ADA may require leaves of absence beyond FMLA mandates

Managing medical leaves of absence is the bane of nearly every HR department I come in contact with. In my experience, companies either react too harshly (immediate termination upon the expiration of 12 weeks of FMLA-eligible employees), or too passively (extending leaves of absence indefinitely). HR World has posted an interesting article on extending FMLA leaves of absence beyond 12 weeks, and attempts to strike a balance by asking how long is too long.

The article points out that a company may want to extend a leave beyond 12 weeks so as not to lose a valuable employee. The issue, however, runs much deeper, and under certain circumstances an extended unpaid leave of absence might be required as a reasonable accommodation under the ADA for employees with a qualifying disability. The ADA's regulations specifically provide that an unpaid medical leave qualifies as a reasonable accommodation and must be provided to an otherwise qualified individual with a disability. 29 C.F.R. § 1630.2(o). Thus, an employer may still have to provide unpaid leave as a reasonable accommodation: 1) after an employee exhausts the 12 weeks of FMLA leave, or 2) if an employer has fewer than 50 employees or if the employee has less than one year of service.

The EEOC's Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (at Q. 21) gives the following helpful example:

An employee with an ADA disability needs 13 weeks of leave for treatment related to the disability. The employee is eligible under the FMLA for 12 weeks of leave (the maximum available), so this period of leave constitutes both FMLA leave and a reasonable accommodation. Under the FMLA, the employer could deny the employee the thirteenth week of leave. But, because the employee is also covered under the ADA, the employer cannot deny the request for the thirteenth week of leave unless it can show undue hardship. The employer may consider the impact on its operations caused by the initial 12-week absence, along with other undue hardship factors.

No leave must be extended indefinitely, and at some point a leave of absence is going become an undue hardship to the employer and can be ended. When that is, though, is not only going to vary from employer to employer, but also from employee to employee. Each specific leave of absence must be analyzed on its own merits, case by case. Six months is generally a good rule of thumb to follow, but there are many circumstances where a court could deem six months unreasonably short. The bottom line is to work with the employee and the medical caregiver to determine how long an employee needs to be off work, and make the best efforts, within reason, to accommodate the necessary leave for employees who qualify for protection under the ADA.

New I-9 form released - UPDATED

While not the most exciting news, all companies should update their hiring forms with the new I-9 available from the U.S. Citizenship & Immigration Service. Use of the new form will become mandatory on December 26. Because no one knows for certain when this will occur, it is best to put the new form in place now to avoid incurring any fines or penalties for non-compliance. The new form only applies to new hires. Employers do not have to re-verify the immigration status of employees who have already completed I-9 forms.

The changes to the I-9 are as follows:

• 5 documents have been removed from List A of the List of Acceptable Documents -- Certificate of U.S. Citizenship, Certificate of Naturalization, Alien Registration Receipt Card, Unexpired Reentry Permit, and Unexpired Refugee Travel Document.
• One document -- Unexpired Employment Authorization Document -- was added to List A.
• All Employment Authorization Documents with photographs have been consolidated as one item on List A.
• Instructions regarding Section 1 of the Form I-9 now indicate that the employee is not obliged to provide his or her Social Security number, unless the employer participates in E-Verify.
• Employers may now sign and retain Forms I-9 electronically.

As always, employers do not file I-9 forms with the government, but must keep them either for three years after the date of hire or for one year after employment is terminated, whichever is later. All completed forms that fall within that time frame must be available for inspection by authorized U.S. government officials (such as Immigrations & Customs Enforcement or the Department of Labor).

Employers should use the publishing of this new I-9 form as a tickler to review and update document retention policies to ensure that the retention of I-9s is provided for, or to put a document retention policy in place if one does not exist.

Information about the new I-9 form, as well as a copy of the form for download, are available at www.uscis.gov/i-9.

The downside of family-friendly workplaces

Over the Thanksgiving holiday, Dilbert ran a small arc on family responsibility discrimination. The company decides to become "family friendly", and to compensate for the lost productivity, openly hostile to single people at the same time. So as not to run afoul of any potential copyright issues, you can go here to read the 11/22 strip and here to read the 11/23 strip.

While eating my leftovers, I got to thinking about what exactly it means to be "family friendly," and whether we are creating a new marginalized class of employees -- the young, the single, the childless -- all of whom are presumed to have the disposable time to work extra hours and pick of the slack for those who are the beneficiaries of family-friendly policies and the EEOC's new regulations against family responsibility discrimination. But, just because they are presumed to have disposable time, does that mean that they should necessarily bear the burden?

There are two ways to look at this issue. On the one hand, those without family responsibilities will in all likelihood some day have a family, and will need the same family-friendly policies about which they may now grumble and complain. On the other hand, managing a "family friendly" workplace is not just managing employees who have families and their attendant responsibilities, but also managing the employees without families, upon whom the added burden of picking up the slack for their co-workers often falls.

I have no answers as to the right approach. How to handle the problems posed by the Dilbert strips is largely an organizational issue. I am curious, though, to find out if my readers think that this is even a problem, and if so, how it should best be handled. Please post your thoughts below.

OCRC rebukes Govenor's attenpt to stall new maternity leave rules

I was planning on taking the holiday weekend off, but then Governor Strickland had to publicly come out against the adoption of the new pregnancy leave regulations.

According to this morning's Cleveland Plain Dealer, Ohio's Governor has asked the Ohio Civil Rights Commission to indefinitely delay its implementation of new maternity leave rules. The Governor said Ohio's businesses need more time to study the proposed maternity-leave timeframe, which will grant up to 12 weeks of medically recommended leave for pregnancy, childbirth, and related medical conditions for every female employee of virtually all Ohio businesses. The OCRC politely rejected the Governor's plea, and will send its proposed rule to the legislative rule-making committee for consideration on December 3 as planned. The Commission Chairperson, Barbara Sykes, a Strickland appointee, said that the Commission has already granted a concession to businesses by making the duration of the leave tied to the employee's doctor's medical approval.

The adoption of these new rules get more bizarre with every turn. First, the "medically recommended" language was slipped in at the 11th hour with no fanfare. Now, the state's Democratic governor, swayed by business interests, is asking his appointee to delay adoption of a measure that is is largely lauded by members of his own party. While it is doubtful that the legislative rule-making body would block these regulations, nothing would surprise me at this point. Everyone should assume that the new rules will go into effect as planned, but continue to watch this blog for further updates on Ohio's new pregnancy leave regulations.

What else I'm reading this week #6

Happy Thanksgiving everyone. I'll be taking a much needed few days off, from both the hectic practice of law and the frantic blogging I've been doing. For everyone's holiday reading pleasure, another batch of worthy clicks:

Age Discrimination–Solutions, from The Word on Employment Law, providing some dead-on practical advice on how to guard against age claims.

Federal Judicial Center: Plaintiffs Doing Relatively Well in Federal Employment Discrimination Cases, from the Workplace Prof Blog, giving us the surprising statistic that only between 9-14% of employment cases are dismissed on a summary judgment in the federal court system.

Worker Uses Version Of "The Dog Ate My Homework", from Legal Juice, jumping over the pond to Ireland to give us the story of an employee awarded 1,000 euros after being terminated for falsely telling his employer he needed off from work to take his sister to the doctor.

Summary of ADA Restoration Act Senate hearing, from Workplace Horizons, reporting on the Senate hearings on legislation to strip away many pro-business protections from the ADA.

Sports and HR - What the Knicks Teach Us About Manager/Employee Friendships, from The HR Capitalist, drawing advice on how to deal with problem employees from the Isiah Thomas/Stephon Marbury debacle. Sexual Harassment Policy & Practice, from the Pennsylvania Employment Law Blog, following up on my earlier series of posts on best practices for sexual harassment policies and remedial actions.

Blawg Review #135 is worth your time

Blawg Review #135 is online, hosted this week on Transgender Workplace Diversity, a blawg devoted to law, politics, and policy issues for HR, diversity, and legal professionals. It is a conglomeration of an amazing number of posts from the past week on diversity, discrimination, and civil rights issues. Please jump on over and support the tremendous amount of effort Dr. Weiss put into this weeks Blawg Review.

Congress debates legality of English-only rules

In June, I wrote that under the EEOC's regulations, English-only workplace rules are presumptively illegal unless required by business necessity. See English-only workplaces spark lawsuits. The debate over the appropriateness of these regulations has now reached the floors of both houses of Congress. Conservative lawmakers were spurred to action after the EEOC sued the Salvation Army over the termination of two Hispanic employees for speaking Spanish while sorting clothes. In April, Republican Senator Lamar Alexander, with the support of three Democrats, attached an English-in-the-workplace provision to the EEOC budget bill. That bill, which passed the Senate in June, would make it unlawful for the EEOC to bring lawsuits challenging English-only workplace rules. In the House, meanwhile, Hispanic members narrowly won a vote in July to reject a similar provision. Last week, however, the House took a non-binding vote of 218-186 urging House negotiators on the underlying budget bill to accept Alexander's language. Meanwhile, Speaker Nancy Pelosi has promised that Alexander's English-only provision will be killed, and House-Senate negotiations on the underlying bill have been put off indefinitely. Fox News quotes Senator Alexander: "One way to make sure that we have ... a little more unity that is our country's greatest accomplishment is to make certain that we value our common language.... And that we not devalue it by allowing a federal agency to say that it is a violation of federal law for an employer in America to require an employee to speak English on the job."

While Congress and the EEOC hash out these issues, employers should tread lightly if considering implementing an English-only rule. Such policies should only extend as far as necessary to reach the articulated business reason, and employment counsel should be consulted to evaluate whether the policy is not discriminatory as written or as applied.