Andy Gruber, chair of the labor and employment practice at Bingham Greenebaum Doll, joins The HR Risk Podcast to discuss leaves of absence under the ADA. Subscribe to The HR Risk Podcast on iTunes/Apple Podcasts, Stitcher, or your favorite podcast app!
Jennings: As we come up on the podcast’s one-month anniversary, I’m excited to introduce a new feature that I’m calling Insights episodes. These episodes are shorter than the more in-depth conversations you’ve heard thus far and are focused on discrete issues that HR leaders or employment attorneys have encountered in practice. We’ll also continue to do the longer in-depth episodes, including one this week with Eugene Soltes on compliance hotline best practices. For our first Insights episode, I’m pleased to welcome Andy Gruber, the chair of the labor and employment practice at the law firm Bingham Greenebaum Doll, who’ll be discussing leaves of absence requests under the Americans with Disabilities Act. Andy, welcome to The HR Risk Podcast.
Gruber: Well, Andrew, thank you very much for having me.
Jennings: Before we get started, I wonder if you could give our guests just a little bit of a background about yourself and your practice?
Gruber: Certainly. So I’ve been doing management-side labor and employment work now for going on 20 years. I’ve seen the rise and fall of multiple different issues. So from my vantage point, my role really is to counsel clients on some of their most difficult issues and to provide them that risk assessment that everyone needs, as well as real solutions that they can effectuate. And that includes being able to also manage how they deal with their operational folks, because whether it’s talking to the CEO or the CFO or a manager in Human Resources, all of those people ultimately have to put this into action, put my counsel into action in a way in which their business can continue.
Jennings: You’ve worked with clients over the years that have faced a lot of problems. I wondered if you could tell us about one issue that might stick out in your memory as something that’s a risk issue that may not be as thought about as often, but that you’ve encountered along the way in practice?
Gruber: Most certainly. I would say an issue that we’re seeing quite a bit of, and have seen a quite a bit of over the last several years, is this very confusing at times circumstance in which an employee requests a leave of absence under the Americans with Disabilities Act. This is an employee who may have exhausted their Family Medical Leave rights. They may have exhausted other types of paid leave or other types of leave allowances or they just don’t qualify for any of those allowances, legally or by company policy. And they approach an employer with some type of illness, injury, or impairment and they note that they can’t work for some period of time. Before that–when I say “before,” before the courts really looked at expanding the scope of the Americans with Disabilities Act to include working as one of the many ways that somebody declared themselves as disabled–most employers went about denying that type of leave.
Gruber: But as the courts have shown that an allowance of a leave of absence can qualify as a reasonable accommodation under the law, employers are charged with taking a little bit closer look and being more patient, particularly now that even the EEOC’s directives have indicated that everything from a no-fault attendance policy to simply denying an employee’s requests without going through an interactive process can be a potential violation of the ADA. Those are the types of points now that that we’re seeing and it takes a little bit of time and effort to counsel people through those problems.
Jennings: How have you counseled people to address that? What are some of the approaches you’ve seen to addressing this risk and what have been the results from that?
Gruber: I would say the first thing we tell clients is we have to be patient about this. As much as the operational folks that we just talked about in the introduction or somebody else wants to move forward with a separation or to move forward with the hiring of a new individual, we have to be patient and we have to look at each individual circumstance in its own right and under its own set of facts. And that’s what the law requires us to do. So as a hypothetical, we have this employee, they need some type of leave of absence of, say it’s a few weeks, and they don’t otherwise have any rights to it. So how do we now move ahead with making a determination that that leave of absence is not otherwise allowable or a reasonable accommodation under the law?
Gruber: The law gives us the blueprint. It speaks of that interactive process, that same process that you may go through with an employee who would come to you with a restriction that they can’t stand for a period of time, where they have to sit every so once in a while, or they have to be in a certain chair, or this certain other type of accommodation that an employer can examine whether it’s reasonable. But the same interactive process applies to this circumstance in which an employee says, “I need some time off.” And so the first thing we always tell people is “take a moment and look at the circumstances.” How long does the individual need? Can you give them any period of time? Would it be reasonable to provide any amount of leave? And the first place you go to is their direct supervisor, those on the operation side to say, “can you survive” or “can you do what you need to do for a period of time without this employee?”
Gruber: Sometimes if it’s a matter of a day or so. Yes, that can happen, but at the same time, a day or so may not be feasible. There may be a current rush of orders or other sets of circumstances that that employee just needs to be at work every day. We just cannot allow that person not to be there. That said, every circumstance is unique, so once the Human Resources individual or whoever is managing the leave is armed with that type of information from their operational side, they need to reach out to the employee and review what is reasonable, what can be done and what can’t be done. And if ultimately what is able to be done by the employer doesn’t match what the employee’s needs, then there is a possibility that that employee’s leave of absence is going to be denied as not being a reasonable accommodation under the law and the employee may face separation.
Gruber: In other instances there could be a match. It could fit that whatever this employee needs, that’s perfectly reasonable and we can go ahead and allow for that leave of absence in that limited circumstance it’s been requested. Another key component is what I said: they’re limited circumstance that’s been requested. Sometimes employers are faced within indefinite leaves or an extended leave that we don’t know whether it’s going to be extended or not and circumstances can change. That is to say, what’s reasonable one day for an employer’s business may change the next and at times what an employee requires at one point may need to be extended. In each instance, whether that’s the employer saying, “I know we said that we could give you three months, but circumstances in the company have changed and we need somebody in your position right away,” or whether that employee calls and says, “I said I was going to be back within a week, but now I need another three weeks of leave,” the interactive process restarts.
Gruber: You go through the process again, try to see if you can accommodate that leave. If no accommodation can be made, there’s a possible separation event that can occur, but in each instance the employer has done their due diligence by going through and looking at the requested leave, balancing it against what their company’s circumstances and company needs are, and interacting with the employee directly pursuant to the interactive process. Having that communication and trying to determine whether it can be accommodating, whether it’s reasonable to accommodate it, that process takes a little bit of time. But a little bit of time is going to save an employer from inadvertently violating the ADA and possibly getting a charge or other types of claims that they failed to accommodate what is otherwise a reasonable accommodation.
Jennings: Is this something where a company should have a game plan in place before they encounter this situation where an employee might need a leave but it isn’t covered by the FMLA, or there’s otherwise an exhaustion of that eligible leave? Is that something that should fall under the leave rubric or the disability/accommodation rubric of policies, or is it in between those?
Gruber: It’s a great point and you hit the nail on the head. It starts with the policy, whether it’s an employer’s attendance policy, whether it’s their disability/reasonable accommodation policy, however their policies are set up. But definitely under their attendance policy, there should be an allowance–and this is coming really from the EEOC–there should be an allowance that any requested leave would be considered as a potential leave of absence under the law if it can be reasonably accommodated. Some language along those lines needs to be placed in the policy. The days of no-fault attendance policies, those are gone. We simply can’t add up the points and then all of a sudden when it hits, without question, without looking at the circumstances, summarily terminate an employee. You’re running a great risk if you’re going to continue to proceed with your policy along those lines. So the game plan starts with the policy.
Gruber: You’ve put that concept into your attendance policy, you know that it’s going to be there and you charge everyone from your supervisory authority all the way up to your Human Resources managers to be aware that when something like this comes along, a simple question of why do you need this leave of absence can lead you down the path of making certain that there’s no reasonable accommodation or potential reasonable accommodation. I would say more likely than not, most of my clients who come to me with this problem, the individual who needs to leave of absence, it’s possible for the company to accommodate that leave because most of these leaves are really on the margin. They are just a matter of days, in which you can look at it and say, “we can survive these few days and then put the employee back to work.” Because I believe that at the end of the day, most companies, in fact, the overwhelming majority of companies, they want their employees to stay employed and to be good, productive people.
Gruber: It’s really hard to find good people these days. So why get rid of somebody simply because they need a day or two off when it really doesn’t impact the business? I’m not here to advocate that everybody needs to be given whatever time they need off for whatever circumstance. So it really is a unique set of circumstances. The employee needs to have an impairment that could be seen as a potential disability under the law, and it has to that employee himself or herself, because this reasonable accommodation concept that we just reviewed does not apply to an individual who may be associated with an individual with a disability. “My kid’s sick and I need to stay home because my child is ill”: although that employee’s child may qualify as disabled under the law, there’s no reasonable accommodation obligation for an “associated with disabled” circumstance. So lawyers don’t need to look at that circumstance and say, “do we have to go through an interactive process because the employee’s child is ill or the parent is ill.” Other situations that may create an FMLA circumstance do not create an ADA leave of absence/reasonable accommodation issue. So we’re just talking about significant impairment issues that would otherwise likely be disabling under the ADA, impacting the employee themselves. Like I said, you’re probably going to find that you could accommodate most of those, put the employee back to work, have somebody productive in place.
Jennings: This has been a really good overview of that intersection between FMLA and other types of leave and disability accommodation and how companies, and HR leaders, can stay on the right side of the law with that. Andy, if our listeners want to learn more about this topic, where can they go for that information?
Gruber: I would suggest through our website, you can reach any of our practitioners in the labor and employment area and we can be found at my firm, Bingham Greenebaum Doll. We have offices in Indianapolis, Louisville, Lexington, and Cincinnati, and we offer services throughout the Midwest on labor and employment and other matters and would be happy to help you out with whatever issues you may have.
Jennings: Great, and I’ll put a link to the website on the show notes. Andy Gruber, thank you for joining The HR Risk Podcast.
Gruber: Thank you, Andrew. I appreciate the time.