[nfbmi-talk] goes to blind employees and employers as well

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The following article is forwarded to you by the DBTAC-Great Lakes ADA Center (
www.adagreatlakes.org)
for your information:

Business Management Daily

September 5, 2011

Check your leave policies! EEOC looks at return-to-work issues

by Mark S. Mathison, Esq., Gray Plant Mooty, Minneapolis

Now is the time to review your return-to-work policies and practices for employees on leave. They need to be integrated without regard to the reason that
prompted leave. Otherwise, you may find yourself focusing too narrowly on the FMLA, workers’ compensation statutes or disability discrimination laws without
considering the interplay between all of them.

Treating workers differently depending on the reason for their absence opens the possibility of a disability discrimination claim. It’s sure to attract
the attention of the EEOC, which has been aggressively pursuing such cases.

Consider an employer that allows job-injured workers to return to light-duty positions but doesn’t offer that option to disabled workers or those injured
off the job. To successfully defend such a policy in a dispute, the employer would have to establish a legitimate business reason for it. For example,
it might be able to show that high workers’ comp costs justified light-duty work for those injured on the job, but not for others.

Light duty vs. reasonable accommodations

Don’t confuse light duty with reasonable accommodations.

Often, “light duty” simply means a less physically demanding job than the one an employee held before a leave began. Light duty might be one reasonable
accommodation for a disabled worker.

But reasonable accommodations can take many forms, including returning an employee to her original job with assistance from a co-worker or adaptive technology
that helps the employee perform essential job functions. Reasonable accommodations might also mean modifying a policy, perhaps temporarily, if it would
enable an employee to return to work.

A fundamental requirement of disability discrimination laws is that an employer must engage in an “interactive process of accommodation” with the employee.
That means having a meaningful dialogue with the employee about the possibilities for accommodations that might allow a return to work, and whether any
of those possibilities is reasonable under the particular circumstances.

Enter the EEOC

One accommodation that employers often fail to consider is extending leave past the limits normally available under the FMLA or other leave policies. Another
possible accommodation: allowing workers to return temporarily to positions different from their original jobs.

Failing to consider offering a qualifying employee extended leave or a temporary position has landed a number of employers in trouble with the EEOC.

In EEOC v. Sears, Roebuck & Co., a court approved a $6.2 million set­tle­ment involving Sears’ automatic ter­mi­nation of employees whose leave expired
under the company’s policy on workers’ compensation absences. The EEOC alleged Sears violated the ADA duty of accommodation by refusing to consider allowing
employees to return in a different capacity or granting a brief extension of leave.

In a similar case, the EEOC sued UPS, requesting class-action status and alleging that UPS’ denial of additional leave after the policy maxi­mum had been
reached was a failure-to-accommodate violation of the ADA.

In EEOC v. Supervalu, Inc., the EEOC alleged the employer violated the ADA by prohibiting employees from returning from disability leave unless they could
return to “full service” employment without any medical restrictions. The lawsuit also alleged that Supervalu unlawfully prohibits employees not injured
on the job from participating in the company’s 90-day light-duty program.

And in EEOC v. Princeton Health­Care System, the EEOC alleged ADA violations because the employer alleg­edly terminates employees who have no FMLA eligibility
if they cannot return to work within seven days, and refuses to grant any leave beyond the 12 weeks required by FMLA.

The suit further alleges that Princeton HealthCare grants no exceptions to these policies for qualified individuals with disabilities who need additional
leave as a reasonable accommodation.

Check your leave policies

These cases demonstrate the increased risk faced by employers with inflexi­­ble leave policies or light-duty pro­grams available only to certain categories
of employees.

Here are two principles to keep in mind to avoid legal difficulties:

List of 2 items
• Your policy may set a maximum leave period, but you must be willing to at least consider accommodating a qualifying employee by extending leave allowing
him or her to return to work in a different or modified position.

• You should generally consider light duty for a qualifying employee with a disability on the same basis as other employees. Any program that limits the
availability of light-duty jobs to a certain class of individuals—such as those who have experienced on-the-job injuries—risks violating the ADA unless
you can establish a legitimate business reason for the difference.

list end

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