CALL 503.248.1134

200 SW Market Street, Suite 1900
Portland, Oregon 97201

ADA In Focus: Extended Leave As Reasonable Accommodation And EEOC Press Releases

October 13, 2016

By Michael G. McClory

In the (fictional) mailbag today The Bullard Edge fields a question from Wendy, the HR Director at Mid-Town Medical Center.  Wendy asks about an employee who is demanding an extended medical leave (seven months have been taken already).  Although the employee is not cooperating, she has thrown out buzzy words: disability, reasonable accommodation, EEOC, and lawsuit.  Wendy is concerned about these buzz words and wants to know what her options are.  Here is Wendy’s question and our response (which includes an editorial regarding EEOC’s press release practices).
Wendy’s Question:

I am in a bit of an ADA pickle.  This is one of those situations with all of the buzz words and no answers ~ unless you have an answer (and I hope you do).
My question concerns an employee at Mid-Town Medical Center where I am the Human Resources Director.  You should know us.  We are the biggest ~ and the best ~ hospital in the city.
The employee is a nurse technician named Val deCoy.  Val is a long-time employee, and a good one, too, despite being quirky.  (For example, when walking through doorways, Val does not like to step on the threshold.)   Since March we have been dealing with a medical issue involving Val.  She had a medical episode and underwent emergency surgery.  In connection with that she started a medical leave of absence. 
Initially, Val’s medical leave of absence was FMLA and OFLA protected.  She exhausted that fairly quickly, though, because she already had taken over half of her leave before her medical episode.  After she exhausted FMLA and OFLA we continued to provide her with medical leave. 
We have treated this like a request for reasonable accommodation and have attempted to go through the interactive process.  It has been tough sledding, though.  Val has provided a series of medical notes from her treating doctors.  One indicated that she continued to recover from emergency hip surgery and was not ready to return to work.  In mid-August she provided a note that vaguely referred to “post-operative complications” that would prevent her from working for at least two more months.
That brings us to Monday of this week.  I reached out to Val by email to let her know that I would like to speak with her about her leave status and that I might need updated information about the duration of her leave.  Val returned my call; since I was out, she left a voicemail message.  It was somewhat nasty, I thought.  Essentially, Val said that MTMC knows she is disabled (she referred to the “ADA Act Disability Law”) and that she is not ready to return to work.  She also made the following threat.
“I demand that my reasonable accommodation rights be respected.  I am sick of being harassed.  You are violating my rights not to be bothered.  EEOC told me that you have to give me reasonable accommodation unless you can’t do it.  You’re a big hospital.  If you don’t back off I am going to ask EEOC to sue you.”
I’m worried she is right.  She has something medical going on, which under the revised ADA probably means she is disabled.  The hospital can probably get by without her; we have done that for the last seven months.  Do I just roll over and grant her request?
The Bullard Edge‘s Response:

That does sound like a pickle, Wendy, but we assure you it is not.  Even if Val is disabled, she does not have unfettered rights to be accommodated in the manner she requests without questions being asked.  We don’t care what she thinks EEOC told her.  Val has a duty to cooperate with you and to participate in an interactive evaluation of her request.
There is a lot in your question and we are going to unpack it slowly in the following order:
(1) disabled/disability;
(2) reasonable accommodation/undue hardship;
(3) interactive process; and
(4) EEOC’s superficial evaluations and bully approach. 
Please remember that The Bullard Edge is not going to give you legal advice on this situation.  Rather, we will take a generic look at applicable law and at the kind of facts that are relevant.

You and Val are probably both correct in believing that Val falls within the ADA’s definition of disability.  We will not spend much time on this. 
As you know, there are three categories of disability: actual disability; disability based on a record of impairment; and disability based on a perception of impairment (“regarded as”).  The category relevant to Val’s situation is actual disability, which means a physical or mental impairment that substantially limits her in the performance of one or more major life activities
One of the results of the ADA Amendments Act of 2008 was to loosen the definition of disability.  Before the modification of the ADA we might have spent time considering whether Val’s condition is permanent or temporary or comparing her limitation to the average person in the general population.  The revisions make those conversations less relevant.  In light of your description it seems likely that Val is disabled under the ADA.
Reasonable Accommodation/Undue Hardship:

Val seems to be seeking additional medical leave (and she does not want to be bothered with requests for medical support for leave).  Additional leave may be a reasonable accommodation in some circumstances.  It is not reasonable in every circumstance.
The ADA generally requires an employer to reasonably accommodate the known disability of a qualified applicant or employee, unless doing so would impose an undue hardship on the operation of the employer's business.  Accommodations that might be reasonable may include modifications to the job application process, modifications to the work environment or facilities, modifications to the manner or place/time of job performance, or the provision of equipment or assistive technology.  There is not a laundry list of accommodations that may be reasonable; every request must be addressed on a case by case basis. 
Undue hardship is the check on reasonable accommodation.  An otherwise reasonable accommodation is not required if providing it would cause an undue hardship or if providing it would create a direct safety threat to the employee or others.
Interactive Process:

Your question includes few facts related to the quality of the interactive process between Mid-Town Medical Center and Val.  This is significant because it is through the interactive process that you determine whether any particular form of accommodation is reasonable.  Is additional medical leave reasonable in Val’s case?  The interactive process is the vehicle for answering that question.
The “interactive process” is a flexible and informal communication between employer and employee.  The goal is to determine whether reasonable accommodation is needed and, if so, what form of accommodation is appropriate, if any.  Think of it as an information gathering two-way street.  The goal is for the employer and employee to be able to understand the employee’s work-related limitations and to understand the capacity of the employer to help overcome those limitations.
We cannot tell you whether additional leave as (apparently) requested would be reasonable.  We also cannot tell you whether the interactive process has been sufficient up to this point.  We have a number of questions that you did not address in your letter.  For example, you do not say how many nurse technicians the hospital employs, whether they are part of a bargaining unit, how they are scheduled to work, whether the hospital has any relevant personnel policies (extended medical leave, personal leave, etc.) or how the hospital has adjusted over the seven months Val has been on leave.  These are just some of the facts that we believe would be relevant to the evaluation of a request for additional medical leave.
Lastly, with regards to Val’s eyebrow raising voicemail message (in response to your request for an update on her status), we note that both the employer and employee have an obligation to participate in the interactive process.  Val’s voicemail message makes it sound like she is not interested in being fully cooperative at this point.  An employee’s failure to cooperate in the interactive process may result in the accommodation being denied.  Val may be approaching this territory.
EEOC’s superficial evaluations and bully approach:

Your question, Wendy, remarkably seems to track an EEOC press release from last week.  EEOC announced that it had settled an ADA lawsuit it had filed in 2015 on behalf of a nurse technician seeking additional medical leave.  No other facts are offered. 
In its press release, EEOC uncritically states that the employer “refused to provide the additional medical leave as an accommodation, and fired” the employee.  The agency concluded by stating this: “Such alleged conduct violates the Americans with Disabilities Act (ADA), which protects employees from discrimination based on their disabilities and requires employers to provide reasonable accommodations unless doing so would be an undue hardship.”
The Bullard Edge has some significant concerns about EEOC’s press release.  While the agency has accurately recited the law (the ADA does prohibit unlawful disability discrimination), EEOC makes no effort to attach that law to facts (and the facts are necessary when implying that the law has been broken). 
Instead, the press release is a sucker punch.  EEOC publicly identifies the accused employer and implies (without facts) that the employer engaged in unlawful conduct.  This is a bad practice with no positive results.  The agency does not reassure the public that it is correctly enforcing the law.  EEOC also provides no guidance to employers about conduct that does and does not comply with the ADA.  Rather, EEOC simply demonstrates that it is willing to behave like a bully and use the cost of litigation as a cudgel. 
In this case, the $15,000 settlement amount is well below the cost of defense.  Thus, one reasonable interpretation of EEOC’s press release is that the employer made a business decision to settle a case having no merit.  The employer decided it was better to pay $15,000, and to endure the agency’s negative publicity campaign, than it was to incur the cost of a full trial.
The Bullard Edge has a great deal of respect for the true mission of the EEOC and believes that the agency is committed to its mission.  However, EEOC continually allows itself to get sidetracked.  The agency should focus on cleaning up its regulations, providing training to employees and employers, and more critically evaluating the merits of the many charges it sees on an annual basis.
Wendy, we hope this helps you determine how to analyze Val’s demand. 
Best regards,
The Bullard Edge