By Terri Rhodes, MBA, CPDM, CCMP

CEO
DMEC

Do you find the Americans with Disabilities Act (ADA) constantly climbing higher on your “to do yesterday” list? You are not alone. Employers continue to ask for ADA guidance and insight because even after more than 25 years, ADA compliance continues to confound and confuse.

As employers, we try to do the right thing and get an employee back to gainful employment as quickly as possible. The good news is that most accommodation requests continue to be easy to make and cost less than $500. But those requests are not the ones that keep us up at night, and pile up on the “to do” stack.

It is the 20% of cases that end up taking 80% of your time. These are the ones where you need help and guidance, and the area where most employers struggle is in determining how much leave is enough leave.

Case in point: Illinois Action for Children, a nonprofit organization, fired an employee who was on leave receiving treatment for breast cancer rather than granting her request for additional leave for more treatment. The EEOC brought a suit against them (EEOC v. Illinois Action for Children, Civil Action No. 17-cv-6224) in U.S. District Court for the Northern District of Illinois, Eastern Division on Aug. 28, 2017.

EEOC Chicago District Regional Attorney Greg Gochanour pointed out that employers have a duty to provide reasonable accommodations to people with disabilities that enable them to perform the essential functions of their job. Courts have repeatedly found that in certain circumstances, a leave of absence may constitute a reasonable accommodation under the ADA.

In another lawsuit from that same district, Macy’s was sued by the EEOC, and Gochanour gave the same message as the one above. In the court’s opinion, Macy’s acted unreasonably — and unlawfully — when it denied Ms. Moore a single day’s absence to address her disability-related health complications. Macy’s refusal to allow Moore’s absence prevented her from continuing to do the job she had done well for many years.

This serves as a reminder that leave is a reasonable accommodation, and it does not automatically end at a certain point in time. Each accommodation request requires a separate evaluation and a process for determining if leave should be an accommodation. You cannot assume that what worked for one employee will necessarily work for another. Nor should you expect that because you make a reasonable accommodation for one employee, it will meet the need of every other similar request.

As we enter the fall season, it might be time to review your policies and practices again to ensure that you are reviewing every accommodation request independently, and that your process is well documented.

Here are just a few things to look for:

• Inconsistent policy language for occupational and non-occupational injury management
• Policies that have automatic separation
• Return-to-work policy for on-the-job injuries only
• No documented process for managing workplace accommodations

A wise IAM professional will also ensure that policies require human resources to seek legal guidance before taking adverse employment actions. And finally, don’t forget to train your supervisors!