EEOC Is Making a List and Checking It Twice and It Isn't Even Christmas Time Yet

Here we are in the middle of October. The end of the year is rushing toward us, probably faster than we want it to. The Halloween decorations will be down in the retail stores and they will be putting the "ThanksChristmasGivingDay" decorations up and Santa will appear in the malls. The song that features the words "..he's making a list and checking it twice" will be blaring on the radio and over the store speakers. (Did that reminder of how close Christmas is make you wince?)

Well there is already one group that is making a list and checking it twice and it is NOT Santa. It is the EEOC. A One Minute Memo from the law firm SeyfarthShaw, LLP arrived in my email this morning entitled EEOC Takes Aim at Companies Policies Limiting The Duration of Medical Leaves. (click on the title to see the pdf) The opening line for this document is "Recent actions by the U.S. Equal Employment Opportunity Commission (EEOC) have signaled its intent take a more aggressive approach in enforcing the Americans with Disabilities Act (ADA). One employment practice that the EEOC is specifically targeting involves company medical leave of absence policies that place limits on the amount of medical leave."

When the ADAAA (The Americans with Disabilties Act Amendments Act of 2008) became effective on January 1, 2009 it was evident that, with the broadened definitions of disability and the requirement for an active accommodation discussion, more lawsuits would be filed against employers. And this is becoming true. The SeyfarthShaw memo goes on to say "Over the past two months, the EEOC has also filed a number of pattern and practice lawsuits on behalf of employees of large employers alleging that the employers violated the ADA by rejecting extensions of medical leave as a reasonable accommodation for employees with disabilities. The EEOC asserts that any employer that maintains an inflexible maximum leave policy, which it will not extend or otherwise modify in order to accommodate individuals with disabilities, is unlawful." And along with this statement a warning from the EEOC was issued "Acting Chairman of the EEOC, Stuart J. Ishimaru, highlighted the administration’s increased focus on ADA enforcement, noting that these cases 'should send a wake-up call to corporate America that violating the American with Disabilities Act will result in vigorous enforcement by the EEOC.' EEOC Regional Attorney John Hendrickson confirmed the EEOC’s position that policies that 'set arbitrary deadlines for returning to work after medical treatment unfairly keep disabled employees from working.'"

So what does this mean for HR? It means you need to review your policy and make sure it it up to date. You need to make sure that if someone asks for an accommodation you engage in a vigourous interactive process that is documented. And you need to realize that an extension of a medical leave will probably be seen as a reasonable accommodation.

The big question yet unanswered is: When will an extension be considered unreasonable? This will probably only be decided by a court case. Which one of you out there wants to be the test case?