If an employee requested a month’s unpaid leave to get treatment for cancer, what would you say? Would you agree immediately? Or would you hesitate, thinking you weren't sure you'd be able to do without that employee for an entire month?
If you have 15 or more employees, you'd better say yes. Because if you don’t agree, you may be running afoul of the Americans with Disabilities Act (ADA). After nearly a quarter-century of interpretation and expansion, the ADA goes far beyond the guidelines of the original 1990 law and covers situations that some people would not consider to be true disabilities.
Last year, the federal Equal Employment Opportunity Commission (EEOC) released an expanded definition of the disabilities protected under the law that for the first time specifically named cancer as well as diabetes, epilepsy and various mental disabilities. The announcement continued a expansionist trend dating back to 2008, when Congress passed an amendment to the original law that countered a string of restrictive judicial decisions that had gradually reduced the number of eligible disabilities.
Today, the EEOC has taken the relaxed definitions included in the law quite broadly, says Carrie Hoffman, a labor and employment lawyer with Gardere Wynne Sewell LLP in Dallas. “The EEOC’s position," Hoffman says, "is that everything constitutes a disability under the Americans With Disability Act.”
Erring on the Side of Caution
One result of the broad definition of what constitutes a disability is an end to once-common legal tussles over whether a given condition is a protected disability. Now, when an employee asks for an accommodation, employers are advised to assume the condition is a disability and move directly into discussions about how to address it.
This has produced a tremendous change in how employers interact with employees with disabilities, says J. Randall Coffey, an employment attorney with Fisher & Phillips LLP in Kansas City. “The focus [is] now mostly on, was an accommodation that was requested by the employee reasonable, or was there anything that qualified as a request for an accommodation?” Coffey says.
In some ways, what's considered reasonable accommodation hasn’t changed. Employers still aren’t required to make accommodations that mean employees no longer have to perform the essential functions of their job. But one thing that has changed in recent years is the development of leave from work as a potentially reasonable accommodation.
In part, this has occurred because many conditions, such as cancer, that once involved temporary inability to perform a job weren't previously considered disabilities. Now that a cancer patient is protected as disabled, however, if they need to take time off work for treatment, all all-too-common occurrence, that could be considered reasonable accommodation and required under the ADA.
Who's Required to Act?
Few employers are aware that time off from work can be considered a reasonable accommodation, however, even if they're aware that many more conditions are protected under the ADA, employment lawyers say. And even fewer are aware that the ADA applies to businesses with as few as 15 employees, notes Eric Welter, an employment attorney in Herndon, Virginia.
That's probably because many federal regulations apply only to businesses with 50 or more employees. One of those is the Family Medical Leave Act (FMLA), which Welter says confuses employers who aren’t sure whether a requested leave for cancer treatment is covered by FMLA or ADA. “The trap a lot of people fall into is they think they don’t have 50 employees so they’re not covered by FMLA,” Welter says.
Another complicating factor is that EEOC hasn’t nailed down how lengthy a leave can be before it's no longer considered reasonable. Attorneys say they're receiving a growing number of calls from employers who wonder whether an employee’s request for one leave after another constitutes a reasonable accommodation under the law or whether it can be refused.
It could be years before EEOC clarifies that, if it ever does. Meanwhile, Coffey notes, one New York appeals court has said in that state, indefinite leave may be considered a reasonable accommodation. That ruling could potentially mean an employer must keep a position open forever for a disabled worker, filling in with temporary employees or asking other workers to pick up the slack.
The idea of what constitutes reasonable accommodation has also grown with the expansion of what disabled has been defined to include. For instance, a worker with attention deficit disorder may need to be shepherded through one or a series of special training courses to try to find ways to keep doing their work despite their disability.
In another shift in recent years, conditions that are being completely mitigated for the most part by medication or some other means may still be considered disabilities. For instance, an employee with epilepsy may reasonably ask to have a dog at work, because canines can sometimes warn of impending attacks. This request may have to be accommodated even if the employee’s condition is being effectively controlled with medication.
The expanded definitions of disability, combined with the continued vagueness of what constitutes disability, have greatly increased the number of legal problems businesses face under ADA. For instance, in 2007, before the 2008 amendment loosened the disability definition, EEOC fielded 15,575 ADA complaints. By 2010, after the EEOC had come out with its first round of regulations based on the amended law, that number had swelled to 25,165, a figure that's remained roughly the same since.
Monetary benefits paid to EEOC claimants have also increased more rapidly, more than doubling from $54 million in 2007 to $109 million in 2013. One reason for that is that many employers are reluctant to risk spending $100,000 or more in legal costs to defend a case in court due to the vagueness of the law, Coffey says.
When it comes to the ADA today, the bottom line is that far more conditions may be protected disabilities and far more accommodations may be deemed reasonable. And if an employee comes to you asking for help with almost any condition, the wisest response is to start talking about how, not whether, to do it.
As Welter says, “It’s a big problem with the EEOC if you get a request for an accommodation and you simply say no.”
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