It's Halloween! Are You Scared Yet? You Should Be As ADA Class Action Lawsuits Are on the Rise

Volume 10, Issue 14
October 31, 2011

When the Americans with Disabilities Act Amendments Act (ADAAA) became effective in January 2009, it was quickly believed that claims of alleged disability discrimination would increase. This prediction was largely based on the ADAAA's relaxation of the standard by which an individual would be deemed disabled. It is also no secret that the U.S. Equal Employment Opportunity Commission (EEOC) actively mines for potential class action cases against employers.

Traditionally, however, class actions initiated by the EEOC against employers usually allege claims applicable to multiple employees (i.e., sexual or racial harassment, etc.). ADA claims, by their nature, are more individualized, focusing on a particular employee's job, work limitations and reasonable accommodations sought. Recently, however, the EEOC has signaled its increased focus on ADA claims as potential fertile ground for class action lawsuits.

How could this be, you say? Aren't ADA claims uniquely tailored to the specific circumstances of an individual employee? After all, what your company does in terms of making a reasonable accommodation for one employee is not necessarily the same thing you would do for another. Consider for a moment the following scenario:

Your employee "Joe" tells you that he has a chronic back condition and needs surgery. Wisely, you inform Joe of his leave rights under the Family Medical Leave Act (FMLA) and give him the necessary medical certification paperwork. Joe's completed medical certification states he will need to be off work for 12 weeks for the surgery and subsequent recovery period. You approve Joe's FMLA leave and he takes his 12 weeks off. Toward the conclusion of the 12 weeks, Joe tells you he is still in great pain, and is not yet able to return to work. He asks whether any other leave time is available to him. Your company has a 30-day personal leave policy, and you make that time available to him. Beyond that, however, you tell Joe that the company has no other authorized leave time for him. Joe is approved for personal leave, but still cannot return to work once the 30 additional days have passed. Since Joe has exceeded all of his available leave time, you tell him that he will be terminated.

Under the foregoing scenario, terminating Joe's employment is a very risky proposition. Even though all of your company's sanctioned leave time has been provided to him, Joe is likely disabled under the ADAAA, thus triggering your duty to reasonably accommodate him. But he did not ask for an accommodation, right? Wrong. His mere statement that he cannot return to work due to his back condition, coupled with your knowledge of it, obligates you to engage in the interactive process with him.

The ADA provides that one form of reasonable accommodation may be the provision of unpaid leave. This leave would be in addition to any other "official" leave policy maintained by an employer. Employers with inflexible leave policies, who fail to make individualized assessments as to whether more leave time is reasonable in a particular situation, will likely become targets of increased ADA enforcement by the EEOC. The EEOC has already laid down the gauntlet for these types of leave of absence lawsuits in massive settlements with such employers as Sears, Roebuck & Co. ($6.2 million) and Supervalu, Inc. ($3.2 million). These lawsuits charged that employees were being terminated when they could not return from the leave time provided under the employer's policy, without any consideration given to whether additional leave time would be needed under the ADA.

So what should your company do to prevent this same type of problem? Here are some recommendations:

1. Do not use an "automatic" termination rule for exhausting leave time.

Establishing a rule whereby termination will result if an employee exhausts a designated period of leave is almost certain to invite EEOC challenges.

2. Consider tailoring or eliminating your supplemental leave policies.

Many employers, in addition to having an FMLA policy, offer other more generic forms of leave, such as medical or personal. By having such other leaves "on the books," an employer signals that there are additional leave entitlements beyond the FMLA. These "tack on" leaves, while often generous, will not remove an employer's obligation to determine whether additional leave time may be necessary in a given situation. In lieu of eliminating these other forms of leave, you should revise them to state how they apply or what conditions must be satisfied to use them (i.e., medical leave policy for those not otherwise eligible for FMLA leave).

3. Don't fall into the "you must be all better now" trap.

Many employers believe that once leave has been provided and exhausted, the employee's underlying condition/impairment must have improved to the point where the employee can return to work at "full duty." Requiring a full-duty work release before restoring an employee to his/her job is a recipe for disaster. If an employee returning from leave can work - with certain restrictions - it is the employer's duty to see if those restrictions can be reasonably accommodated.

4. Talk to your employee.

The ADA's interactive process imposes the obligation of good faith discussions to determine what reasonable accommodations may be needed to assist an employee. Employees are not required to use any special words or phrases to request an accommodation, and it often falls upon the employer to assess whether an employee has made such a request. For example, an employee's mere statement that he/she cannot return from leave due to a medical condition may be sufficient to trigger the interactive process under the ADA to consider whether additional unpaid leave time is reasonable.

The above issues are often complicated and filled with traps for even the most prudent employers. We at KZA stand ready to assist you in preventing this increasing trend from adversely affecting your company.

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.