not about periodic updates.

  Another area that the Guidance attacks is maximum leave policies.  It states that although employers are permitted to have leave policies that establish the maximum amount of leave an employer will provide or permit, this policy must be flexible when someone with a disability is involved.

  Example Eleven from the EEOC Guidance:

  “An employer covered under the FMLA grants employees a maximum of 12 weeks of leave per year.  An employee uses the full 12 weeks of FMLA leave for her disability but still needs five additional weeks of leave.  The employer must provide the additional leave as a reasonable accommodation unless the employer can show that doing so will cause an undue hardship.  The commission takes the position that compliance with the FMLA does not necessarily meet an employer’s obligation under the ADA, and the fact that any additional leave exceeds what is permitted under the FMLA, by itself, is not sufficient to show undue hardship. . . “

  This is one of the most alarming aspects of the Guidance because it creates an open-ended period of leave beyond the FMLA requirement.  It also makes it extremely difficult for HR Managers to make intelligent decisions on when to take action in the event that an employee has used up all FMLA leave time.

  Example 12 from the EEOC emphasizes that it does not matter whether the employer is covered under the FMLA:

  Example Twelve from the EEOC Guidance:

  “An employer is not covered by the FMLA, and its leave policy specifies that an employee is entitled to only four days of unscheduled leave per year.  An employee with a disability informs her employer that her disability may cause periodic unplanned absences and that those absences might exceed four days a year. The employee has requested a reasonable accommodation, and the employer should engage with the employee in an interactive process to determine if her disability requires intermittent absences, the likely frequency of the unplanned absences, and if granting an exception to the unplanned absence policy would cause undue hardship.”

  The burdens on employers are significant under this Guidance.  The Guidance suggests that the employer must consider the following issues:

• The specific accommodation that the employee requires

• The reason an accommodation or work restriction is needed

• The length of time an employee will need the reasonable accommodation’

• Possible alternative accommodations that might effectively meet the employee’s disability-related needs; and

• Whether any of the accommodations would cause an undue hardship

  The only defense an employer has to a request for reasonable accommodation for additional leave is undue hardship and that is a very vague standard.  The Guidance says that in assessing undue hardship an employer may take into account leave already taken by the employee, whether or not that leave is for FMLA or workers’ compensation.  The undue hardship considerations include:

• The amount and/or length of leave required

• The frequency of the leave

• Whether there is any flexibility with respect to the days on which leave is taken

• Whether the need for intermittent leave on specific dates is predictable or unpredictable

• The impact of the employee’s absence on coworkers and on whether specific job duties are being performed in an appropriate and timely manner

• The impact on the employer’s operations and its ability to serve customers/clients appropriately and in a timely manner

  Employers will have to exercise great caution in denying unpaid leave requests in the future based on this Guidance.  It is true that the Guidance is not law, but practitioners and judges do refer to Guidance regularly.  The job of an HR Professional has becomes even more challenging given this new Guidance.

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  John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.