by Jackson Lewis

On March 1, the U.S. Equal Employment Opportunity Commission issued an "Enforcement Guidance" on reasonable accommodation and undue hardship under the Americans with Disabilities Act. The Guidance does not have the force and effect of law, but it does state the Commission's position on key issues for employers confronted with the everyday questions of leave entitlements and return to work obligations. Furthermore, many courts already have issued decisions in line with the EEOC's interpretation of reasonable accommodation and undue hardship under the ADA.

To help employers understand this important pronouncement, we asked Chris Bell, the managing partner of our Minneapolis, Minnesota office, and former EEOC ADA policy-maker, to explain its major points.

Q: Does the Guidance represent a significantly different interpretation of the ADA than we have seen so far ?
A: Yes. In the Guidance, the EEOC interprets the ADA as imposing extensive employee leave and reassignment obligations upon an employer before it may terminate a disabled employee for inability to perform essential job functions. The EEOC is making it increasingly difficult for employers to release employees who become medically unable to perform an assigned job even with accommodations.

Q: According to the EEOC, what obligation does an employer have to provide leave as a reasonable accommodation?
A: The EEOC is interpreting leave as an ADA reasonable accommodation mandate in addition to whatever leave entitlement an individual may have under the federal Family and Medical Leave Act. For example, if an employee has taken three months of FMLA leave and needs an additional five months for treatment of a disability, that time may qualify as an ADA reasonable accommodation. As with other forms of accommodation, the additional leave would be subject to the condition that it would not impose an undue hardship on the employer.

Q: Does the EEOC Guidance increase employer obligations for employees returning from ADA reasonable accommodation leave?
A: Yes. The EEOC is interpreting the ADA as requiring employers to restore an employee to his or her original position, not merely an equivalent position as the FMLA requires. If it would create an undue hardship to hold an employee's position open for this additional period of time, then the employer is obligated to look for a vacant position which it could hold open without undue hardship while the employee finishes the leave. At the end of the leave, the employee would return to the new position.

Q: Do you think the courts are likely to accept this interpretation of the ADA?
A: Already there is considerable judicial support for the concept that the ADA imposes a leave obligation over and above any available FMLA leave. For example, one appellate court has required more than 52 weeks of leave as an accommodation. On the other hand, at least one appellate court has rejected the idea that the ADA imposes a separate job restoration mandate. Because the ADA itself contains no such requirement, I rather doubt it will be imposed by the judiciary.

Q: What does the Guidance say regarding reassignment to a vacant position as a reasonable accommodation?
A: This is an area of great concern for employers. According to the Guidance, an employer has an affirmative duty to an employee who has become unable to perform his or her original job even with accommodation. That duty involves identifying vacant positions for which the employee is qualified, and the Guidance, as well as some court decisions, makes clear it is not sufficient just to send an employee to Human Resources to look for vacancies.

Although the Guidance instructs an employer first to look for an equivalent position in terms of pay, benefits, location, and status, an employer may have to search elsewhere if there is no vacant equivalent position for which the employee is qualified. Surprisingly, the search may have to extend to other departments, subsidiaries, and even across the country, unless an employer can demonstrate an undue hardship in doing so.

This imposes a tremendous burden on employers. If the Commission's view is followed by the courts, employers would have a continuing legal obligation to search for job vacancies for an individual on leave because his or her disability prevents performance of the original position. It will require larger employers to adopt a very proactive disability management policy that removes return to work decisions from the employee or his or her treating physician.

Q: Does the Guidance put disabled employees on par with other qualifed applicants for vacant positions?
A: This is perhaps the most startling aspect of the EEOC's Guidance regarding reassignment. The employer is expected to place the disabled employee in a vacant position even if the employee is only minimally-qualified for the position and there are other better qualified applicants waiting to accept the position. With this interpretation of the ADA, the EEOC essentially is throwing down the gauntlet and making the ADA the next affirmative action battleground. Should the courts follow the EEOC's interpretation, large employers which do not adopt proactive disability management procedures to identify vacant positions and make reassignments risk incurring claims from an entire class of disabled individuals with liability for class-wide damages and back pay awards.

Q: Are there other elements of the Guidance which may impact employers' ADA compliance efforts?
A: Yes. The EEOC is attempting to restrict an employer's access to medical information. In my view, it is adopting a "heads, the employee wins; tails the employer loses" approach to medical documentation. The EEOC's ADA Technical Assistance Manual clarifies that an employer is not permitted to defer to its physician in making employment decisions regarding placement, return to work, or reasonable accommodation. Rather, an employer must make its own decision and may not simply rubber-stamp its medical advisor's recommendation regarding management issues.

In this Guidance, the EEOC would require an employer to defer to the employee's treating physician's note with little ability to confirm the employee's disability status or the medical necessity of the requested accommodation. The EEOC agrees that an employer is entitled to "sufficient documentation" regarding an employee's impairment and functional limitations to determine whether an employee has an ADA-covered disability. Likewise, an employer is entitled to an explanation of why a requested accommodation is required by the functional limitations imposed by that disability. However, the EEOC makes clear that it expects an employer to accept at face value a statement by an employee's treating physician explaining why an employee is disabled under the ADA and why the accommodation being requested is medically necessary.

If an employee's medical documentation is insufficient in these areas, the employer is expected to inform the employee of these deficiencies and give the employee a chance to provide more adequate documentation. Only if the employee fails to do so may an employer require the employee to undergo a job-related medical examination. The Agency expressly advises against requiring a review of an employee's entire medical file because, in the Agency's view, this will divulge irrelevant medical information.

Q: What does the Guidance say about the impact of a collective bargaining agreement on the duty to provide an accommodation?
A: Unfortunately, the EEOC is continuing to maintain its position that an employer and a union must attempt to negotiate an exception to any collective bargaining provision which would bar provision of a necessary accommodation, such as a seniority requirement precluding reassignment of a more junior employee, unless such a provision would unduly burden other employees. This position is contrary to myriad appellate court rulings, but the EEOC only feels compelled to follow rulings by the U.S. Supreme Court.

Q: Does the Guidance take any position helpful to employers?
A: Yes. The Guidance reiterates that there is no obligation to respond to a non-disabled employee seeking accommodation to care for a disabled family member because only disabled applicants and employees are entitled to accommodation. The Guidance also reiterates the Agency's long-held position that an employer is not required to eliminate essential job functions nor to reduce quantity or quality of work standards. There also is no obligation, under the Guidance, to reassign an employee to a new supervisor as a form of accommodation although the Guidance does indicate that a supervisor may have to alter his or her method of supervision, such as by providing more detailed guidance or more frequent feedback.

Q: When does the Guidance take effect and does it have the affect of law?
A: The Guidance is effective on March 1, 1999, the date it was issued. It does not have the effect of law because it is not a regulation. However, it does instruct EEOC investigators about the Agency's positions on reasonable accommodation. Also, courts frequently defer to EEOC interpretations of the ADA. Employers can expect to see the Guidance relied upon by the EEOC and by plaintiffs in litigating ADA claims.

Editor's Note: The EEOC's new guidance on reasonable accommodation is available online at http://www.eeoc.gov.