Labor & Employment Blog
EEOC Issues New Guidance To Clarify The Interface Between Employee Leave And The Americans With Disabilities Act
By NANCYJ. TOWNSEND and SAMUEL C. BLINK
The EEOC has recently released guidance to inform employers when and how leaves of absence must be granted to accommodate employees’ disabilities, as required by the Americans with Disabilities Act (ADA).
EQUAL ACCESS TO LEAVE UNDER AN EMPLOYER’S LEAVE POLICY
Employees with disabilities must have access to leave on the same basis as all other employees. So, if an employee’s request for leave would be allowed under the employer’s existing leave policy, that request should be treated the same as a request by any other employee for reasons unrelated to a disability.
GRANTING LEAVE AS A REASONABLE ACCOMMODATION
The EEOC guidance makes clear that reasonable accommodation under the ADA may include adjustments in the employer’s leave policy. So, the employer must allow unpaid leave as a reasonable accommodation, if it does not create an undue hardship on the employer. And, of course, the employer cannot penalize an employee for requesting or using leave as a reasonable accommodation.
When assessing whether leave would create an undue hardship, the employer may consider several factors, including:
- the amount and 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; and
- the impact on the employer’s operations and its ability to serve customers or clients appropriately and in a timely manner.
EMPLOYEE LEAVE AND THE INTERACTIVE PROCESS
The EEOC warns that if an employee with a disability needs more time off than the existing leave policy, FMLA leave, or workers’ compensation leave would allow, the employer must “change the way things are customarily done” to enable that employee to work. The employer must promptly engage the employee in the “interactive process” to determine the feasibility of additional unpaid leave to accommodate the disability.
Through this interactive process, the employer might ask for specific reasons the employee needs the leave, whether the leave is a block of time or intermittent, whether specific days of the week are needed, whether the leave is predictable or not, when the need for leave will end, and whether other accommodations may also be effective for the employee. The employee should work with a health care provider to get prompt answers to these questions. With the employee’s permission, the employer can likewise obtain information from the employee’s health care provider to confirm or elaborate on information that the employee provided.
The interactive process may continue while the employee is absent, especially if the employee did not provide a fixed return date. An employee with a fixed return date cannot be required to give periodic updates, although the employee may reach out to check on the progress of an employee on extended leave.
ADAPTING EXISTING LEAVE POLICIES
Employers with maximum leave policies, beware: a company policy that allows a maximum of 12 weeks per year as unpaid leave would likely comply with the Family and Medical Leave Act (FMLA), but could clearly violate the ADA. Likewise, a policy that imposes discipline after a specified number of unplanned absences could also violate the ADA when the absences relate to an employee’s disabilities. The ADA requires employers to make exceptions to these policies, as a reasonable accommodation for employees with disabilities unless the exception would create an undue hardship.
RETURN TO WORK
An employer will violate the ADA by prohibiting an employee with a disability from returning to work until all medical restrictions have cleared. Instead, an employee must be permitted to return from leave with doctor-provided restrictions if the employee can perform the essential functions of the job, with or without accommodations. In some situations, the requested reasonable accommodation will be reassignment to a new job. The EEOC takes the position that if reassignment is required, the employer must reassign to a vacant position for which the employee is qualified, without competing with other applicants. But, the employer need not place an employee with a disability in a position to which another employee is entitled under a uniformly-applied seniority system. The EEOC advises the employer to work with the employee and the employee’s medical providers to explore possible reasonable accommodations that do not create an undue hardship.
COMMUNICATION ISSUES FOR EMPLOYERS WITH MAXIMUM LEAVE POLICIES
An employer’s use of form letters that instruct employees to return to work by a certain date or face discipline or termination might give rise to a claim under the ADA. Instead, the EEOC suggests that employers modify such letters simply to ask the employee to maintain communication with the employer and inform the employer as early as possible if the employee needs additional unpaid leave. This invites a continuation of the interactive process, enables the employer to assess whether the additional leave can be granted, and minimizes the potential hardship to the employer.
NAVIGATING EMPLOYEE LEAVE AND THE ADA
Please contact Nancy J. Townsend at (219) 769-1313 with any questions concerning your employment or accessibility responsibilities under the ADA.
NANCY TOWNSEND is a partner in the law firm of Burke Costanza & Carberry LLP. She provides legal services to employers and human resource departments to devise and implement employment policies, employment agreements, non-compete agreements, confidentiality agreements, and employer handbooks that comply with federal and state law. She also defends employment litigation, assists with EEOC and civil rights investigations of employers, aids in the resolution of employee disputes, and advises on wage and hour and discrimination matters.
Ms. Townsend is admitted to practice in Indiana, Illinois, and Texas and nearly all of the federal and state courts in those jurisdictions. She is a member of the American Bar Association, Indiana Bar Association, Illinois Bar Association and Lake County Bar Associations, as well as the Notre Dame Clubs of Chicago and Northwest Indiana. She earned her B.A. degree from Marian University and her J.D. degree from Notre Dame Law School.
SAMUEL C. BLINK is a third-year law student at the Robert H. McKinney School of Law: Indiana University and is a summer associate at the law firm of Burke Costanza & Carberry LLP.
This article is intended for general interest and is not intended to be used or relied upon as legal advice.
The Americans with Disabilities Act (ADA) was signed into law 25 years ago, on July 26, 1990. Besides the gratification of promoting equal opportunity, the ADA and other laws offer tangible benefits to employers who hire workers with disabilities.
Title I of the ADA aims to help people with disabilities access the same employment opportunities and benefits available to others. Employers with 15 or more employees cannot discriminate and must comply with the ADA by making reasonable accommodations. “Reasonable accommodations” are changes that accommodate employees with disabilities without causing the employer “undue hardship” (too much difficulty or expense). Businesses that hire and accommodate people with disabilities may qualify for tax credits and deductions, discussed below.
Disabled Access Tax Credit for Small Businesses
The Disabled Access Tax Credit provides small businesses a tax credit each and every year for expenses to provide access to persons with disabilities and become compliant with the ADA. Tax credits provide a dollar-for dollar reduction of income tax liability, meaning that a $5,000 tax credit saves $5,000 in taxes. Eligible small businesses are those that earned $1 million or less or had no more than 30 full time employees in the previous year. They may take a tax credit for 50 percent of "eligible access expenditures" that exceed $250 but do not exceed $10,250 for a taxable year. This Disabled Access Credit adds up to potential tax savings of $5,000 per year for each and every year that the business incurs access expenditures. Businesses claim the tax credit by filing IRS Form 8826 with their federal tax return.
The Internal Revenue Code limits the types of expenditures for which a business may take these credits. The Disabled Access Credit is allowed only for qualified expenditures made for the purpose of complying with the ADA. So Tax Court decisions have denied the credit for purchases that were ADA-compliant but not necessary either to bring the taxpayer into ADA compliance. It also applies only to businesses that are required to comply with the ADA, such as places of public accommodation or employers with 15 or more employees.
Eligible expenditures might include expenses as amounts necessary to:
- remove architectural, communication, physical, or transportation barriers that prevent a business from being accessible to, or usable by, individuals with disabilities;
- provide qualified readers, taped texts, and other effective methods of making materials accessible to people with visual impairments;
- provide qualified interpreters or other effective methods of making orally delivered materials available to individuals with hearing impairments;
- acquire or modify equipment or devices to accommodate individuals with disabilities; or
- provide other similar services, modifications, materials or equipment.
The Disabled Access Credit cannot be taken for expenses of new construction. And, the barrier removals, services, modifications, materials or equipment must meet technical standards of any applicable ADA Accessibility Guidelines.
So, a small business that buys equipment for $10,000 to make a reasonable accommodation under the ADA could take a tax credit of $4,875 on its next tax return: $10,000 exceeds $250 by $9,750; fifty percent of $9,750 is $4,875. A business that makes accommodations at an expense of $10,250 (or more) could take the maximum tax credit of $5,000: $10,250 exceeds $250 by $10,000; fifty percent of $10,000 is $5,000. Certain types of expenditures over $10,250 may also qualify for an Architectural Barrier Removal Tax Deduction.
Architectural Barrier Removal Tax Deduction for All Businesses
The Architectural Barrier Removal Tax Deduction encourages businesses of any size to remove architectural and transportation barriers to the mobility of persons with disabilities and the elderly. Businesses may claim a deduction of up to $15,000 a year for qualified expenses for "qualified architectural and transportation barrier removal expenses," items that normally must be capitalized. This includes expenses to make a business facility or its public transportation vehicle more accessible to, and usable by, individuals who are handicapped or elderly. The definition of a "handicapped individual" is similar to the ADA definition of an "individual with a disability." To qualify for the deduction, the modifications must meet certain standards established by IRS regulations.
Businesses may use the Disabled Access Credit and the architectural/transportation tax deduction together in the same tax year, if the expenses meet the requirements of both sections. The Architectural Barrier Removal Tax Deduction would be the difference between the total qualifying expenditures and the amount of the Disabled Access Credit claimed. Businesses claim the deduction by listing it as a separate business expense on their income tax return.
Navigating the Eligibility Requirements
Please contact Nancy J. Townsend at (219) 769-1313 with any questions concerning your employment or accessibility responsibilities under the ADA.
This article is not intended to be used or relied upon as tax advice.
The federal Pregnancy Discrimination Act of 1978 (PDA)[i] expanded the definition of sex discrimination under Title VII to include pregnancy discrimination, requiring that employers treat “women affected by pregnancy, childbirth, or related medical conditions…the same…as other persons not so affected but similar in their ability or inability to work.” So, United Parcel Service created a policy that it believed was “pregnancy blind” and non-discriminatory, allowing alternative assignments only for specified workers --- those with on-the-job injuries, ADA-covered disabilities, or lost driving certifications. When UPS was approached in 2006 by a pregnant employee needing light duty for the remaining several months of her pregnancy, the company refused ---- she wasn’t within the class of workers eligible for alternative assignments. Peggy Young sued, claiming that the policy created disparate treatment for pregnant workers, in violation of the PDA.
As that lawsuit wound its way through the courts and after the United States Supreme Court granted certiorari to review it, the EEOC issued a guideline in 2014 for the application of Title VII and the ADA to pregnant employees.[ii] It seemed to run against prior federal government policy[iii] and is now being reviewed by the EEOC, in light of the recent decision in the Peggy Young v. UPS case.[iv]
Almost 10 years after the acts that birthed the litigation, the SCOTUS has clarified the framework for proving disparate-treatment claims of discrimination for workplace policies that do not expressly single out pregnant women for differential treatment. The Supreme Court did question the legitimacy of UPS’s allowing light-lifting accommodations for many non-pregnant employees while categorically refusing to accommodate pregnant employees with similar lifting limitations. It noted that the company’s multiple policies to accommodate non-pregnant employees might reveal that its reasons for failing to accommodate pregnant employees were not sufficiently strong, and could create an inference of intentional discrimination. The Court asked: “[W]hy, when the employer accommodated so many, could it not accommodate pregnant women as well?”
Ultimately, the Court refused to adopt a policy that would require for “all pregnant workers” the same accommodations that the employer gives to “any non-pregnant worker,” remarking that it was not the intent of the PDA to “grant pregnant workers an unconditional most-favored-nation status.”[v] Instead, the Court applied the judicial standard it had formulated for racial discrimination in McDonnell Douglas Corp. v. Green in 1973.[vi] By that standard, if a pregnant woman can show that she was refused an accommodation that the employer allowed to others “similar in their ability or inability to work,” she makes a prima facie case of pregnancy discrimination.[vii] The burden then shifts to the employer to show legitimate, nondiscriminatory reasons for the difference in treatment for the pregnant employee. The employee may then offer proof that the employer’s reasons are pretextual, by showing that the company’s policy imposes a significant burden on pregnant workers that is not justified by the company’s stated nondiscriminatory reasons.[viii]
By showing that UPS allowed more favorable treatment to similarly-situated non-pregnant employees, Peggy Young created an issue of fact that would, at trial, shift the burden to UPS to show legitimate nondiscriminatory reasons for its policy. The Court remanded the case to the Fourth Circuit Court of Appeals to consider whether Ms. Young could prove that UPS’s offered reasons for the difference in treatment were pretextual, that its explanation did not justify the significant burden on pregnant workers. The decision seems to confirm the adage that “[e]mployers can treat pregnant women as badly as they treat similarly affected non-pregnant employees,” but not worse.[ix] If it chooses to allow accommodations for some, it cannot exclude similarly affected pregnant workers.
The Young v. UPS decision (and the daunting possibility of such a lengthy court battle) should prompt employers assess their policies to assure that they are not inadvertently creating an unjustified burden on pregnant workers. The entire gamut of workplace policies ---- hiring, promotion, leave, compensation, light duty, alternative assignments, worker accommodations ---- carry a potential to discriminate. An employer’s policy might legitimately offer differential treatment to non-pregnant employees with particularly hazardous jobs, those whose workplace presence is particularly needed, those who have more seniority, or those who are over the age of 55, for example.[x] But, employers must understand and articulate their strong, legitimate, nondiscriminatory reasons for any practice that creates a burden for pregnant workers. Those reasons must be understood by owners and management and communicated to supervisors and employees, through updated handbooks, policies, and training programs.
NANCY J. TOWNSEND is a member of the Employment Law Group of Burke Costanza & Carberry LLP. She advises clients on employment issues under federal and state law, including drafting sound employment policies, employee handbooks, employment contracts, and separation agreements. She can assist with employer reductions in force, responses to EEOC discrimination charges, and compliance with wage and hour requirements under the FLSA, Indiana wage payment and wage claim statutes. She also counsels employers on laws against employment discrimination, including fair employment practices under Title VII, the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), and Indiana anti-discrimination statutes.
This article is provided for informational purposes only, does not constitute legal advice, and is not intended to be used as a substitute for specific legal advice or opinions. No recipients of content from this site should act or refrain from acting on the basis of content of the site without seeking appropriate legal advice not intended as legal advice.
[i] The Pregnancy Discrimination Act of 1978 expanded the definition of sex discrimination under Title VII to include discrimination “because of or on the basis of pregnancy, childbirth, or related medical conditions,” stating affirmatively that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work.” 42 U.S.C.A. § 2000e(k).
[ii] EEOC Compliance Manual §626-I(A)(5) (July 2014).
[iii] The EEOC guidelines prohibited employers from distinguishing pregnant employees’ limitations from others based on the source of the limitation. Id. It stated expressly that an employer could not “deny light duty to a pregnant employee based on a policy that limits light duty to employees with on-the-job injuries.” EEOC Compliance Manual §626-I(A)(5), at 626.0028 (July 2014). This rule seemed to depart from the federal government’s previous position that pregnant employees with work limitations were not similarly situated to employees with limitations from on the job injuries. See Young v. United Parcel Serv., Inc., No. 12-1226, 2015 WL 1310745, at *13 (U.S. Mar. 25, 2015) and cases cited therein.
[iv] Young v. United Parcel Serv., Inc., No. 12-1226, 2015 WL 1310745 (U.S. Mar. 25, 2015).
[v] Young v. United Parcel Serv., Inc., No. 12-1226, 2015 WL 1310745, at *13 (U.S. Mar. 25, 2015).
[vi] A plaintiff can prove a disparate-treatment claim of discrimination either by direct evidence that a workplace policy, practice, or decision relies expressly on a protected characteristic, or by using the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under that framework, the plaintiff has “the initial burden” of “establishing a prima facie case” of discrimination. Id., at 802, 93 S.Ct. 1817. If she carries her burden, the employer must have an opportunity “to articulate some legitimate, non-discriminatory reason[s] for” the difference in treatment. Ibid. If the employer articulates such reasons, the plaintiff then has “an opportunity to prove by a preponderance of the evidence that the reasons ... were a pretext for discrimination.” Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).
[vii] The Court in Young v. UPS found it plausible that the categories of UPS employees who were allowed reassignment to light duty could not reasonably be distinguished from the pregnant employee, so that they might be “similar in their ability or inability to work.” Young v. United Parcel Serv., Inc., No. 12-1226, 2015 WL 1310745, at *17 (U.S. Mar. 25, 2015).
[viii] Young v. United Parcel Serv., Inc., No. 12-1226, 2015 WL 1310745, at *16 (U.S. Mar. 25, 2015).
[ix] Troupe v. May Dept. Stores Co., 20 F.3d 734, 738 (7th Cir. 1994) (Posner, J.). See also In re Carnegie Ctr. Associates, 129 F.3d 290, 297 (3d Cir. 1997) (“PDA merely requires that an employer treat a pregnant woman in the same fashion as any other temporarily disabled employee.”).
[x] Young v. United Parcel Serv., Inc., No. 12-1226, 2015 WL 1310745, at *11 (U.S. Mar. 25, 2015).
Indiana’s Defense of Marriage Act (DOMA), which prohibited same-sex marriage and refused to recognize same-sex marriages from other states, was ruled unconstitutional on June 25, 2014. Chief Judge Richard L. Young entered a final judgment in three federal lawsuits that challenged Indiana’s DOMA: Baskin v. Bogan, Fujii v. Indiana Governor, and Lee v. Pence. The Seventh Circuit Court of Appeals quickly stayed that ruling pending appeal. That ruling in Baskin followed the United States Supreme Court in United States v. Windsor in June 2013, which invalidated a portion of the Federal DOMA, which had defined marriage for purposes of federal law as “only a legal union between one man and one woman.” Every other federal court that has considered the issue since Windsor has found that laws forbidding the licensing or recognition of same-sex marriages are unconstitutional. These rulings impact federal and state laws that control the workplace.
ERISA Rights After Windsor
After Windsor, the U.S. Department of Labor changed the definition of “spouse” under ERISA to mean any individuals who are lawfully married under any state law. The revised definition affected ERISA health and welfare rights: tax treatment of employees’ health care premiums for same-sex spouses under IRS Section 125 premium-only plans; employees’ use of pre-tax dollars to pay for needs of same-sex spouses from FSA and HSA accounts or reimbursements from employer-sponsored HRAs; continuing COBRA coverage for same-sex spouses; HIPAA special enrollment privileges for the same-sex spouse; and same-sex dependent care through the Dependent Care Assistance Program. The definitions also changed ERISA rights arising from Qualified Joint and Survivor Annuities, Qualified Pre-Retirement Survivor Annuities, IRA rollover distributions, QDROs, hardship distributions from 401(k)s and 403(b)s, spousal consent for employee loans, and spouses’ rights to defer distributions from retirement plans.
FMLA Rights After Windsor and Baskin
The Federal Family and Medical Leave Act (FMLA) requires employers with 50 or more employees to allow unpaid leave to care for a spouse with a serious health condition. After Windsor, Labor Department regulations controlled FMLA leave and defined spouse as “husband or wife as defined or recognized under state law, for purposes of marriage in the state where the employee resides.” 29 C.F.R. §815.102.
If Baskin is affirmed, it will require Indiana to recognize same-sex marriages and will require Indiana employers to allow FMLA leave to care for same-sex spouses of Indiana residents. Illinois residents must currently be allowed FMLA leave to care for their same-sex spouses because Illinois allows and recognizes same-sex marriages. Indiana’s other border states, Kentucky, Michigan, and Ohio, do not currently allow or recognize same-sex marriages but that may soon change. Federal courts have ordered those states to recognize same-sex marriages but have stayed the orders during the appeals, which will be heard on August 6, 2014.
Interestingly, same-sex married couples working for the same employer might now find themselves with less “Bonding Leave” or “Parenting Care Leave” because married employees must share those types of FMLA leave whereas unmarried employees each have their 12 weeks’ leave for those purposes.
State Employment Laws After Baskin
The decision in Baskin, if affirmed, will also impact other Indiana employment statutes. An unemployed person who moves to join a same-sex spouse in another region would retain eligibility for Indiana unemployment benefits. IC 22-4-15-1. Likewise, employees would be entitled to Indiana military family leave when their same-sex spouses are ordered to active duty. IC 22-2-13-11. Same-sex spouses would also have spousal rights under Indiana Small Employer Group Health Insurance. IC 27-8-15-1 et seq.
Keeping Up in the Workplace.
As these laws change, Indiana employers and ERISA plan sponsors should carefully consider:
- Updating ERISA plan documents, administrative procedures and forms that define “spouse.”
- Updating company policies for documenting marriages, civil unions, and domestic partnerships and their validity.
- Implementing changes with managers and administrative personnel to ensure they understand the changes in ERISA benefits, leave requirements, and other employee rights.
- Updating employee handbooks and communicating changes to employees, emphasizing the need for documentation of marital status and updated beneficiary designations.