JACQUELINE A. BERRIEN, Chair
STUART J. ISHIMARU, Commissioner
CONSTANCE S. BARKER, Commissioner
CHAI R. FELDBLUM, Commissioner
VICTORIA A. LIPNIC, Commissioner
P. DAVID LOPEZ, General Counsel
PEGGY R. MASTROIANNI, Legal Counsel
BERNADETTE B. WILSON, Program Analyst
This transcript was produced from a DVD provided by the Equal Employment Opportunity Commission.
TABLE OF CONTENTS
1. Announcement of Notation Votes, and
2. EEOC to Examine Use of Leave As Reasonable Accommodation -
Panel 1: EEOC's Current Position and Policy Statements
Panel 2: How to Comply with the Law and Appropriately Permit Leave to Employees
CHAIR BERRIEN: Good morning everyone. The meeting of the Equal Employment Opportunity Commission will now come to order. Iíd like to thank everyone for being here this morning. In accordance with the Sunshine Act, today's meeting is open to public observation of deliberations and voting of the Commission.
And at this time, Iím going to ask Bernadette Wilson from the Office of the Executive Secretariat to announce any notation votes that have been taken since the last Commission meeting.
MS. WILSON: Good morning. Before we begin, is there anyone in need of interpreter service?
Good morning, Madam Chair, Commissioners, Iím Bernadette Wilson from the Executive Secretariat.
Weíd like to remind our audience that questions and comments from the audience are not permitted during the meeting. And we ask that you carry on any conversations outside the meeting room, departing and reentering as quietly as possible.
Also, please take this opportunity to turn your cell phones off or to vibrate mode.
I would also like to remind the audience that in case of emergency, there are exit doors to the right and left as you exit this room. Additionally, the restrooms are down the hall to the right and left of the elevators.
During the period March 12, 2011 through June 6, 2011, the Commission acted on 18 items by notation vote:
Approved five (5) subpoena determinations;
Approved a contract for a full?service facility to host the FY 2011 EXCEL Conference;
Approved FY 2011 budget allocations for state and local programs;
Approved a Notice of Proposed Rulemaking amending recordkeeping requirements under Title VII and the ADA, to include GINA;
Approved the revised Spring 2011 regulatory agenda;
Approved a preliminary plan and a revised preliminary plan for retrospective analysis of existing rules pursuant to Executive Order 13563;
Approved a competitive task order for processing the 2011 EEO-4 survey; and,
Approved a resolution honoring Lisa Guilmette on her retirement.
CHAIR BERRIEN: Thank you Ms. Wilson.
We're here today to discuss the use of leave as a reasonable accommodation under the Americans With Disabilities Act. This is a complex area because of the interplay between the Americans With Disabilities Act, the Family and Medical Leave Act, and overlapping state laws and regulations that govern workers compensation.
The Commission appreciates the complexity of these issues for the regulated community and for workers. And we are interested in clarifying and facilitating compliance with the law to the greatest extent possible. The input we will receive from panelists today, who include representatives of the business community and disability rights advocates, as well as experts from the EEOC staff; will greatly assist the Commission in its consideration of ways to simplify and clarify its guidance concerning compliance with the ADA, FMLA, and related laws governing leave as an accommodation for workers with disabilities.
I would like to thank Commissioner Vicki Lipnic and her staff, particularly Paul Kehoe, for their work coordinating this meeting. Theyíve assembled a distinguished group of experts from across the country to provide testimony for the meeting.
And I would like to extend a special welcome or welcome back, I should say, to our Regional Attorney, John Hendrickson, who is here from Chicago, and Assistant Legal Counsel, Chris Kuczynski, from the Office of Legal Counsel, who will be presenting testimony on our first panel this morning. John and Chris have contributed greatly to the development of ADA litigation and policy guidance, respectively, and their expertise is widely recognized within and outside the EEOC. I'm confident that the Commission will benefit greatly from their participation in today's meeting, and thank you both for being here. We will hear from four outside experts on today's second panel presenting perspectives of the plaintiff and defense bars. And they will also lend their expertise to our consideration and discussion today. We appreciate the time that every one of our witnesses has committed to participate in today's meeting, including travel to the Headquarters to testify today. I thank you all in advance for the insights that youíre sharing with us today based upon your work. And I say on behalf of the Commission that we appreciate your participation in this meeting and look forward to hearing your testimony.
Finally, I would like to announce that in consultation with members of the Commission, Legal Counsel Peggy Mastroianni, and Executive Officer Stephen Llewellyn; we have developed guidelines to facilitate the submission of information related to Commission meeting topics by interested members of the public.
Effective immediately, audience members at Commission meetings, as well as other members of the public, may submit written comments on any issue or matter discussed during the Commission's public meetings. We will hold the meeting record open for receipt of public comments for 15 days from the meeting date. Comments may be sent by e?mail or regular mail, directed to: firstname.lastname@example.org or by regular mail to Commission Meeting Comments, EEOC Executive Officer, 131 M Street, Northeast, Washington, D.C. 20507. All comments received will be made available to members of the Commission and to Commission staff working on the matters discussed at the meetings. Comments will also be placed in the EEOC library and available for public review.
I will now invite my fellow Commissioners to make brief opening statements, beginning with Commissioner Ishimaru.
COMMISSIONER ISHIMARU: Madam Chair, thank you.
The passage of the ADA Amendments Act and our new regulations are an attempt yet again to make clear that the question in providing protections for people with disabilities under the law should not stop with the question of whoís covered by the Act, but really; rather go to the question, has there been discrimination and whether a reasonable accommodation is required to provide that person with the ability and the opportunity to have an employment opportunity.
Within the context of the possible accommodations that are available to an employee, Iíve been told that employers have long had difficulty figuring out how to deal with leave as a reasonable accommodation. The EEOC has offered no shortage of guidance and technical assistance to employees and employers on interpreting the reasonable accommodation obligation. Despite the many documents that EEOC has issued on this subject, people are still getting it wrong. And perhaps thatís part of the problem; that there are too many pieces, too much of a hodgepodge. And maybe there are times when our guidance could have been clearer. In any case, it's imperative that we now and with urgency do all we can to ensure that employees and employers know what they need to do to get it right and to ensure that the accommodation process works and works well.
Employers often tell me when I meet with them that they're always looking to find and to keep good employees. And I understand that, itís an expensive process. You want to find people and get people to stay with you for as long as possible. And with that in mind, leave is a crucial accommodation for people with disabilities. In the real world, accommodations matter. Whether youíre a dock worker who needs three months of leave for a back surgery, and recovery; a teacher with multiple sclerosis, who has a flare-up and requires her to take intermittent short?term periods of leave; or a human resources director who needs time off for dialysis and then extended leave for a kidney transplant. The ability to take leave and then to know you have a job to return to is at the heart of the ADA.
I think the confusion that I hear from employees and employers comes frequently from trying to make sense of the case law thatís out there, but the disparate case results are to be expected to some extent in this area because each reasonable accommodation case under the ADA is so fact?driven and so dependent on a mix of factors.
As the Agency charged with the responsibility to interpret the ADA, our role at the EEOC is not to respond and react to each disparate lower court decision thatís issued, but rather, to issue clear and comprehensive guidance that adheres to the Commission policy and carries out the intent of the ADA.
So Iím hopeful that this meeting will allow us to hear what problems employees and employers are facing in dealing with reasonable accommodation issues. I hope we hear about actual situations that people are up against, not a parade of horrible hypotheticals. The ADA has been around for a long time. And people know, in fact, what has happened. And it's more useful for me to hear about actual situations where there have been real difficulties than talking about things that might happen or could happen. After this period of time, we should know whatís been happening. And thatís most useful to me in trying to figure out how we should address this issue.
So I, too, Madam Chair, want to join you in thanking Commissioner Lipnic and her fine staff in organizing the hearing. I look forward to the testimony.
CHAIR BERRIEN: Thank you Commissioner Ishimaru.
COMMISSIONER BARKER: I want to first extend my congratulations to Peggy Mastroianni. Since our last meeting, she was appointed as Legal Counsel. And those of us whoíve worked with Peggy know that sheís an extremely intelligent and talented person who lends quite a bit to this agency. And itís a position that is certainly well?deserved, so my congratulations, Peggy.
COMMISSIONER BARKER: And I also want to extend my appreciation to Commissioner Lipnic and to her staff for the hard work that theyíve done preparing this topic and then doing all the work that goes with developing the issues that are going to be raised in the testimonies in carefully selecting the witnesses. This is a topic that is certainly well?selected. It is a topic that lawyers on both sides, practitioners on both sides, struggle with every day. I know in talking to Vicki about it, I told her that when I was a practitioner, this was probably the single most difficult question I had to ask for employers. You know, certainly there is a desire to provide accommodations to people who need accommodations. We are all in agreement on that. But the difficulty comes not with the big employer, Iím not concerned about the employer who has thousands of interchangeable employees; but with the employer of 15 or 20 who is trying to keep the doors open and has to make those very difficult judgment decisions. And I think the reason we're here today is because this is exactly what we're all struggling with. So I very much look forward to the testimony from all of you. And thank you for agreeing to appear today.
CHAIR BERRIEN: Thank you Commissioner.
COMMISSIONER FELDBLUM: Thank you. Madam Chair, Iíd like to submit my full opening statement for the record.
CHAIR BERRIEN: Certainly.
COMMISSIONER FELDBLUM: Nine weeks ago, someone I know received a diagnosis of aggressive breast cancer. Since that time, I have received essentially daily updates about this person's progress. In the first few weeks, her time away from work was intermittent: getting additional tests to see if her cancer had spread, meeting with doctors to discuss the treatment plan, and getting a device implanted for her chemotherapy. Sheís an academic, and she was able to teach almost all of her last 12 classes in the first three weeks following her diagnosis.
During the past six weeks, sheís been undergoing chemotherapy and radiation. Sheís beginning to experience the side effects, including fatigue and radiation burns. She describes herself as having an entirely new job: the job of being a cancer patient.
This person is not currently at risk of losing her job. She's a tenured academic, and her university has a good medical leave plan. But for thousands of other people across this country who have received similar cancer diagnoses or who have significant other medical problems; it is the Americans With Disabilities Act, the ADA, that will provide them with the essential safety net of job?protected leave, both intermittent and extended, for some period of time.
In particular, for the large segment of our workforce employed by enterprises that employ fewer than 50 employees but more than 14 employees; it is primarily the ADA that they will look to for some protection.
While the Family and Medical Leave Act, FMLA, provides 12 weeks of job?protected leave for certain employees who need time off to care for their own serious health condition; that law applies only to employers with 50 or more employees and only to employees who work full?time. And many, many people in our country work for smaller employers or work part?time for larger employers.
Now, unlike the FMLA, which provides a fixed amount of time with no undue hardship limitation; the ADA, in contrast, requires a fact?intensive analysis of the individual, the job, the company's needs to determine how much job?protected leave employers must provide as a reasonable accommodation. That is, if the time away from work, or if the schedule change requested by the employee will impose an undue hardship on the employer; the employer is not required to provide that reasonable accommodation under the ADA.
I know some of our witnesses will make clear this morning how a number of lower courts have issued confused opinions on the respective meanings of reasonable accommodation and undue hardship. And I look forward to having our Agency clarify the different requirements that attach to these different terms in the statute.
In the written comments that I have submitted for the record, I lay out the language that I expect our EEOC staff in the first panel and our public witnesses in the second panel to be addressing, the statutory and regulatory language.
Here I simply want to make an overall conceptual point and offer some thank yous. Conceptual point: As an enforcement Agency, we are obliged to give appropriate meaning to each of the statutory terms in the laws of the statutes we enforce. We do not make up the law. We enforce the law that Congress enacted and the President signed, that is our constitutional responsibility. And we have a responsibility to do that clearly and consistently through our regulations, our guidance, our fact sheet, and our litigation.
Finally, I want to thank Chair Berrien for having this meeting and for asking Commissioner Lipnic to conceptualize and coordinate this meeting.
Now I will say something I say almost every time I talk about the ADA regulations, but I think itís worth saying here for the record. As you all know, Commissioner Lipnic and I come from different political parties. We have different defaults on many issues. We are not always on the same side of a vote that you just heard some of the votes announced. But I believe we share a passion for the constitutional principle I noted above: our obligation as an agency to ascertain the goal of Congress as best we can and to carry out that goal consistently in our work. I am proud to be her colleague on this Commission. And I thank her and her staff, Paul Kehoe and Jim Paretti, for their hard work in pulling together this meeting.
CHAIR BERRIEN: Thank you Commissioner, Commissioner Lipnic?
COMMISSIONER LIPNIC: Thank you Madam Chair. Good morning everyone. A special welcome to all of our witnesses, those who came from near and far. I think probably Mr. Isler had the harder time coming from Tyson's Corner with our traffic ??
COMMISSIONER LIPNIC: ?? than those who came from Chicago, and Houston and California. I also, I hadn't kept a scorecard of how many votes that Commissioner Feldblum and I have been on opposite sides of, but I'm sure there have been a few of those.
Today we will hear the testimony on the critical issue of leave as a reasonable accommodation with a particular focus on leave policies which require an individual to return to work once leave has been exhausted.
I was delighted when I approached the Chair about putting this meeting together and about how receptive my colleagues were to engaging on this topic. The broad issue of the need for leave by individuals trying to manage a medical condition and hold a job at the same time, and, the need for employers to be able to manage their businesses and their workforce with some predictability in a hyper?competitive global economy; is one I have been interested in for many years and spent many years thinking about and working on as a policy matter. How employers are able to effectively run their businesses and manage these difficult situations for their employees is, I believe, as Commissioner Barker said, one of the most vexing issues for employers and employees. They are vexing precisely because of the tension between two concepts: Employers want predictability, and medical conditions by their very nature have no predictability. Despite this, the Americans With Disabilities Act requires an employer to not discriminate against a qualified individual on the basis of a disability unless the accommodation would pose an undue hardship. And a qualified individual is one who, with or without reasonable accommodation, can perform the essential functions of his or her job.
While the Commission has developed many guidances over the years on this particular topic, certainly one question that I have been getting repeatedly nearly everywhere I go, especially in light of the Commission's recent big cases on this issue; is how much leave or extended leave is enough. In all likelihood, there are no blanket answers to these questions. And, as Commissioner Ishimaru noted, these are highly, highly fact?specific situations.
Needless to say, this issue is in front of employers' minds, especially since the enactment of the Americans With Disabilities Amendments Act and its subsequent regulations, which will ensure that more individuals are covered under the ADA. Notably, the Commission has recently through its investigations and litigation, focused more on these types of policies, whether the policies include extended and generous leave periods of up to 52 weeks, or whether the employers maintain a no?fault attendance policy. The Commission has recently entered into multimillion?dollar consent decrees with Supervalu and Sears Roebuck, finding that the companies maintained inflexible medical leave policies and terminated employees after their leave was exhausted.
Many concepts intersect when analyzing how much leave is appropriate in certain circumstances. For instance, when is an accommodation reasonable; when are multiple requests for leave effectively a request for indefinite leave; is an individual with poor attendance qualified for the position; is attendance an essential function of the position; should a cost?benefit analysis be used to determine whether a requested accommodation is reasonable or presents an undue hardship; is maintaining a generous, though limited, leave policy a per se violation of the ADA; whose burden is it to restart the interactive process when an individual's leave is about to expire; must an employer keep the individual's position open, and if so, for how long? These issues, it is important to note, the EEOC has provided guidance on, as Commissioner Ishimaru explained, not always in agreement with court holdings. And, as we will hear in testimony today from many of our witnesses, who seem to have the view that sometimes some of our guidance is inconsistent, if not contradictory. At bottom, both employees and employers face multiple hurdles when an individual is out on a leave of absence. Employers must redistribute the absent employee's workload or hire and train another individual for the position because the work still needs to get done. Employers may simply prefer a full?time trained staff, rather than have a part?time or temporary staff. Employees, in particular, have other things that they need to worry about while they are on leave. As the testimony will bear out, it is also true that the longer the individual is out on leave, the less likely and more difficult it is that he or she will return to work for that employer. That is certainly a situation that we, I believe, hope the Americans With Disabilities Act, is one that should be rectified by the Act.
One facet of good government is informing the regulated community, both employers and employees, about their rights and obligations under the law. And while the ADA has been on the books for many years, my fear is that, and I think as we have seen by some of the recent litigation; many employers in terms of their leave policies, may still be getting it wrong. Itís our obligation as an Agency to tell them what they need to do to comply with the law and, in particular, to do everything we can to ensure that people who have disabilities are able to return to the workforce and be viable parts of our economy. Thank you Madam Chair.
CHAIR BERRIEN: Thank you Commissioner.
Iíll ask the members of our first panel, John Hendrickson and Christopher Kuczynski, to please come to the front table. As you approach, I will say to you and to our second panel as well that you will be limited to seven minutes to make opening statements to the Commission. But please recall that your entire written testimony will be included in the meeting record. So you don't need to race through it to try to complete it. We will have it all available. And I will say on behalf of our CART reporter, who does a tremendous job trying to keep up with it all; they will appreciate that as well.
The timing lights on the podium are here to assist all of us in maintaining the schedule for the meeting. The yellow light will appear when you have one minute remaining for your prepared statement. And the red light will appear when your allotted time expires. So thank you again for being here, and we look forward to your statements. We'll begin with Christopher Kuczynski.
MR. KUCZYNSKI: Good morning Madam Chair and Commissioners. Iím happy to testify this morning concerning an issue of great importance to many people with disabilities: Leave as a reasonable accommodation. And I can tell you that it is an issue on which, after speaking literally hundreds of times on reasonable accommodation since coming to the Commission; it continues to be an issue of concern and an issue to some extent of confusion for employers as well as for individuals with disabilities. So this is an important topic that weíre talking about this morning, obviously.
The Commission has said quite a bit on leave as a reasonable accommodation. I want to focus my remarks on what we have said in the interpretive guidance to the regulations issued in 1991 to implement Title I of the ADA and our guidance on reasonable accommodation issued in 1999, revised in 2002, and to the extent they're relevant on some technical assistance documents and some letters authored by the Office of Legal Counsel on this subject.
EEOC first recognized leave as a form of reasonable accommodation in its interpretive guidance to the regulations implementing Title I of the ADA. And there the Commission said that leave could be granted for treatment related to a disability.
Shortly after that in the Technical Assistance Manual that the Commission published in 1992 and in the reasonable accommodation guidance; the Commission enumerated other reasons leave might be granted: to recover from illness or an episodic manifestation of a disability; to receive disability?related training, for example, on the use of a service animal; to make repairs to equipment or devices that are used for a disability; or to avoid temporary adverse conditions in the workplace.
I want to address up front an issue that I know there have been questions on and some confusion about. And that is the question of whether employers can have uniformly applied leave policies and whether such policies on their face violate the ADA.
The Commission has never taken such a position. In fact, in the interpretive guidance to the Title I regulations, the Commission said that certain policies, like no?fault leave policies, under which an employee was automatically terminated after exceeding a certain amount of leave; "are not subject to challenge under the adverse impact theory. However, the quote goes on to say, "an employer may, in appropriate circumstances have to consider the provision of leave to an employee with a disability as a reasonable accommodation unless the provision of leave would impose an undue hardship." And the Commission says very much the same thing with respect to no?fault leave policies in the revised 2002 guidance on reasonable accommodation and undue hardship.
Now what are the rights of employees and employers during the period of leave and after the leave has ended? Employees are only entitled to be paid while on leave to the extent that they have accrued paid leave, and any additional leave is unpaid leave. Employers are only required to continue the health insurance of individuals on leave as a reasonable accommodation if it would continue the health insurance of employees who are on leave for other reasons. An employer, however, may not penalize an employee who has taken leave as a reasonable accommodation. For example, in the reasonable accommodation guidance, we talk about the fact that an employer may not terminate an employee who failed to meet an annual sales quota because she took five months of leave as a reasonable accommodation, without taking into account the employee's production during the time she did work. That may constitute retaliation for the use of the reasonable accommodation, and it will render the accommodation ineffective. Absent undue hardship, an employee must be returned to his or her original position after the period of leave has ended unless returning the employee to the original position would be an undue hardship. In that case, the employer must consider whether the individual can be reassigned to a position. And in that case, the principles of reassignment that the Commission has spoken extensively on, would apply in those situations. The position has to be vacant. It must be an equivalent position but need not be a promotion or better position, or the position can be a lower?level position if no equivalent position exists as close as possible to the original position. The individual with the disability must be qualified for the new position.
An employer may choose between accommodations, sometimes choosing an accommodation that will enable the person to continue working, as opposed to taking leave, as long as the accommodation provided would enable the employee to meet his or her disability?related needs. Therefore, an employer could not, for example, offer to provide certain equipment to an individual who needs surgery for a disability that has worsened in order to allow the person to continue working, because that would not enable the employee to meet disability?related needs for the surgery; nor may an employer require an individual, who is entitled to leave under the FMLA, to accept an accommodation in lieu of leave.
What about situations in which an employer wants to place a person on leave, instead of providing an accommodation that would enable the person to continue working? In a letter authored by the Office of Legal Counsel; a letter authored by the Office of Legal Counsel states that such an accommodation of placing a person on leave, rather than providing an accommodation that would enable the person to continue to work; would not be an effective accommodation. Ultimately the accommodation the employer provides must, like any other accommodation, be effective.
The Commission has said quite a bit on the relationship between the ADA and the Family and Medical Leave Act. I want to highlight just two points in this regard and move on to a discussion of some undue hardship issues which I know are critical issues.
First, an employer may need to provide leave in excess of what is provided for under the Family and Medical Leave Act. Second, as was made clear in a fact sheet that explores the relationship of the ADA, the FMLA, and Title VII of the Civil Rights Act of 1964; it was explained that where someone is entitled to leave under both statutes or has rights under both statutes to leave under the FMLA, to leave as a reasonable accommodation; the employee is entitled to whichever ?? the statute that applies is the one that grants the employee the greatest rights. And we again made this clear in the fact sheet exploring the relationship of FMLA, ADA, and Title VII.
Now, like any other reasonable accommodation, leave does not have to be provided if it would result in an undue hardship.
CHAIR BERRIEN: Excuse me. The red light is on. If you can sum up or begin to wrap up, please?
MR. KUCZYNSKI: I'm sorry?
CHAIR BERRIEN: If you could begin to wrap up, please?
MR. KUCZYNSKI: Sure.
CHAIR BERRIEN: Thank you.
MR. KUCZYNSKI: I set out the standards for undue hardship in my written testimony. Rarely is cost asserted as a form of undue hardship. It's usually difficult when it comes to leave as a reasonable accommodation.
We recognize, the Commission has recognized, that itís not always possible to give an exact date of return. And so in the reasonable accommodation guidance, the Commission said that leave for a ?? without a fixed date of return, can be a form of reasonable accommodation.
There has been some concern that something that was said in a technical assistance document on applying performance and conduct standards to individuals with disabilities is inconsistent with that position taken in the reasonable accommodation guidance. In that technical assistance guidance, that document, that technical assistance document, notes that indefinite leave is not required. But I think both documents can be harmonized. Both documents recognize that leave may have to be provided even if there is no fixed date of return, even if the employee can provide only an estimated return date or has to revise the return date. And neither document requires that an employer provide leave where there is no possibility that the employee will be able to return to work.
CHAIR BERRIEN: Thank you.
MR. KUCZYNSKI: Madam Chair, members of the Commission, I look forward to exploring these issues in the question and answer session. Thank you so much.
CHAIR BERRIEN: Thank you.
And we'll turn to John Hendrickson.
MR. HENDRICKSON: Madam Chair, Commissioner Ishimaru, Commissioner Barker, Commissioner Lipnic, Commissioner Feldblum, General Counsel, and it's a real privilege, Peggy, to say Legal Counsel. It's wonderful to see you in that seat.
Commissioner Ishimaru noted that all matters ADA are intensely fact?driven, that the facts really matter. I thought that itís appropriate for me to begin by giving you a factual scenario for your consideration.
The service technician works for many years at a giant retailer with a maximum one?year leave policy. If youíre on leave for more than a year, youíre out. The service tech's job is repairing appliances like refrigerators and washing machines in customers' homes. Itís physically demanding work. The service tech is injured when he falls downstairs at the customer's home. He has knee, back, and ankle injuries. He can't get down on the floor and work on the innards of major appliances. He takes Worker's Comp leave. He asks to return to work in a job that is less physically demanding, physically strenuous. He applies to become both a service manager and dispatcher, positions for which he is eminently qualified because of his prior experience. The company refuses. His year runs out. By the way, the company had those positions open and available. His year runs out. Because of his disability, he can't return to his prior position, he's terminated. Has the employer satisfied its responsibility with regard to this employee under the ADA by merely providing him with one year of leave? After all, a year of leave doesnít sound ungenerous. And as the courts have said, never having to come to work is not a reasonable accommodation.
To you, as Commissioners, the answer is likely readily apparent. The employer did not satisfy the ADA obligations merely by placing the service tech on leave and failing to seriously consider him for a return as a reasonable accommodation or consider a reasonable accommodation, which brought him back.
It was not, however, readily apparent to the Sears Roebuck. The fact scenario I have given you is a real life story of John Bava, the charging party in Sears' systemic ADA case against Sears. In the course of investigating the charge, we uncovered a whole class of employees who had been placed on leave, had never been seriously considered for a reasonable accommodation, and after a year were put on the street.
The Sears case and the case against Supervalu, the parent company of Jewel?Osco, are two of the major cases weíve addressed leave issues with in Chicago in the past few years. In both cases the employer maintained leave policies that provided one year and you're gone. The Sears case was filed in 2004 and concluded in 2009. The experience of the service technician was reflective of the experiences of a class of employees who were injured on the job, placed on leave, and were not considered for or denied a return to work.
The case was resolved by a $6.3 million consent decree. That money was distributed among 253 class members with an average distribution of $26,300. We believe thatís the single largest stand?alone Americans with Disabilities Act case in EEOC history.
The Supervalu case was filed in 2009 and concluded in 2010, breakneck speed as these things go. Like Sears, Supervalu has maintained a one?year policy. EEOC alleged Supervalu terminated employees at the end of the year, rather than returning them to work with a reasonable accommodation or considering whether there was a reasonable accommodation that could allow them to return to work. The case was resolved by a $3.2 million consent decree, with the monetary relief being divided among 111 class members. So that the average award per claimant was $28,800, a slight increase over Sears.
In Supervalu, we meant to address this kind of problem. You asked for specifics, Commissioner Ishimaru. Updating their job descriptions, the old job descriptions included lifting requirements like 80 pounds for the checkout line cashier positions. The testimony in the case as well as the observations of any of us who go through a grocery store line, indicated that no employee ever did such lifting. Instead, cashiers, as we all know, used wands on heavy products. Those were the kinds of nonmonetary relief that we thought were important in these cases.
So what did we learn from these cases? I picked out five lessons. Commissioner Lipnic, I think we discussed some of these with you. Number one, an inflexible period of disability leave, even if substantial, is not sufficient to satisfy an employer's duty of reasonable accommodation. Employers who offer disability leave tend to see the period of that leave as all thatís necessary for ADA compliance. But reasonable accommodation requires more than merely putting an employee on leave and waiting to see if the employee heals 100 percent and can return to the same job. Leave may be the appropriate accommodation in some cases, but in other cases, other accommodations must be considered.
Number two, the appropriate leave under the ADA requires an individualized analysis, even when the employer has a generous leave policy. Employers that offer a generous period of fixed leave may fail to engage in an individualized analysis to determine whether additional leave might be appropriate and fail to understand that leave that can never ever be extended; is not consistent with the ADA.
Number three, separating leave administration like the administration of Workman's Compensation benefits or disability benefits from ADA administration, leave administration, is very risky for employers because the left hand is doing its leave in one way, the right hand another way, and they never know what each other is doing.
Number four, clear lines of communication regarding reasonable accommodation are critical, not only with employees on leave but also with their health care providers, their supervisors, and their managers. So the accommodations can be structured, and when the employee is brought back to work; the accommodations can be implied on the line and make a difference.
Finally, I think one thing we learned is that the Commission occupies a major role in litigating these cases. Proving a violation of the ADA on a large scale requires a significant investment of resources. The Sears and Supervalu cases both required taking over 100 depositions. In Supervalu, given the tight discovery schedule we were under; we utilized the national law firm model to pull in lawyers from other offices. The reality is that very few private counsel have either the means or the ability or the size to litigate these kinds of cases, which are so important in making the Commission's position on the ADA a reality in the workplace. So our litigation in these issues is, in my view at least, extremely important.
Thank you for your attention. Itís been a pleasure to be here, and I appreciate the opportunity.
CHAIR BERRIEN: Thank you both for your statements, and thank you both for your service to the EEOC throughout the years.
And we'll start our questions with Commissioner Ishimaru and each of our Commissioners will have also observed the time limits. The red light will come on in five ?? I'm sorry. The yellow light will come on at five minutes. And please wrap up at that point.
COMMISSIONER ISHIMARU: Madam Chair, thank you. I want to thank the panelists for their testimony, very helpful. Mr. Hendrickson, welcome to town. Itís always good to see you.
MR. HENDRICKSON: Always good to be here.
COMMISSIONER ISHIMARU: You know,...
MR. HENDRICKSON: ...I prefer cooler weather.
COMMISSIONER ISHIMARU: One of the ongoing fact patterns that I hear from employers is that, "Look, we have a generous leave policy. A person comes in, they ask for leave, they request an extension of that leave, and they request an extension again for a variety of reasons." And, you know, after the first couple of times, what sort of framework do you put it in? How do you analyze extensions of leave past a certain point? And, to try to get a feel for this, you know, can a fixed template work? Can a fixed template where you say, "X" amount of leave is enough? And obviously in your cases, Mr. Hendrickson, you know, the fixed leave was problematic. But Iím interested in how we should be thinking about this.
MR. HENDRICKSON: Well, I'm not a policy?maker. All I can tell you what we see in experience in Sears, for example, and in Supervalu, the fact of the matter is; they put people on leave, and that was the end of it, no alternatives, reasonable accommodations, unreasonable accommodations, expiration of any time limit, nothing. The leave ran out, they were gone, that was it. The problem is, I don't think, is whether employers have a generous leave or ungenerous leave; but the concept of an interactive process in this area seems to have gone out the window for many. No offense to my esteemed colleague, Ms. McLaughlin, but I read her testimony on the plane coming out, and I have to say I didn't find ?? and I may be wrong, Ellen, you can correct me; but I didn't see the words "interactive process," at least in the parts of the testimony I read. And I think that was the problem in both Sears and Supervalu that nobody ever thought it was important to call the employee up on the phone, to sit down with the employee, to respond in any meaningful, substantive way, "How are we going to deal with this leave problem?" And, believe me, I understand itís a problem. You know, Iím a manager in a small office in Chicago. I know how it hurts to have people out. I know how hard it is to find good employees and how once you've got them, God, you don't want to lose them. So it's a mystery to me why employers, so many employers, don't seem to get it. There's no magic here. It's what the ADA has said from year one. What we did in training in Dallas?Fort Worth Airport in 1991, reasonable accommodation; you've got to have it. And if you're going to have reasonable accommodation, you've got to have an interactive process. So formulas, you know, I've gotten ?? if employers think they've got a formula, more power to them, but Iím not a big believer in formulas.
COMMISSIONER ISHIMARU: Chris, could you talk about the interactive process some more? As John pointed out, it's been there from day one in our training. Whatís been your experience in trying to get out the notion that there needs to be an interactive process?
MR. KUCZYNSKI: Well I think, I have emphasized repeatedly that when it comes to the type of leave situation that youíre talking about, Commissioner Ishimaru, or any type of leave that is not granted for a fixed period of time; that is, the person can provide either a range of return dates or may need to modify an original projected return date. Iíve always said that communication by the employer and by the employee is paramount in those situations. What is important is what the parties are communicating. Sometimes employees are taken by surprise because the period of leave that they're able to have under the employer's policy ends, and theyíve never been -- perhaps not aware of the fact that the leave was ending until they received a letter saying that they were terminated.
On the other hand, employers certainly have a right to get information when someone is asking for an extension of originally requested leave to information to substantiate that request for extended leave that makes it clear to the employer why the additional leave is needed, what has changed that necessitates the additional leave, and that evidences some ability on the individual's part to come back to work. Otherwise the employer is in an undue hardship position of being unable to plan for the person's eventual return or get the work done in the meantime.
So it is very, very important on both parts, the employerís and the employeeís, to engage in this interactive process, particularly in periods of extended leave where there are revisions to the projected leave date. And I continually emphasize that.
COMMISSIONER ISHIMARU: Great. Thank you.
Madam Chair, could I make one final point? I know my time is running out. Mr. Hendrickson talked about multimillion?dollar settlements in a number of these cases. And while that sounds big on one level and obviously it is; the recovery per claimant was relatively modest, $25,000 or so.
And I think one of my frustrations with how do we best enforce the ADA is, are there situations when you can deal with this on a class?wide basis? And quite often you can't. And I think that itís an illustration here of when it affects hundreds of people, the liability will be greater. But no oneís getting rich off this, thatís my point. That's $25,000 recovery per claimant, so I just wanted to throw that out there when people throw around the multimillion?dollar settlements.
Again, my thanks to the panel.
CHAIR BERRIEN: Thank you Commissioner.
COMMISSIONER BARKER: John, I have a question. I know with Sears, weíre talking about a big employer. Do you recall about how many employees they had that were under the leave policy?
MR. HENDRICKSON: I'm sorry. I guess I missed the first. How many employees Sears and Supervalu have?
COMMISSIONER BARKER: Right, yes. How many are we talking about here? I mean, I know we're talking about 1,000. Are we talking about tens of thousands or ??
MR. HENDRICKSON: With Sears, I guess we're talking about tens of thousands in both because Supervalu not only owns Jewel?Osco, which is a Chicago?area chain. It owns chains all over the, grocery store chains all over the country. I don't know whether they are bigger than the Kroger Company, but theyíre right up there.
COMMISSIONER BARKER: Yes. Well, I guess a question I have ?? and I don't know the answer to this ?? is whether this is something that tends to happen more with the very large corporations, like both of these companies that you dealt with, because I know you made the observation and recommendation that companies not separate out their administration of ADA leave and any other kind of leave. And I assume that this is a trap that both of these companies fell into. But yes, I guess coming from someone who represented small employers, I never dealt with a situation where they put somebody on leave and forgot them because they were so very aware of that person being absent and they didn't have the luxury of having two departments to administer leave. They had one person sitting in an office who had to deal with FMLA leave, ADA leave, payroll, you know, personnel problems between employees. Everything was like, one person. And so, that person knew very well who was on leave and would have conversations with the person before they left and be on the phone with them and all that kind of stuff. So I'm wondering if this is something that is more a problem with the very large corporations that just, like you said, the left hand doesn't know what the right handís doing.
MR. HENDRICKSON: I think that's an excellent question. And I'll be honest with you. I have no idea. I don't know, and I don't know, for example, whether that issue is fundamentally a function of the size of the corporation or developments in the way all businesses conduct business. And there's nobody in this room that doesn't know that outsourcing is a big deal among companies, large and small, with respect to personnel functions. And all kinds ?? you know, I make airline reservations. And I'm talking to an agent in a foreign country. I was in vacation in Florida and had to deal with oxygen issues. And I tried calling up my vendor, but I was talking to somebody in New Delhi who just had no conceptual understanding that I was in that place for a limited period of time on vacation and I needed something to happen now. And I wasn't like, I couldn't say, "How many months have you been a customer?" you know, none of that stuff. So, as we separate employer functions from the employer, I think that the risk of these kinds of failure to have cross?fertilization within the different functions of the company increases, but I'm not sure that thatís a function of size. Certainly I think people advertise that they are a good outsource for function. They're marketing to all sizes of employers. But this is all sheer speculation I have to say. I don't know the answer to your question.
COMMISSIONER BARKER: And there again, you know, when youíre talking numbers, the very small employer can't afford to outsource because, you know, it may be the guy who owns the company or his wife who is doing this. You know, they can't afford that extra cost.
Chris, I had one question for you, and that is, on the leave policies ?? and I understand, and I totally agree that if you do not involve, the company does not make an individualized assessment but has a blanket policy that they rigidly enforce, no questions asked; that it is a per se violation of ADA. But let me ask you this. Some companies are not great about having the most perfect written policies. And if a company has a policy that says, like a no?fault policy up to X number of days and then somewhere else in their handbook they've got an ADA policy that recognizes their obligation to provide reasonable accommodations. While it's not best practice to not incorporate reference to the ADA reasonable accommodation into the no?fault leave policy; is it my understanding from your testimony that youíre saying that's not a per se violation?
MR. KUCZYNSKI: That's correct, that not having something in the no?fault leave policy that says, "But we'll extend the policy and make reasonable accommodations," that's not in and of itself a violation. The violation is the failure to extend that period of leave for someone with a disability who needs additional leave.
COMMISSIONER BARKER: Thank you.
CHAIR BERRIEN: Thank you.
COMMISSIONER FELDBLUM: Thank you.
To underscore what Commissioner Lipnic said, that part of our obligation in holding hearings is to educate the regulated community; and I think itíll be clear to the regulated community now that you don't have no?fault one year and you're out. And probably, we'll have a better sense of the best practice of, if you say, you have three times and you're out in terms of an attendance policy; it's actually much better to say right there, but obviously if you need a reasonable accommodation because of a disability, thatís our obligation. So I have the same question to both of you. Let's now assume that employers get that. And so now what they're trying to figure out with any particular person, any particular situation; whether they have an obligation under the law to extend the leave or to give an exception from an attendance policy.
As Ms. McLaughlin noted in her testimony, the hardships for employers in providing leave are more than just financial hardships; but also include the effect that a leave of absence has on their business, such as potentially lower quality of work, lower productivity, lower customer service, lost sales, and increased burden on coworkers. That's taken from Ms. McLaughlin's testimony. To my mind, these factors seem to be exactly the type that we contemplate in our regulation, under our factor number five of what's an undue hardship, "the impact of the accommodation upon the operation of the facility, including the impact on the ability of other employees to perform their duties and the impact on the facility's ability to conduct business." And that factor five derives from the statutory provision that says, "Congress directed us that in undue hardship, we are to look at also 'the impact otherwise of such accommodation upon the operation of the facility after financial costs.'"
So my question is two?part. First, do you agree that these factors raised by Ms. McLaughlin in her testimony fit into this category of other impact on the employer? And if so, what kinds of evidence do you think employers would need to produce to establish undue hardship based on factors of this kind? Mr. Kuczynski first and then Mr. Hendrickson.
MR. KUCZYNSKI: I do think that these kinds of factors go to the issue of the impact on the employer's business. I think in terms of the kinds of evidence ?? and, again, undue hardship is going to be like virtually everything under the ADA and individualized case?by?case determination; but what are some of the pieces of evidence that you would look at to determine whether leave in a particular situation is a reasonable accommodation? I think youíd want to look at the nature of the job. For example, if this is a highly specialized kind of position, there aren't other people in the employer's workforce who are able to get that job done in the absence of the employee, and there isn't really a way to fill that position on a temporary basis. That may be a form of undue hardship for even a shorter period of leave. And we give an example, the Commission gives an example in the question 44 of the reasonable accommodation guidance about just such a situation. I think another piece of evidence goes to the nature of the workplace. Why isn't that the same as the job? Well, because the workplace may be a small employer. It may be a large employer. There may be one person in the employer's workforce whoís able to do a particular job, whether it's a highly skilled position or not. There may be a number of people among whom that function can be allocated in the absence of that employee on leave.
COMMISSIONER FELDBLUM: Okay, I'm going to just stop there so I get a chance for Mr. Hendrickson, just as a litigator, what type of thing would you be looking at and saying, "Oh, yeah, you know, thatís the type of evidence Iíd be looking for."
MR. HENDRICKSON: Well, having heard Ellen's testimony earlier, I should also say on the up side, I thought her discussion of what constitutes an undue hardship was terrific. I thought about clipping it out and circulating it to all my trial attorneys, saying, "This is what youíre going to be looking for." So it was okay, Iíve got no problems with it. Let me just give you a short example, if I may, about, you know, why I think these things ?? what kind of ?? I won't even venture to say what kind of evidence that one should look for except whatever the ?? it's the employer's burden to produce that evidence. And they don't need my advice on how to do that. But my best friend, you know, being from Chicago, you know all the things that go on there ??
MR. HENDRICKSON: One of the things that went on for many years was politically connected people pulling up to a city fuel sites where fire engines and police cars are refueled and filling up their private cars, and there was no meter reading on the gasoline or anything. In recent years, that all changed. My best friend was responsible for remodeling these fuel sites and installing all of the computer gizmos that track the fuel in terms of how much is pumped and where itís going. Iíve never understood it, but thatís what his job is. And he is the only one in the city that knows how this system operates. And so whenever they have a problem, they have to call him up. Now if he were to go on extended leave, I think the city would be looking at an undue hardship after about the first three days of that leave. I don't know what their solution would be because I don't know who they would get to come in and do the job. But if that's the case, that Chris talked about, the nature of the job. So I think, you know, youíve got to look at every situation and ask, "What are the facts? What are the facts? Whatís the employer have to say about the facts?" And the people that are in the best position to say, "This is an undue hardship" or "I can make this accommodation but not that one," no one knows better than the employer. No one knows better.
COMMISSIONER FELDBLUM: Thank you so much. My time is up.
CHAIR BERRIEN: Thank you.
And now we'll turn to Commissioner Lipnic.
COMMISSIONER LIPNIC: Thank you Madam Chair.
John, I'm sure that Ellen's clients will be thrilled to know you are circulating her testimony among the Chicago office.
COMMISSIONER LIPNIC: One of the things that I was hoping you could do is give us some flavor in both the Sears case or the Supervalu case for the reaction of the employer when hearing about "Wait a minute. You may have this very generous policy, but, in fact, thereís a violation here of the ADA in terms of bringing people back." If you could give us some sense of that.
MR. HENDRICKSON: Well, you know, the first thing you should understand, they were represented by Morgan, Lewis and Schottenstein. So they had the best counsel in the country, no offense Ellen.
MR. HENDRICKSON: Second, unlike many of our cases, unlike almost all of our cases, there were no defense motions for summary judgment.
Third, the deposition testimony in both cases was disastrous for them ever establishing there had not been a violation. And you know how quickly the second case was resolved. So I think they understood they had a very serious problem, that somehow or another ?? I don't know, you know, it would be a good business ?? how did this grow to be such a problem? Why wasn't it caught much sooner? But I think that they recognized that and they made a determination to fix it. And I think that's what the terms of the consent decree reflect. Don't forget those were consent decrees. They, with the advice of super competent counsel, agreed to all of those things. And I think in terms of, at least in terms of the leave issue, both Sears and Supervalu are going to be in a far stronger, far better position as employers going forward than they were in the past.
COMMISSIONER LIPNIC: And let me ask you as a follow?up to that ?? and this is part of your testimony. In terms of their use of a third party administrator ?? and almost all of the witnesses talk about this and sort of the drop?off in communication with the individual employee. And can you sort of give us some of the sense of that in both of those cases too?
MR. HENDRICKSON: Well, you know, they would have doctors' reports, which are so critical in the Workman's Comp area. We don't have to understand very much about Workman's Comp to understand Workman's Comp is a way that we figured out to deal with on?the?job injuries. And the progress of recovery from those injuries involves repeated medical, interaction with the medical community. Thereís a constant turbulence of information on Workman's Comp, but in these cases; that never seemed to reach whoever it was who was making the decisions about ADA leave. So you have this separation of information where if youíd been able to bring it together and integrate it, maybe a decision?making ?? the decision?making process would have certainly been much better informed. People would have been in a position to make informed decisions and to structure reasonable accommodations. But if all the person knows about administering ADA leave is, what is his name, what is his Social Security number, when did he go on leave, how long has he been out. If that is all you know, you're heading down a very risky road in terms of administering leave and compliance with the ADA. And I'm sorry to say my sense is that in both Sears and Supervalu; the people responsible for ADA leave administration and terminations, after a year, they just didn't have the cards in front of them.
COMMISSIONER LIPNIC: And Chris, let me ask you a question in terms of ?? and this is something that Commissioner Barker was asking and Commissioner Feldblum ?? in terms of written policies and if the employer has their policy about their leave in one place and then they have something else about ADA in another place, which I think weíve established is not a per se ?? we don't view that as a per se violation of the ADA. Do I have that correct from your testimony?
MR. KUCZYNSKI: I think that's right, that the ADA doesn't govern exactly how the policies have to be written. The ADA governs the obligation to make a reasonable accommodation. That is what the employer is responsible for, whether it ultimately makes a reasonable accommodation thatís required under the law, not how precisely the policies are written. And there could be reasons that employers, there definitely would be reasons that employers would want to maintain no?fault leave policies because there are people who abuse those policies or are out for leave that is greater than the amount provided under those policies for reasons totally unrelated to disability. And so there may be good reasons to maintain such a policy, and the ADA wouldn't prohibit that.
COMMISSIONER LIPNIC: But the one thing that I would hope that we can establish here is, would you recommend, though, to employers that, at least in their handbook or wherever they have their discussion about their leave policies; that at every step of that, there is some cross?reference to the ADA or as required by law under the ADA in terms of ??
MR. KUCZYNSKI: I think it would be a good practice for employers whenever they have some kind of policy that appears to be inflexible, that they're willing to, and that they may be required to in certain instances under the ADA, to modify; that that be incorporated into the policy where possible certainly, just as I think policies, although they're not required, of letting applicants for positions know that you're an employer whoís willing to make a reasonable accommodation so that someone can perform their job. Though not required, they're good policies because they send a message to the employees or applicants that you are an employer that provides reasonable accommodation.
COMMISSIONER LIPNIC: I see my time has expired. Thank you Madam Chair.
CHAIR BERRIEN: Thank you.
And I'd like to direct this first question to Chris Kuczynski. In your written testimony and your opening statement, you indicated that you have made presentations to hundreds of different audiences about the issue of compliance with the ADA and reasonable accommodations. And I believe that when you were interrupted in your opening, you were going to share some more information about some of the questions that have come up in the course of that exchange with audiences around the country. So can you share with us some of the concerns that youíve heard about and what, if any, specific things you think we might do to clarify or simplify our guidance?
MR. KUCZYNSKI: The concerns, Madam Chair, I have a sense that the employers that I have spoken to ?? and even if it is hundreds of presentations ?? and I think it is Ė itís an unscientific survey. But the kinds of employers that I have spoken to understand that leave is a form of reasonable accommodation under the ADA. We recognize that many of them have been dealing with that as an accommodation and have had it as part of their policies for many years. I think the issues come up around and the concerns and the questions come up around how much additional leave do I have to grant, particularly if I have a very generous leave policy to start with. Is there a point at which I can say, "I'll give six months or a year. Thatís sufficiently generous that I'll never have to extend that policy for someone who needs more leave as an accommodation"? Those kinds of questions come up.
Certainly questions about what happens when someone has made an initial request for leave, has given a projected return date or a range of return dates and as the date approaches; submits a modified return date request; changes the projected return date. What can I do in those situations? Essentially how many times do I have to allow them to extend the leave when theyíve given an initial projected return date, those kinds of questions certainly, questions about the interaction between the ADA and the FMLA, which I think the Commission has done a lot to try and elucidate for employers, but I think that they are issues that arise because both statutes provide the same type of what seems like the same type of benefit. How are they different? Can I use FMLA 12 weeks as an upper bound in providing leave as a reasonable accommodation? How do those statutes work together?
CHAIR BERRIEN: Thank you.
And a quick follow?up for you. What information can you share with us about the impact of leave as a reasonable accommodation on the recruitment, hiring, and retention of people with disabilities?
MR. KUCZYNSKI: I think that leave, providing leave, is an accommodation certainly. I don't know if thereís any demonstrated effect that employers who provide certain kinds of leave policies have a better track record in terms of hiring individuals with disabilities or get more applicants if thatís what youíre getting at. I don't think we have data on that, but I don't think we have much data on why people with disabilities are applying for any kinds of jobs. But I would say that I think that making it clear that an employer provides reasonable accommodation, provides leave as a form of reasonable accommodation in certain instances is going to make it more likely that people with disabilities, particularly people who have conditions that may flare up from time to time and require periods of leave or may need leave on a periodic basis; makes it more likely that those individuals are going to see that employer as someone who is desirable to work for. So I think it could certainly have a beneficial effect in terms of leading to more persons with disabilities applying for jobs with such an employer. And certainly the benefits of retention, it seems to me, seem obvious, that if a person with a disability is able to be given a period of leave or intermittent leave; that that person is going to be working, as opposed to not working. So I think the benefits for retention are pretty obvious.
CHAIR BERRIEN: Thank you.
And Iíd like to direct this question to John Hendrickson. In light of the individualized assessment that's required in these situations, one of the concerns that we saw in some of the testimony submitted for panel two was that an employer may need some sort of safeguard against a claim that their handling of leave request is biased in some way. Could you share a bit about how in practical terms employers can protect themselves against that kind of charge as they deal with making these individual assessments?
MR. HENDRICKSON: Well, I think two ways. First of all, I think you have ?? if you're an employer, if I were an employer, I can always say what I would want to do. And that is, I would make sure that whoever I add in that kind of decision?making position, Iíd want to be sure that they were not actually biased themselves.
Second of all, I would want to document the same way we documented hiring and promotions and everything else. Iíd want to document the request. Iíd want to document the considerations that had been taken into account, document the result, document what happened after the result was announced so that if there is an objective record that all parties can look at. I mean, I think weíve learned to do that in the areas of race and sex discrimination. We have long done that kind of reporting and documentation in consent decrees going back 30 years in race cases. We're now beginning to do it in consent decrees involving the ADA. We never used to have consent decrees in sexual harassment when I started because sexual harassment wasn't an offense. Now we have consent decrees prohibiting sexual harassment and requiring documentation of complaints, investigations and resolutions. And those are reported in the consent decree. So documentation, people know that thereís going to be a record, and somebody is going to be accountable for that record. It's sort of the doctors' ounce of prevention is worth a pound of cure.
CHAIR BERRIEN: Thank you. Thank you very much again to both panelists for your testimony today and for your participation in this meeting. I'm sure I speak for the entire Commission in saying that we have been greatly assisted by your input today. Thank you.
MR. HENDRICKSON: Thank you.
MR. KUCZYNSKI: Thank you.
CHAIR BERRIEN: We are going to ask the second panel to approach, but as we do the shift of witnesses and panelists, we will take a brief break. Please report back in ten minutes so that we can make sure that we release everyone according to the schedule weíve committed to. Thank you.
(Whereupon, the foregoing matter went off the record at 11:06 a.m. and went back on the record at 11:21 a.m.)
CHAIR BERRIEN: We'll come back to order and hear from our second panel this morning. And this panel will be addressing the issue, ďHow to comply with the law and appropriately permit leave for employees.Ē
The second panel features distinguished practitioners from around the country. We have Brian East, the Senior Attorney from the Texas Disability Rights; Claudia Center, Director of Disability Rights Program of the Legal Aid Society's Employment Law Center; Ellen McLaughlin, a partner at Seyfarth Shaw; and Edward Isler, a partner at Isler, Dare, Ray, Radcliffe and Connolly, P.C.
And we will begin this panel with testimony from Brian East. And please to all panelists; just remember our timing signals here. And you will have seven minutes, but youíll get the yellow light at six.
MR. EAST: Thank you, Madam Chair, Commissioners, General Counsel, Legal Counsel, the staff, thank you very much for this opportunity and for inviting me here. My name is Brian East. I am a Senior Attorney at Disability Rights Texas, which is the protection and advocacy system in the State of Texas. We represent people with disabilities in a variety of areas, including employment.
I really appreciate the Commission's interest and intent in focusing on this issue because I think that leave and, really, reasonable accommodation issues generally will become much more of a focus in light of the ADA Amendments Act of 2008, as Commissioner Ishimaru said.
Iím going to start with an overview of the law and begin with the proposition that there is little dispute about whether leave is a reasonable accommodation. It fits under the statutory examples. It is repeated in numerous guidance documents from the Commission. It is recognized by virtually every circuit. And the Supreme Court in Barnett referenced it as well. So there's not much question about that, but there is a big dispute about the proper way to analyze leave ?? I won't say a big dispute. There is something of an inconsistency in the case law about the proper way to analyze leave as an accommodation. And so, going back to Barnett, in which the Supreme Court spoke on this issue; it creates a two?part analysis for leave as an accommodation or for accommodation generally.
The first is a general question. Is the requested accommodation reasonable? And that is a general proposition. Is it the type of leave or a method of leave that on the face of it, in the run of cases, might be reasonable? And I would submit that with regard to leave, certainly not with regard to everything, but with regard to leave; that isn't an issue anymore. Leave is the type of issue, the method of ?? the type of flexibility, the method that fits under that reasonable in general, reasonable in the run of cases.
So after we establish that, then we look at what the Supreme Court called case?specific factors. And these fit under the defense of undue hardship. And those could be a variety of things. We have statutory factors to look at under the undue hardship defense. I think thereís an extra factor, extra clarification in the regulations consistent with that statute. But those are not exclusive in the sense that they themselves are general factors to look at. So a lot of things could be considered here: the length of leave, the indefiniteness of the leave. Every sort of harder issue that weíve been talking about this morning fits under this case?specific undue hardship analysis.
This is an individualized analysis, as people have repeatedly said. Virtually everything under the ADA is individualized. At one point I was doing a survey of Supreme Court ADA cases and the only thing I could generalize about the results in those cases was that the Supreme Court repeated the admonition that the ADA presents individualized questions. And, in fact, in the Olmstead case, the ADA spoke on the issue of what it referred to as undue hardship in Title II of the ADA, saying that that is an individualized, fact?based analysis.
So we know it's individualized. We know it's fact?based. And as a result of that, there should not be per se rules. There shouldnít be per se rules about length. There shouldnít be per se rules about definiteness. There shouldnít be per se rules at all because it really is based on the facts.
Now, a leave that is extremely long or a leave that is extremely indefinite, those are going to be a much easier case for showing undue hardship, not in every single case because it depends on the facts; but likely the employer will be able to do it if we're talking about super long leave or super indefinite leave. But again, my message is that this is individualized and not the stuff of per se or simplified rules.
In my written testimony, which Iím not going to attempt to go through, I did make some recommendations for updated guidance from the Commission. And the first thing I would say is really mirroring what others have said this morning and what has been said in the written material thatís been submitted, which is collecting the leave guidance in a single place would probably be very helpful. So I agree with that.
I think making some of these general points would be helpful, that leave is a facially reasonable accommodation, we don't have to agonize about that; secondly, that problems posed by the length of leave, indefiniteness, intermittent nature, conflict with neutral policies or FMLA; those things are the case?specific factors that should be addressed under undue hardship.
Weíve heard some this morning about the importance of the flexible interactive process, and I think that should be repeated in the leave materials. It is really important. For being not in the statute itself, it really is endorsed by every court that thinks about it for really good reasons. And it really is important in these leave cases. And I think there are a few things I would say specifically. Actually, seeing the yellow light, I won't.
The next thing is ??
MR. EAST: ?? I think we can clarify, the Commission can clarify, the proper analysis for attendance as an essential job function. I think there are a lot of problems with that statement. Those are set out in my written testimony. I think looking at that as a way to ?? as simply a prediction of the outcome is one thing, but, again, it is a fact?based determination, case by case.
And I'm going to stop there because my red lightís up. Thank you.
CHAIR BERRIEN: Thank you so much. And certainly your full written statement will be part of the record. And the question and answer period will also allow for some elaboration. We appreciate your testimony.
Weíll turn now to Claudia Center.
MS. CENTER: Thank you, Madam Chair. Iím delighted to be here to talk about the important issue of the reasonable accommodation of leaves of absence. Like any disability rights attorney, Iíve spent a lot of time working on leaves of absence on behalf of clients that I have. At the Legal Aid Society Employment Law Center, in addition to impact and enforcement litigation, we run workers' rights clinics throughout the Bay area, and weíve done it for 20 years. So on an annual basis, we see hundreds of low?wage workers who have employment problems; and a subset of that is hundreds of low?wage workers with disabilities. And these are folks who have very limited means, may have very limited or no English proficiency, may have limited literacy. And these are the folks that we talk to on a weekly basis about their need for reasonable accommodation. And a very common reasonable accommodation that these workers need is a leave of absence. It can be needed for psychiatric disabilities, cancer ?? liver failure was a recent client I have worked with ?? injuries or psychiatric conditions associated with domestic violence, orthopedic injuries. These are disabilities where typically the person may need a leave of absence. And I can speak more about that during the questions.
Leaves of absence are critical for retaining these workers with disabilities in the workforce, but my message today is that a leave of absence is not an end in and of itself. Too often the leave of absence ends and the worker is terminated. And that completely undermines and vitiates the entire purpose of the leave of absence, which is to enable the worker with the disability to recover, to maybe receive treatment or training, and return to work. If the employee is not able to return to work when they are able to do so, that's just a bridge to nowhere. That happens far, far too often. I've seen it countless times. So that's my message today.
Iíll endorse everything my colleague Brian said about the law of leave as a recognized reasonable accommodation. Iíd like to add that I think that barring undue hardship, the reasonable accommodation of a leave of absence should be granted whenever it would plausibly allow the employee with the disability to recover and return to work. And that standard is very important. Itís been outlined in some cases that I included in my written testimony because no worker can predict with total certainty the outcome of future medical treatment and recovery. And I believe that any guidance provided by the Agency should include that standard.
I would echo the comments of some prior witnesses that an employer policy defining a maximum length of leave must be subject to modification. And the application of such a policy to automatically terminate an employee after a certain length of time can violate the ADA when the worker needs additional leave. I appreciate that employers would prefer a bright line rule, but the reasonable accommodation mandate is individualized, as is the undue hardship defense. And that is the law.
Consistently, leaves of absence may be required beyond the 12 weeks granted by the Family and Medical Leave Act. ThatĎs not news to anyone in this room, but out there in the field, this concept is either unknown or disregarded in many workplaces of our clients. So it certainly should be reiterated in any guidance from the Commission.
I would like to state that lengthy leaves, even leaves longer than one year, may be a reasonable accommodation under some facts. Extensions of leaves of absence may be a required accommodation under some facts. There is no particular temporal point that defines the outer boundary of a required reasonable accommodation leave of absence. And that fact?specific nature of an accommodation leave should be emphasized by the EEOC. And such a long leave might be appropriate, for example, where someoneís undergoing cancer treatment or a transplant, something that will take a very long time, but it's plausible and even likely that the person will recover and return to work. And so that must be considered a possible accommodation.
One of the main points I wanted to make today is that the interactive process becomes critically important at the end of an employee's leave of absence. And unfortunately, what I have seen time and time again is thatís the moment where the communication seems to go completely off the rails and the communication becomes either impeded or ineffective. And although the worker is trying to come back to work, that doesn't happen, and they, instead, experience job loss.
In addition, some of these far too typical situations are often the subject of protracted litigation. And I've worked on many of those cases. I'm sure my other panelists have as well. Sometimes we win, sometimes we lose; but they are certainly hard?fought cases. And I think they can be avoided, particularly with Commission's assistance, through this proposed guidance.
What I think is very important is for employers to take affirmative steps to communicate with employees who are approaching the end of their scheduled leaves regarding their intentions and ability to return to work. Such communication should review whether and when the employee can return and should explore whether additional reasonable accommodations are needed, such as a further extension of leave, a modified schedule, or another form of accommodation. If additional information is needed to determine whether the employee will be reinstated, such as a fitness?for?duty assessment; any leave should be automatically extended while that kind of information is gathered. I actually worked on a case recently where the fitness?for?duty exam was scheduled, but before the employee attended it, he was terminated. So these types of missteps should be avoided. And that could help everybody, employers and employees.
This type of impeded communication can often arise with third party leave administrators. I wrote about that in my written testimony. Sometimes the third party leave administrators do not provide all of the information thatís relevant to the employer or they are gathering information but then the 12 months is reached, so they automatically terminate, despite the fact that theyíre in the process of gathering information. This can also happen with a Human Resources Department administering the leave as well.
There is a lot of discussion in the prior panel ?? let me just finish this thought, and then I'll end ?? about fixed leave policies, where there is a fixed leave policy and then a separate policy about the reasonable accommodation process. I would like to emphasize today that, even taking my most sophisticated clients, who read the handbook and see the fixed leave policy and then see separately a reasonable accommodation policy; do not believe they can get leave past the fixed leave. They do not read the document in that way. And so they do not know that they should ask for an extension of leave beyond the fixed length. So that can cause miscommunication at the end of the leave and completely impede the ability of the worker to come back. And I am hoping we can work on this problem. Thank you.
CHAIR BERRIEN: Thank you Ms. Center, and now weíll turn to Ellen McLaughlin.
MS. McLAUGHLIN: Chairwoman Berrien and Commissioners, General Counsel, and Legal Counsel, thank you for the opportunity to provide written testimony and to speak to you about this very important issue of providing leave as an accommodation.
Iím a partner in the Chicago office of Seyfarth Shaw, a firm that has one of the largest labor and employment practices in the country. I have represented employers in the employment law arena exclusively in the area of litigation defense and discrimination counseling for over 30 years, actually celebrating my 30th anniversary just last week, on June 1st with the firm.
MS. McLAUGHLIN: My practice regularly involves counseling employers on leave issues: FMLA, ADA, and other statutes that provide leave.
My focus today is to address some of the issues that larger employers face and their struggle with leave issues under the ADA. They are clear that unpaid leave is a form of reasonable accommodation that may need to be provided to qualified employees with disabilities under the ADA absent undue hardship. That obligation, as we all know, is not new. However, there have been a number of leave issues that have developed in the last few years that have caused employers' increasing concern and confusion.
I will not be addressing all leave issues that are cited in my written testimony, but just a few of them that I think are most important to the employers that we represent.
The first issue Iíd like to discuss is maximum leave policies. Increasingly, employers are using maximum leave policies to define the maximum amount of leave an employee may take before they must return to work or be terminated. Most employers understand that in the event an employee reaches a maximum amount of leave time under the policy and they ask an employer for an extension of leave or other accommodation; that they must engage in the interactive process and may need to modify their maximum leave policy.
And Mr. Hendrickson, with all due respect, if you take a look at the bottom of page 12, I, of course, mentioned interactive process ??
MS. McLAUGHLIN: ?? with respect to maximum leave policies.
MR. HENDRICKSON: I stand corrected.
MS. McLAUGHLIN: Thank you.
What has taken employers by surprise, however, is that the EEOC's enforcement seems to have gone far beyond the simple directive of modifying workplace policies that is stated in the regulations and subsequent reasonable accommodation guidance and, instead, seems to require not as a best practice, but require a process that is not only burdensome, but is also not legally required. The terms of the consent decrees and the Sears and Supervalu cases require those employers to provide written notifications to an employee at the end of their maximum leave period.
In the Supervalu case, three different letters prior to termination were required to be sent. Those cases also required the employers to create or utilize a leave management team to collect and review medical information to assess independently whether an employee could return to work, even when the employee had not asked for a reasonable accommodation.
Many employers we represent are left wondering whether the process mandated by the consent decrees is somehow the required approach. Yet, the regulations and the reasonable accommodation guidance say nothing more than an employer must "modify its workplace policies." The legislative history, the regulations, the reasonable accommodation guidance, and the case law are all very clear I think that it is the employee's obligation to ask for a reasonable accommodation unless the employer "knows, or has reason to know, that the disability prevents the employee from requesting a reasonable accommodation." Given this, there is no reason for employers to think that they have to notify employees that maximum leave has been reached and to ask them if they need a reasonable accommodation. From an employer's perspective, frankly, sometimes it seems that the concept of requiring the employee to be the one asking for the accommodation has gone out the window.
The EEOC we believe needs to issue guidance on these polices so that employers are not faced with these nationwide pattern or practice class actions and multimillion?dollar settlements that could have been avoided. We do not believe that an employer is required to create a whole new structure a la Sears or Supervalu in order to track employees on leave and make certain it then proactively and repeatedly asks employees if they want an accommodation. This may be a best practice issue, but it should not be something that is required as it is not consistent with the law. Rather, the guidance, we believe, should state that when an employer has a reasonable accommodation policy that clearly provides and explains the employee's rights and obligations, including perhaps that it can ask for an extension of leave under a maximum leave policy; that this has put the employee on notice clearly that they can ask for a reasonable accommodation. Likewise, there should be no additional steps required prior to the end of a maximum leave period in terms of the letter writing to the employee. The obligation to ask for an accommodation should remain squarely with the employee.
Next, Iíd like to address no?fault attendance policies. Most employers we work with do have some form of no?fault attendance policy that provides for unplanned ?? and that word is very important ?? unplanned absences from work can only be had up to a certain limit. Of course, job?protected absences, like the FMLA and ADA, do not count under these policies. These policies are put in place because it is very difficult for an employer to manage these unplanned absences. And they're left scrambling to fill the job when somebody doesn't come in.
Employers believe they can discipline and discharge people who have violated their maximum leave policies ?? I'm sorry ?? who have violated their no?fault attendance policies, even when the absences are due to a disability. I agree that the issue of whether attendance is an essential function needs to be revisited. And of course, employers ?? and I believe that if you are not there doing your job, you are not getting to any of the essential functions of your job and therefore, attendance itself should be considered essential.
These no?fault attendance policies seem to be under challenge by the EEOC. We have one matter where somebody has exhausted FMLA leave and then had ten occurrences under a no?fault policy. The individual then asked as an accommodation for an additional five unplanned absences per month. The employer was aghast when we had to discuss reasonable accommodation at all, saying, "This individual has been gone for way too long. We cannot run our business under these circumstances."
There are other issues that are covered in my paper that I know will be part of the written testimony. I strongly encourage, as all panelists I think are today, for the Commission to consolidate the guidances in one place, not only including leave but also addressing no?fault attendance and unplanned absences. This is especially important given the Amendments Act and the ensuing regulations which have expanded coverage to many more individuals. Thank you.
CHAIR BERRIEN: Thank you Ms. McLaughlin.
And finally, we'll turn to Edward Isler.
MR. ISLER: Thank you.
Madam Chair and Commissioners, General Counsel, and Legal Counsel, and noted guests and colleagues, Iím Edward Lee Isler. I'm the founding partner at Isler, Dare, Ray, Radcliffe and Connolly. I know it's a lot of names; I'm working on that ?? a firm located in Tyson's Corner. We specialize exclusively in representing management in labor and employment matters.
Our firm represents a number of what I would consider to be large employers, those with 5,000 or 10,000 or more employees. But I will tell you that a significant portion of our practice is spent representing employers who would be considered small and medium?sized employers; those with anywhere from 15 to 40 to 70 to 230 employees, 520 employees, employers of that size and shape.
And as I read the very thoughtful prepared remarks of my co?panelists and listened this morning, it does seem to me ?? and I think some of the Commissioners recognized this in your comments ?? that a lot of our focus and discussion has been on very large employers. And perhaps that's a natural occurrence given the focus of the Sears case and the Supervalu case and even, frankly, the fact that weíve got the Wal?Mart potential enormous class action case now pending before the high court. But I will tell you that if you go to the U.S. Small Business Administration's site and you try to learn about small employers, what you learn is this; that small employers in this country employ just over half of all of the private sector employees; that small employers pay 44 percent of the total U.S. payroll; and that small employers have generated 64 percent of the net new jobs over the past 15 years.
And so, really, my main thrust today is that as you consider putting out additional guidance, please, please, please be mindful of the fact that a significant number of the companies that really need this guidance, that need this help and need some direction are not the large companies that have massive in?house counsel staff, and massive human resources staff but; rather, are these small employers that, frankly, face a pretty tough row.
In many instances our clients started out as small husband and wife companies; they borrowed against their personal assets to get the companies going. It typically has taken them three to six to eight years to even start turning a profit.
One of my clients has 40 employees. He runs it out of his basement. Heís a government contractor. Another client has 21 employees. There are two founding partners, two owners. Both of them, in addition to running the company, actually serve on a government contract. So theyíre completely billable during the day, and then on weekends and at night, they're trying to run their companies. And so I would just suggest to you and again urge you that, really, any consideration of issuing additional guidance, take into account the fact that this is really where half of the U.S. work force is laboring. And, towards that end, I want to make, if I can, six brief points.
First of all, about small and medium?sized employers: small employers tend to be very thinly staffed, especially in challenging economic times. And you can read lots of articles in the papers these days that talk about how employees feel like they're being asked to do more and more and more with less.
Within the small employer community, you don't have a lot of individuals doing the same thing. You don't have 30 people all making widgets. Typically within the small employer community, everybody has a very special and unique type of job and unique responsibilities. And thatís not to say that if one of those employees needed to go out on a leave for some period of time, that some other employee couldn't step over, step in and carry the responsibilities for some period; but we're not talking here about a Sears appliance repair person, of whom I suspect ?? and John could probably tell us the number ?? there are literally thousands around the country. We're talking about a small employer where, again, everybody is in a very particular segment of the employer. And therefore, there really needs to be some recognition in any guidance that you offer in my view, in my humble view, that when we consider what is reasonable ?? and I do think we have to keep the word "reasonableĒ in the discussion and not simply jump to "undue burden" ?? when you consider what is a reasonable leave; that we need to understand the reality of the burdens that are placed upon other workers who are doing different jobs.
My second point is this. Temporary workers are not a panacea. They're not a cure?all in the small employer community. When you read through the various literature and the EEOC's guidance on a lot of these leave issues; there's a suggestion that, well, you know, you just simply go out and you call this temporary company, and then they send someone over, and you sort of plug that gap. Yes, if the person seeking the leave is someone who is serving in some sort of capacity that sort of cuts across company and industry lines, the receptionist, for example, yes; you can probably pretty readily get a temp receptionist, train them on whoís who and how to direct calls, and bring them in, but the reality is that, especially in smaller employers, as I said before, the jobs theyíre doing are very unique to the workplace.
Iím a small employer. We have ten attorneys. We have four full?time staff. I am very purposely staying below the 15?employee threshold. No, I'm kidding.
MR. ISLER: I'm kidding, it's a joke. When we bring in new staff, when we bring in new attorneys; it takes anywhere from three to six months for those individuals to really get the hang of things, to really understand where things are and how we as a firm function. Itís important to understand that while temp employees may be helpful in some settings in reducing the burden on the employer, they are not a cure?all.
Point three, small employers typically have very scarce resources allocated to the administration of the workforce. And Iíve shared with you a couple of very small examples a moment ago. But it is not unusual in the instance of a small employer to find ?? and I believe that Commissioner Barker mentioned this before ?? to find that the very same person whoís running the company is also doing payroll on the weekends and doing benefits administration late at night and is carrying a bunch of different hats. We're not talking here about employers that have an enormous HR staff and an enormous legal staff. And so as you begin to give guidance, particularly when it comes to interactive process, and you're giving guidance and you're trying to decide sort of how to allocate the balance; it's critical to recognize that we're not necessarily always dealing with these employers that have these huge administrative staffs.
Number four, I would ask this agency to recognize that when Congress passed the FMLA, it limited the application to small employers and remote workforces for a reason. FMLA, as we all know, came into effect three years after the ADA. Congress understood at that point and understands today that it is very, very difficult and burdensome for an employer that is under 50 employees to deal with these issues effectively. And I would love to spend more time talking about it. I want to respect the fact that my time is up.
Let me just close by saying this, if I may, Chair. And that is, as I said at the outset, small employers, small employers employ more than half of the workers in this country. As you issue guidance, I understand thereíll be a tendency to want to keep the Wal?Marts and the Sears of the world in mind. Please don't forget about the small employer community.
Thank you very much for listening.
CHAIR BERRIEN: Thank you. Thanks to all of this panel for your opening statements. And we will turn now to the members of the Commission for questions, statements, comments. And I will remind the full Commission and to the panel, weíre actually going to do two rounds of questions, a first round of six minutes per Commissioner and then a second round of five. So weíll have an opportunity to hear from everyone.
MR. ISLER: May I ask, is it possible to turn up your microphones? I find that Iím having some difficulty hearing you all.
CHAIR BERRIEN: We will all I think ?? we can probably move them closer.
MR. ISLER: A very modest accommodation is all Iím requesting
CHAIR BERRIEN: We will move them closer and just also remember to turn them off in between questions so that we don't pick up the background noise of papers, et cetera. Thank you.
And Commissioner Ishimaru?
COMMISSIONER ISHIMARU: Thank you Madam Chair. I think thereís someone in the control room who has that magic lever.
MR. ISLER: Very good.
COMMISSIONER ISHIMARU: And hopefully they can make that happen without too much difficulty or expense.
I agree with you, Mr. Isler, that we should be cognizant of the needs of small businesses. And I guess what bothers me during all of this discussion is sort of the intermingling of all of these various factors here. I agree that small businesses have different concerns, different needs, are in different situations than big corporations. What I haven't seen is whether ?? you know, Iíve not seen actual stories of small businesses being forced into bad situations. The illustrations that I see are usually large corporations who are saying, "We can't do that, we need this fixed policy in place. It isn't mom and pop." As in Mr. Hendrickson's case, it was Sears, you know, with tens of thousands of employees with open jobs that people could go back to. You know, I appreciate the changing nature of business and how youíre dealing in a different market economy. Yet, we mix that in with someone doing it out of their basement, and I'm not sure if the mixing of all this together is helpful. And I think your point is well?taken, that we need to make sure that we're addressing both on a policy level as well as on an enforcement level; to make sure that we recognize the differences between truly small employers, right, the mom and pops, the people running it out of their basements, the 15 or so people ?? if you're under the threshold, fine, but if you're over the threshold, recognizing that the 15 to 20?employee organization is much different than the tens or hundreds of thousands of employee organizations. And I think for people who are representing businesses coming from big firms, coming to us with these stories, you know, I think we need to make sure that we're talking about the same thing. And I don't think we disagree about that, but I think one of the dangers of this dialogue is that we sort of jumble it up. And itís easy enough to jumble it up.
You know, my question is, you know, I assume for big businesses, that a lot of these positions of keeping open a position is not the same as in a small business, where you don't want to hire somebody to take someone's position, even temporarily, because it's a huge burden. In a large corporation, I assume that there are positions that come and go and they're fungible. And I don't know if you, Mr. East, have found this in your work, that for larger organizations, that they are more able to deal with leaves of absences and filling positions and that they don't necessarily have to keep open and vacant certain positions within their organization. They can hire new people. And when a person can come back to work, they can find them an appropriate job. Am I mistaken?
MR. EAST: I don't think you're mistaken. The examples that I have seen are large employers, for example, that do telemarketing. And there is a large room with hundreds of people in there all doing the same thing. And they often have a group of floaters that fill in whenever anybody is out. But there's always 100 people there to do whatever has to be done that day. And so leave is a lot different for that employer than it is for others.
What I think, though, helps to resolve the different kinds of questions that we see in that example and in the small employer example that Eddie was talking about; is that it's individualized and it's case?specific and it's undo hardship. And so, for example, I can imagine a large employer that still would have difficulty and perhaps a lot of difficulty in replacing somebody, maybe to the level of undue hardship, even for relatively shorter leave. So I would think, my own guess is that statistically, those employers are more likely not to suffer an undue hardship for periods of leave, including fairly long leave, but, just like I wouldn't say that thereís no particular time period that is too long; I would say thereís no size that insulates the employer from, or insulates the employee from, having to face the undue hardship consideration. So I think those considerations are going to be really different in a lot of those situations. And in the examples Iíve seen personally recently that Iím thinking about; it did not appear to be particularly difficult to work around leave relating to seizures and other things. But I wouldn't say that across the board because it may be, as has been said, a unique kind of job. It may be a large workplace but a small subgroup, and maybe other people from different subgroups can come in and fill in, but maybe they can't. So I think thereís a lot of things that could go into that.
COMMISSIONER ISHIMARU: Could I pose a question to the plaintiffs' attorneys? One of the issues that have been raised is sort of the breakdown of the interactive process and sometimes not getting a request or not having that dialogue back and forth. Have you found that in your cases that the interactive process has broken down on your clients? Do they disappear? Are they not available to tell what their accommodation request is? Have you found that to be the case in your practice?
MS. CENTER: Well, I'll start an answer, which is that typically our clients are not very sophisticated, and they're just trying to follow what the employer tells them.
And so when an employer has policies that don't make clear the options available to the employee, for example, the maximum leave policy that weíve talked about today; the employee literally has no idea that they can request additional leave. And so to the extent that the interactive process breaks down, I believe itís because the employer has not communicated the range of possibilities and the employeeís been misled about that and so perhaps doesn't ask for additional leave because of that policy. So I would say it's the employer's failure to communicate that policy that has caused the breakdown.
MR. EAST: Yes. In my experience, I certainly see cases that are stronger than others, but I don't see cases where the employee just sort of skips. And I suspect it's because they don't come to me. They don't think they have any rights, and theyíre probably right. They don't come to me. But the ones that come to me are typically ?? they were told they had to be back on a certain date. And they come back on that date, and they were told, "No, that date's wrong, you're out." And that happened last Thursday or, they say, "I'm ready to return, but my doctor says I can't do this thing for another six weeks." And they say, "Sorry, you have to be 100 percent healed." So I don't see ?? I mean, I'm not saying it never happens, but I don't see in the people that we work with, examples where the employee does nothing to express their interest. Often the initial doctor's letter says this person needs a period of leave, gives a return to work date typically, and so everybody knows there's this need there. And it does ?? and the point has been made that the flexible interactive process is so important here. And a lot of times it's just, "FMLA is gone, you're gone" or, "Our policy is this, you're out." And I think the employees are trying. Now, theyíre certainly not doing all that I might counsel them to do. And certainly I have lots of things to tell them of ways to make clear to their employer what their needs are and to be flexible in that discussion, but I think theyíre trying.
COMMISSIONER ISHIMARU: Good, thank you, Madam Chair, appreciate the second round coming.
CHAIR BERRIEN: Thank you.
And now we'll turn to Commissioner Barker.
COMMISSIONER BARKER: I'm not very good at this. Are you all able to hear me?
Really good, insightful observations and recommendations from all of you, I really appreciate it. One thing, Mr. Isler, to your comments about ?? and I'm very, you know, personally attuned to small businesses because those are my clients. And when I say, "small," I mean, in Alabama, if we had a 100?employee client, that was a big business, so we're talking very small. But one thing, to just kind of follow on what youíve said is, when I think of a small business, a truly small business, so often to me that small business thrives on one key thing, and that is relationship building, period. And so when a small business loses a key person for an extended period of time; they're losing all of the trust relationships that person has built with that very fragile client/customer base. So that is why to me small businesses have employees that they can't just pick up the phone and call a temp service and replace because if they've got somebody whoís going to be out for an extended period of time that has built those years of relationships with the small client base or customer base; then at some point theyíve got to make the difficult decision, someone has got to start the process of building those customer/client relationships again. At what point do I have to begin that process because this is a huge gap in my company?
But I was very interested, Mr. East, in your recommendation. And I think you and Mr. Isler, maybe all of you are recommending that we address the concerns of small businesses in possibly a separate guidance? And I don't know if that will work out, but at least maybe a separate Q&A for small businesses, because I do think that so often they have questions that a large corporation will not have. For example, a question that I often got was, "Amy is out on extended leave. She's been out. You know, weíve been working with her. And, first it was weeks, then it was months. And for a while we had communications with her. And now she stopped calling us, like we asked her to. We're calling her. We can't get her to answer her phone. We send her letters asking her to call, she didn't respond. We go by her house, ring the doorbell, and she doesn't come to the door. Now I don't want to be accused of harassing her, but what do I do?" And I think that's the kind of question that a large corporation would not have. It's just a practical sense sort of thing. Is that what you are recommending, Mr. East, or ??
MR. EAST: Well, I wasn't necessarily recommending a separate guidance document for small employers. I was just noting that small employers' issues are often different. And, therefore, the kinds of evidence that I would expect to see from a small employer about why they can't adjust to this requested leave, might be different from what Iíd see from a large employer. I think best practice guidance is great, and I think Q&As for small business is great. But what I was suggesting is a consolidated guidance that is generally applicable to everyone, which I think works because I think the message is that it is individualized. But I think it could recognize by way of examples, et cetera, the differences between small and large businesses that might exist, they don't always. It may be an undue hardship for a big business that we would be surprised about, but in reality, and it may be not an undue hardship for a small business that also might surprise us. So that was really my point.
COMMISSIONER BARKER: And I know Ms. McLaughlin made the point, too, of consolidating the guidances. And I totally agree with you on that because employers and employees need to be able to go to one document and get their answers because sometimes they don't even realize there are other documents they need to be checking for.
So I want to invite you to make any other comments you might have about our guidances, particularly to small businesses.
MS. McLAUGHLIN: I would just like to say on behalf of larger employers ??
MS. McLAUGHLIN: ?? that employees for larger employers are not fungible. That's in one of the cases, and it is a common word that is used for employees of large employers. And from a large employer's perspective, that is so not true. They were hired to do a particular job. They were trained to do that job, they know the system, just like at a small employer. And I totally agree with Mr. Isler when he said, hiring a temp to do an employee's job, even at a large employer; should not be evidence that the employer cannot prove undue hardship, because the reason the person was hired thatís out on leave in the first place is because you wanted that regular full?time person. Temporary workers don't come with training. They have generally absenteeism issues. They're temporary by their very nature. So while I understand the focus on small employers, I would hate to lose sight of the fact that employees at large employers are not fungible and that I would encourage the Commission to understand that simply hiring a temp is many, many times not the answer for the large employer.
COMMISSIONER BARKER: Oh, absolutely. They don't have a knowledge base,
MS. McLAUGHLIN: That's correct.
COMMISSIONER BARKER: ??that the person has been there for some period of time has done. And you really can't afford to stop everything and give them the training they need to really be functional.
My time is up. Thank you.
CHAIR BERRIEN: Thank you.
COMMISSIONER FELDBLUM: Thank you very much.
Number one, Mr. Isler, thank you for noting the statistic that 50 percent of the workforce in this country is employed by small employers. That was the point I was trying to make in my opening statement, that these employers are not used to giving 12 weeks of FMLA leave. Now they are under the obligation of the ADA. And that's why the undue hardship analysis is so important for those individuals. Now, perhaps we won't have the bad habits of 12 weeks and you're out for those folks. So maybe it's nice that we're starting from scratch.
So I have the same question for all four of you, although I expect somewhat different perspectives perhaps from plaintiff and management, but the same question. And I hope you don't mind if I cut you off after a minute and a half so it stays within my time. It's the same question I had for the first panel. So, as Ellen McLaughlin noted, undue hardship should include factors such as lower quality of work, lower productivity, lower customer service, lost sales, increased burden and sometimes because you have temp workers, let's say.
Number one, do you agree that factors such as this fit under the statutory provision that you look at the impact of an accommodation on the other workers and facilities and that we said more clearly, even in the regulation? A) Do you think those factors apply Ė thatís for all four of you ?? as a matter of law?
Two, if you do, how do you think employers should be documenting that or determining that? So from a plaintiff side, what would you see as "Oh, if I see that employer has done that, I think it is an undue hardship or not"? I'm not asking you to say what is and isn't an undue hardship but just conceptually. And then the same thing from management side. What would you be telling your employers to be documenting?
MR. EAST: Yes. I think those factors do fit under the undue hardship. And, actually, to me one of the most striking things about listening and reading the testimony here today is how much I agree with everybody. I suspect that I would differ a lot with folks about what is an undue hardship in a particular case. But in terms of the kinds of things that have been suggested that make it difficult for employers, I agree. And so yes, I think those factors are appropriately considered. And the kind of thing I would expect would be ?? and my cases, frankly, are often against medium to smaller employers, less often against large ones, for whatever reason, and so, you know, maybe a little bit less sophistication; but I would expect to see supervisors testifying, for example, that we attempted to get a temp but we couldn't, or we got a temp, but it cost this much or that we are, in fact, impacted by the current economic times. So what Iíd want to see for me to assess it and what I would expect the court would want to see are not the generalities, not like this is a hard economic time or temps are ?? there are negatives to hiring temps, but Iíd want to know, yes, but what was it here? What was the thing here?
So I think all of the factors that the Commission and the witnesses have talked about are relevant.
COMMISSIONER FELDBLUM: Great, Ms. Center?
MS. CENTER: I would agree with Brian that the factors listed and probably additional factors are relevant considerations in the undue hardship analysis, and any admissible evidence or any evidence of specifics of how those factors actually existed in the particular case, not sort of hypothetically, but actually existed in the case, concrete examples, a logical explanation, testimony of supervisors and managers.
I'm working on a matter now where the employer was explaining about the needs around hiring for an academic year. And so that might be part of the analysis. And when that thought was explained, that seemed logical to me. I factored that in. So I think all of those factors are relevant. And just it needs to be concrete and specific.
COMMISSIONER FELDBLUM: Great, Ms. McLaughlin?
MS. McLAUGHLIN: And, of course, because it was my testimony, I totally agree that the factors should be considered.
MS. McLAUGHLIN: In terms of how an employer proves that up, I agree with my esteemed panelists that it is perhaps supervisory testimony. I think it should also be looked at in terms of, let's take lower production or sales. It doesn't need to have to be for the entire organization. The focus can be simply on the department in which the employee who is now on leave worked and what the impact has been on that department given the fact that the individual is on leave. Perhaps it would be that while you can hire a temp, that the temp agency keeps sending you a new person every week, and thatís not working very well for you. Cost for large employers is really not going to help their defense in undue hardship. It has to be looked at in terms of the impact on the business, which I agree will depend on the situation, but I encourage again Ė youíll hear this, and you saw it throughout my written testimony ?? the temps are just not the answer. Theyíre not the end of the inquiry, and it should be focused not on the entire organization but the effect on a particular segment of the business where the employee on leave is coming from.
COMMISSIONER FELDBLUM: Great, Mr. Isler, youíve got the last 30 seconds.
MR. ISLER: I'll try to talk fast. I agree that you have to look at the impact beyond just simply dollars on the workplace more broadly. How do you document that conceptually? I think some of the things you can look at are you can look at overtime, for example, are you having to pay overtime to coworkers having to fill in and put in extra hours or to several coworkers who are filling in? So that does become sort of a numbers, a cost issue. But the thing thatís very hard to measure, to be honest with you, is sort of the unhappiness and the lower morale. And I'm not talking here about a situation where the employees are unhappy because they think that Sally is getting away with something. I'm talking about the fact that they are already stretched and now they're being burdened even more. And, frankly, sometimes you can measure it by the fact that people leave. And I have had situations where I could share stories with you where clients have lost very good, key people. And when they do the exit interview and ask why they've left, they've said, "You know what? I'm, frankly, tired of picking up the slack for everybody else."
And then another final point Iíll make since the red light is staring me in the face is this. My client base here in the Washington, D.C. area is enormously government contractors. Government contractors are putting people on site at government facilities. They are integrated with the workforce. Their customer, which are your sister and brother agencies, are not happy with the fact that their employees, my clients' employees, that are supposed to be there doing something are now gone. And frankly, an enormous number of these jobs require some level of security clearance. You're not just going to plop a temp in there. You're not just going to put someone else in there. It becomes an enormous burden. And to get someone with a security clearance takes about a nine?month process. So I can't invest in getting someone a security clearance if I don't know that they're actually going to become my full?time employee. That's a significant burden.
COMMISSIONER FELDBLUM: Okay, Great. Thank you.
CHAIR BERRIEN: Thank you.
And Commissioner Lipnic?
COMMISSIONER LIPNIC: Thank you Madam Chair.
I wanted to ask a question to all of you related to the interactive process because youíve all talked about it and John Hendrickson mentioned it, talked about it in terms of the Sears case and sort of the breakdown in that process. So this is sort of a question for all of you to address because, you know, Mr. Isler, you talk about how you think that ?? and, Ellen, you said this, that you think the Sears case sort of establishes this obligation beyond what is currently required under the law in terms of whose obligation is it to ask for the accommodation and how the employer should go about that process?
Ms. Center, you talked about, though, how you often see that it's the case and I think, Mr. East, you mentioned this, that the breakdown in the process, particularly toward the end of the leave, and that you very often have clients who have no idea even when they get this communication from the employer that maybe they can ask for additional leave. And I guess one of my questions is, do they even know if they get a letter that says you can request an accommodation or let us know if you need an accommodation, even what that means?
So I want all of you to sort of address your thoughts on the interactive process and then how do you think that we should as a Commission be providing some better guidance? Where do you think those obligations lie? I mean, obviously we want people who have disabilities to be able to come back to work. I'm making the assumption that's what the employers want, too, but given sort of your views of whose obligation it is under the law, but given the goal of wanting to have people back in the workforce, what should we do on that? And so I'll start with you, please.
MR. ISLER: First of all, let me just say that, you know, there are two phrases that I utter to clients all the time. Those phrases are ?? I think Johníll be gratified to hear this ?? "interactive process" and "individualized assessment." Over and over again I tell them, "interactive process" and "individualized assessment." If I had a nickel for every time I've ?? well, I do, actually, but ??
MR. ISLER: So you say this to them ??
COMMISSIONER LIPNIC: Let me just say your hourly rate should be higher than that.
MR. ISLER: And you say this to them, and you say this to them. And sometimes they get it, and sometimes they don't. And so in terms of answering your question, what can be done by the Commission, I think providing some examples and painting some pictures of what the expectation of the employer is and then really sort of recognizing that then it falls on the employee, I agree. I mean, I don't Ė Iíll go back to what Brian said. I think there's a lot of stuff here that we actually agree on. And I agree that the employer needs to reach out to the employee and let them know, "Look, this is coming up, your time is coming up. You know, you need to get back in touch with us." I will tell you and I think that youíll recognize this, Commissioner Barker, that there are lots of situations where people don't respond. We do send out lots of letters. And I tell clients, "Don't send them with the green certified card because people don't even go to the mailbox to pick those up. They won't go to the post office, they think it's bad news." So I say, "You've got to send it to them by UPS. You've got to send it to them by certified mail and by regular mail, all those different ways." And I would note that even the Commission in dealing with people that have filed charges; if someone doesn't keep up to date with you all and tell you what their most recent address is and they don't respond and request that you all have for information, you shelve them. And that's what happens a lot in the employer community. We send the letter out. We don't hear anything. The date comes. We tell them "We need to hear back from you by this date as to what your situation is and whether you can come back." Thatís sort of our standard letter. We just need more information. And we don't hear a thing. And then the question is, do I now have to go to the point of sending a second letter? Do I have to send somebody to knock on their door to make sure that they're still there, that they got the letter? So I think giving examples of hereís what the expectation would be for employers I think would be very helpful.
MS. McLAUGHLIN: I struggle with the fact that the law requires the employee to ask for a reasonable accommodation. And what we're hearing is to turn that on its head and to suggest as a best practice and certainly I hope not require more than that. So where I see this going is as follows: An employer should have, and I think with the Amendments Act, many more employers are having a robust reasonable accommodation policy that sets forth the obligation not to discriminate and the obligation to provide a reasonable accommodation. And it certainly could be suggested that as part of the accommodation policy; it would alert employees to the fact that under an employer's maximum leave policy, one of the accommodations they could request is an extension of leave.
In terms of the letter writing, many employers we represent do send one letter before the individual is terminated, and if they don't respond, they are terminated because, again, the feeling is that it's their obligation to ask.
In terms of some of the things in the Sears and Supervalu consent decrees, sending a health care certification along with the letter, I don't think that that is necessary, nor a best practice. Independently looking at medical files to see whatís in there, I don't think thatís a best practice.
I want to mention just a third party administrator issue. Really, most third party administrators, unless you're farming out leave administration; third party administrators are administering the payment of benefits. They are getting typically medical information about the employee, not return-to-work information. And it is made generally very clear to employees that with respect to return-to-work issues, they are supposed to be asking the employer or telling the employer they are ready to return, frankly, much like the obligation to ask for a reasonable accommodation.
MS. CENTER: My experience is that employees who are on leave ?? let me back up a minute. I think that when an employee goes on leave, the interactive process has been triggered. The employee has a disability, they need an accommodation, they're on leave, that process has started. It's a continuing process. It may go into a hiatus while the personís receiving their treatment and trying to recover and not trying to come back to work for the moment. But toward the end of the leave, when the worker is trying to come back to work, that process should be re?initiated. And typically the employee is not aware or completely clear about what it is they are supposed to do and which, should they communicate with HR, the leave ?? actually, Iíve been working more with leave administrators or the ?? you know, how are they going to get back to work? So I actually think that the employer does have affirmative obligations as a matter of law, not as a best practice, toward the end of the leave, because the interactive process is ongoing.
MR. EAST: I was just going to say the same thing, that I think in leave cases that have started, the request has been made, so the interactive process has been triggered. And so what we're really talking about here is issues that come up because things don't go perhaps as planned; they don't come back within the employer's policy or they don't come back in the time they thought they were going to or they're coming back but they have additional restrictions permanently, for a time, et cetera. So I think it is typically not the issue of the triggering. So I agree that, as a general proposition, it is the employee's request that triggers the flexible interactive process.
I think there are exceptions that have been recognized in the case law. I think those might be noted and sort of summarized in the guidance. But I think what we're talking about here is really not the initial trigger because thatís usually happened with the doctor's letter that happened at the beginning of leave or whatever. But it's more difficult things. And I just think there needs to be a lot of communication.
COMMISSIONER LIPNIC: Thank you Madam Chair.
CHAIR BERRIEN: Thank you.
Ms. McLaughlin, Iíd like to refer to something in your testimony and give you the first opportunity to respond, but ultimately if any member of the panel has something to add on this point, Iíd like to hear it.
You referred in a number of points to the Mercer surveys. And the discussion in your testimony or your written statement was highlighting some of the information from that survey concerning cost and what youíve described as both some of the intangible as well as estimated costs associated with providing leave as an accommodation. I wanted to know if either that survey or other information that you're aware of and can bring to the attention of the Commission; addresses the benefits of providing accommodations for workers with disabilities including and specifically in light of our meeting subject today, leave as an accommodation.
MS. McLAUGHLIN: With respect to the Mercer survey, just by way of background; it surveyed 276 companies with an average of 3,900 workers and did cover different types of leave, unplanned absences, planned absences of short?term duration, extended absence of greater than one week. And it focused on whether or not the replacement workers, the temp workers, were as efficient as the regular employees, which of course, as you know, is one of the issues that is a hot button for me.
In terms of whether it talked about the benefits to those who are disabled who are on leave, that was not, to my knowledge, the focus of the Mercer study.
CHAIR BERRIEN: Or to the employer or workforce overall in terms of the benefits of retaining an employee with the benefit of accommodation.
MS. McLAUGHLIN: I don't believe that was the focus, although I think Mercer, who is a very large HR consulting firm, would agree with all of us generally that in theory the leave for most people, you know, and employers is a benefit because the employer wants to bring people back to work. They've invested lots of time and money in them. And it is much simpler for the employer to bring back an employee from leave. And they hope to do that at the end of the day.
CHAIR BERRIEN: Would anyone else on the panel like to add anything, either related to information that we might be able to turn to concerning the benefits of providing accommodations, including leave, to enable disabled employees to remain on the job or return to the job?
MR. EAST: I was only going to say in listening earlier that I know at my particular workplace, we are interested in a workforce that reflects the communities that we serve. It's in our union contract and in everything else we do. And having a flexible leave policy that we can advertise and discuss with prospective hires is very important. Itís important to attracting people with disabilities to the workplace, but itís important for everyone. We can't pay always what weíd like to pay, but we can attract in other ways. So I think thereís a real benefit there to the company in trying to retain and in recruiting.
MR. ISLER: If I could just add briefly, I do think thereís a role for management side, attorneys. And I don't say this to sound Pollyanna but to really educate their clients on the value of retaining good quality people. And I have on more occasions than I can count on my fingers and toes, been the one who has sort of talked my client back from the ledge, not just because of my concern about legal exposure, because they want to get rid of someone whoís missed this time and needs to go off; but because Iíve reminded, them, that, "Look, this personís been a valued employee, they have a lot to contribute. Do you really want to sort of engage in this knee?jerk reaction where they're telling you they need to take this time off and you're like 'Well, I'm just going to replace them', even assuming that legally you can do that?"
So I hope I am answering your question, but I think itís important for all of us around the table. I don't think I can convince the plaintiffs' counsel, but, even for those of us on the management side, to get our clients to do the right thing. I mean, if I had more time, Iíd tell you a story of talking to a client ?? you know, they had an employee who suffered from epilepsy, worked on a client, government site. He was having seizures about once every three months. Each time an ambulance would come, it was a big disruption to the site. The government agency went to our client and said, "He needs to go." And they were preparing to get rid of him. And I said, "No," not just because I think legally there is a real problem there; but because why would you do that to this guy, you know? I mean, so okay. So your client has to put up with an ambulance showing up once every three months. That's life. And they ultimately followed my advice. And, frankly, they're thankful to this day that they did. I think thereís a real opportunity there for those of us on both sides of the aisle to really assist our employers in being thoughtful.
MS. CENTER: Iíll just add that the employees that we typically represent at the Legal Aid Society are workers of very limited means. They take only the leave that they absolutely must take. And when they do lose their jobs while on leave, many of them are economically devastated. Weíve seen clients become homeless. And it takes quite a while for that individual, if at all, to reenter the workplace.
CHAIR BERRIEN: Thank you all very much. I will try to make up a little of our lost time for round one now. And I think weíll move to round two and begin with Commissioner Ishimaru.
COMMISSIONER ISHIMARU: Thank you Madam Chair.
Again, there are so many issues here. We mix apples and oranges. I think one of the things as Iím listening to this that is troubling, weíve done meetings in the past on how do we employ people with disabilities, how do we get people with disabilities into the workforce, universal agreement that we should be doing a better job at doing that. And, yet, these issues around leave are dealing with, frankly, a small subset of the population of people with disabilities because most people with disabilities aren't in the workforce. And the challenge for all of us is, how do we do a better job at doing that? And, I think as we talk about this, we need to keep that in mind, that we don't lose sight of the fact that for so many people with disabilities who want to work, they can't get into the workforce, like it or not.
I want to go back to your point, Ms. McLaughlin, about the fungibility of work. Certainly employees are not fungible, alright? But jobs are fungible. And if a company has the same job where they can slot people in to do that job; that works to their benefit, I take it, that they can swap out people who can do the job that they need done. I'm assuming that thatís the reality that employers face.
MS. McLAUGHLIN: Well I guess I would respectfully disagree. Let's say you have a department of 100 people, all who are widget makers, ??
COMMISSIONER ISHIMARU: Sure.
MS. McLAUGHLIN: ?? and you have two or three widget makers who have disabilities who are on a leave of absence. You only have 97 widget makers left to do a 100 widget makers' job. And somehow that work has got to get done, that's part of the employer's business plan ??
COMMISSIONER ISHIMARU: Sure.
MS. McLAUGHLIN: ?? and the way they run their operation. So what does the large employer in that case do? Sometimes they try to spread the work around of the three widget makers who are gone ??
COMMISSIONER ISHIMARU: Right.
MS. McLAUGHLIN: ?? back to the 97, but then they're working harder. And they're not very happy about it.
COMMISSIONER ISHIMARU: But it could be a marginal cost. If they're adding a little bit more, thatís certainly on Mr. Isler's view, that doesn't break the camel's back, right? Well, you could argue that it does.
MS. McLAUGHLIN: Right.
COMMISSIONER ISHIMARU: And I think we could have a disagreement over that. But thatís one way to do it.
MS. McLAUGHLIN: Right, or you could hire the three temp employees who aren't trained, who again, as I said earlier, may not be at work every day. You may get different temp workers. And the fact of the matter is, the employer has determined it wants 100 full?time widget makers in order to run its business to make the profit that it needs to make stay in existence. So I think the focus still is on the people, not the positions.
COMMISSIONER ISHIMARU: Sure. But people are cross?trained. People do jobs that are outside their formal job description in real life. We know that the proverbial widget maker ?? you know, it's nice to think about it that way, but quite often people do other jobs. And people spread the work around and people factor in. I would assume employers factor in for situations where people cannot go at 100 percent all the time. People take vacations. People are out for a whole variety of reasons. I assume that that factors into the business model as well. Again, I wonder that these positions are fungible to a certain degree. And I'm having a hard time seeing how we have to go necessarily to the temporary employee model because thatís certainly one model you could go to, but it's certainly not the only model.
MS. McLAUGHLIN: Yes, but I still think the issue is, even if people are cross?trained, you still have a number of people who are cross?trained. And when individuals go off on leave, you have fewer people to get the work done.
COMMISSIONER ISHIMARU: Sure.
MS. McLAUGHLIN: And therein lies the problem. And it's an even bigger problem in today's economy because so many employers are working very, very lean. So they have the fewest number of people right now getting that work done. And if one or two people are gone, it does present problems.
COMMISSIONER ISHIMARU: Sure. Thank you very ??
MR. ISLER: If I could just comment briefly? And I don't want Ellen to ?? she's going to defriend me from Facebook if I don't agree with her.
COMMISSIONER ISHIMARU: It's dangerous on Facebook.
MR. ISLER: It's really unfortunate. And I don't want that to happen, Ellen, but I will say one of the questions I ask clients ?? so put aside widget makers. Let's talk about call centers because call centers are sort of the closest thing that I know ?? some of my clients operate fairly large call centers, 1,000 people doing either telemarketing or doing collections work.
COMMISSIONER ISHIMARU: We actually had a call center once here.
MR. ISLER: Yes. There you go. You guys used to call. I think I put you on my "Do Not Call" list.
MR. ISLER: And so the reality is one of the questions that I will ask them when they call me and they want to know, how long do we have to let this person stay out there for? And I'll say, "Well, let me ask you, are you advertising for positions now?" And some of them are always advertising for positions.
COMMISSIONER ISHIMARU: Sure.
MR. ISLER: Those are high?turnover jobs. They are always advertising for positions. And I tell them, "Look, you're going to have a really tough time arguing that it was an undue hardship to let this person sit out there on leave for a fairly lengthy time because you're constantly in hiring mode."
So if Ellen's hypotheticalís correct, then I agree with you; youíre in a small town, youíve got a very thick set, youíve got 100 widget makers. That makes sense. I do think that we, employer counsel, need to be careful. And I always think itís important to ask this question, "Do you have any other vacancies now? Because you've got to explain to me why youíre going to terminate this guy because he hasn't come back to work when you can't even fill the jobs that you have." Sorry. I just wanted to ??
MS. McLAUGHLIN: I'll still be your friend with that answer.
MR. ISLER: Thank you so much. That's good.
COMMISSIONER ISHIMARU: Thank you very much.
Madam Chair, I hope as we think about how to bring this in the future, that we do a meeting or some sort of situation focused on small businesses and really sort of laser in on the problems that small businesses are facing because, frankly, many of your clients from the employer side are big businesses, certainly Seyfarth, I would assume, Commissioner Lipnic, from your work there, you know, big businesses. How do we focus our look at the problems, the real problems, faced by small businesses? You know, I think all of us are sympathetic to real small businesses. And how do you deal with that? But again Madam Chair, thank you.
CHAIR BERRIEN: As they say, we're so glad you asked. And I'll be turning over the questions now to Commissioner Barker, but I will also say that she has very graciously agreed not only to help us highlight the issue but to help us find ways to better address the needs of the small business community. So that is already underway, and we're excited about that.
COMMISSIONER BARKER: Thank you.
Stuart, to your point, too, about not forgetting that we're focusing on only those, the disabled who are able to get jobs; I want us not to lose sight of the fact, too, that what we have before us is people who are well, in the employment side, people who are dealing with employers in the private sector. And before we shake our fingers at them too much, I think we need to not forget that the federal government is not exactly setting an example on hiring the disabled. So before we preach to private industry to the extent to which they are reaching out and hiring the disabled; we need to do a better job of cleaning up our own act.
But now that I have preached, ??
COMMISSIONER BARKER: ?? Ms. McLaughlin, I did want to ask you something because something you said piqued my interest. Youíre talking about medical records. And I think what I heard you say, but I may have misinterpreted, is you are expressing a concern that the concept that an employer ought to get their arms around all medical records, that different administrators, Workers' Comp, this, that, and the other, that that may be problematic from several standpoints, but I think you mentioned a concern that legally those files may contain information an employer should not have. Would you address that?
MS. McLAUGHLIN: I mean that's a very good point. I'm sure, as we all know, the medical records that we're supposed to obtain with respect to an employee on leave are really only supposed to be those records that pertain to the disability and the needed accommodation and should not go beyond that. So if somebody is on a Workers' Comp leave, you may have records that go far beyond the disability or if somebody is on STD; that employer or, really, TPA may have information again that goes far beyond the disability itself in an attempt to get that person back to work.
My other real point was that most employers do keep a wall between the TPAís determination about whether somebody is eligible for STD. It's a payment issue, it's not a leave issue. And again, the communication is clear to the employee that if you're ready to return to work, don't go to the TPA, who is administering the payment. Come back to us, we're the employer, don't go to the TPA.
COMMISSIONER BARKER: Yes. Thank you. Appreciate it.
I really don't have any more comments, but, again, thank you all. This has been tremendously helpful.
CHAIR BERRIEN: Thank you Commissioner.
COMMISSIONER FELDBLUM: Great, so again I've got the same question for all four of you, but now this is on the issue of the respective obligation of the employer in terms of reaching out to the employee and the employee's obligation, basically the thing that Ms. McLaughlin spent the first part of your oral testimony on.
So again, just to situate this, right? So in the statute, the statute says that discrimination means not making reasonable accommodations to the known physical and mental limitations of an otherwise qualified individual with a disability. That's all the statute says. When Congress was passing the ADA, there was a lot of discussion about how does the employer know, and there is stuff in the legislative history that says employers don't have to have a crystal ball, you know. And so ordinarily it is the individual who comes forward with the request for their accommodation, but the legislative history says, as does our guidance, that if there is reason for the employer to know anyway; that triggers the level of knowing.
Now, hereís my question. What you said is so, therefore, when the person goes out on leave, that triggers the obligation. So this is mostly for employers with 50 or more employees, because for the 50 and under, I think that's right, that's what's going to happen. But for the 50 and over, that just think about that thatís FMLA leave, or even less than 50, but they have a good short?term disability plan. They're not thinking yet, "This is reasonable accommodation under ADA."
So my question is, what do you think employers should be doing to understand that when they're giving someone FMLA leave or they're on leave, that that is also an ADA accommodation and, therefore, starts that interactive process?
You guys in management how ?? because when I said this to someone, they're like "I don't want to. Let me just think FMLA. Maybe they'll come back less than 12 weeks. And then I don't have to deal with it."
I'm like "Well, okay."
All right. Let's start with Mr. Isler first. We'll go this way.
MR. ISLER: Oh, I get to go first. I wasn't prepared. I was prepared to respond to Brian.
MR. ISLER: No. Iíd be happy, actually. First of all, I agree with you that youíve got to view these issues as an ADA issue as well as an FMLA issue. We have to remind our clients of that all the time. And then sometimes you add in that third whammy as sort of Workers' Comp and then the fourth whammy of STD. And employers sort of get themselves all worked up. And frankly, there is a lot of perception out there, at least in the small employer community, that if it's FMLA, that it can't be ADA; that you can't sort of count them at the same time or that if they're on STD, that you can't count it as FMLA leave because you can only count one thing at a time. And so I do think that thereís work to be done in terms of communicating that.
But if I understand your question ?? and even if I don't, I'm going to answer this question. I think the question is, you know, where should the burden fall in terms of communicating? And I actually agree, Brian, that to some extent ?? don't defriend me, Ellen ?? that when the employee says, "I need to take this leave," theyíve begun the interactive process. I mean, theyíve gone and theyíve told you what the need is. And if they're out and you're not hearing from them and they're staying out and they're not communicating and you don't know whatís going on with them, you know; I think that the employer has a burden as part of that process to reach out to the employee. So my main point is at what level is that burden, how much of that burden. And I think once weíve shot out a letter and we don't hear back from the employee, you know, we can go ahead and proceed on that basis. And we can make decisions on that basis. We shouldn't have to go begging the employee, "Please communicate."
I have to tell you all anecdotally, employees stop communicating with their employers all the time. I don't know why. I don't know if they're afraid. I don't know if they don't think that they have to. They absolutely go radio silent. And people reach out to them. And we send them e?mails to their personal e?mail box. And they just absolutely make it impossible. And our clients want to pull their hair out and say, "What else do I have to do in order to get in touch with them?" It happens all the time.
MS. McLAUGHLIN: I do think some employers do not understand that an FMLA leave typically by its very nature and increasingly with the Amendments Act is also an ADA leave. And I think that would be very helpful to state in one form or another in the guidance.
With respect to this whole issue of, is it a best practice or required for the employer to alert the employee through a letter prior to termination of the fact that they can request an extension of leave; you know, the interpretive guidance I guess it is very clear that still, really, it's an "and knows the employee has a disability, knows there is reason to know the employee's experienced workplace problems because of the disability." You could argue that's being on leave. But then it's "and knows or has reason to know that the disability prevents the employee from requesting a reasonable accommodation." That's not what we're talking about here.
And in terms of the fact that the request for leave has triggered the interactive process, absolutely, but I don't think with respect to any other type of accommodation, there is the requirement on the employer's part to keep asking. Once the accommodation leave is granted or modified schedule is granted, the employer obligation has ceased. Again, we're not talking that it might not be a best practice thatís recommended, but I think it needs to be clear itís not required.
COMMISSIONER FELDBLUM: Okay. I'm sorry that the time is filled. Maybe just very quickly from each of the two of you?
MS. CENTER: Well, as I stated, I think it is required that the employer communicate effectively to the extent possible with the employee about their options toward the end of the leave. And I'm not addressing the radio silence situation, but the typical situations I see.
CHAIR BERRIEN: Thank you.
COMMISSIONER LIPNIC: Thank you Madam Chair.
This is a question sort of for all of you. You know, a lot of what weíve talked about are people who are coming back from extended leaves. And those were the situations in the Sears case and the Supervalu case. But one of the things that Iím interested in is ?? and I think you talked about this, Ellen, in some matter that you have currently of someone who needs leave on an intermittent basis to manage their medical condition. And you had mentioned, Mr. Isler, in your testimony, in your written testimony, that you thought one of the things that we could do as a Commission is to sort of break out the distinctions between short?term block absences, long?term block absences, and the ongoing unexpected and unplanned occasional but persistent absences, also known as intermittent leave. So I wonder just in terms of that kind of leave as an accommodation, if you could all sort of talk about that in terms of the needs of employees, what youíve seen in cases that youíve handled, and then sort of what you would recommend other than sort of what you have already recommended that we ought to make some distinctions in the guidance that we have but about how to deal with that situation.
And I'll start with you, Brian.
MR. EAST: Yes. Excuse me. I think explaining the differences is good. I think what again sort of simplifies it is that the analysis is the same. So we're still talking about the case?specific factors under undue hardship, but what those factors are may be different when we're talking about intermittent leave or something like that versus a long?term block leave. So it may be that it would be easier for the employer and not an undue hardship to give long?term block, but for case?specific reasons, they have a hard time doing something different.
So I think, again, the analysis ?? the legal analysis ?? is the same. I think the facts could be different. And I think giving examples, you know, I think the Commission more and more gives sort of real world examples and consecutively numbers them so that we can actually cite to them and stuff. I think thatís really useful for all of us to get a sense of what factors may be relevant. So thatís my general comment, that the analysis is the same but the factors could be different. I do think, you know, for my clients who have had seizure disorders, you know, if theyíre not fully controlled, some are. And we had sort of pre?ADA AAA problems. But now my clients by definition need intermittent leave because what happens is they have a seizure on occasion at work, and it could be once every three or four months, as in Eddie's example, or something like that.
And I think a lot of times it's very easy to work ?? well, I won't say "easy." It is not an undue hardship to work around. But I could imagine other situations where the nature of the request is pretty different from that. So I'll just make those general comments.
MS. CENTER: I would agree with Brian. And I would add that another factor that may come up with intermittent leave that doesn't come up with block leave is the need to combine the intermittent leave with other forms of reasonable accommodation. It could be telework; it could be ways for the employee to communicate with the employer their situation. I've done that with someone with a seizure disorder, how there was a chain of command where if she had to leave the work site because of a seizure, there was a set way for the other employees to fill in. And so there may be other accommodations that are combined.
MS. McLAUGHLIN: I do think it needs to definitely be separately addressed. And I think that the issue really in my opinion doesn't necessarily just jump to undue hardship. In terms of these unplanned absences, you know, the case law is very strong that regular predictable attendance is an essential function. And if you don't have it, you're not qualified. And you don't even get to the issue of undue hardship.
In terms of the guidances that we have to look at, the performance and conduct standards have much more language in it that would lead one to believe that itís pretty close to being an essential function. But yet, thereís that footnote 65 in the reasonable accommodation guidance that says something else. So I would encourage the Commission to revisit. And I would encourage them to understand that for an employer, if you're not there, youíre not getting the job done, you're not doing the essential functions. Attendance is, therefore, essential. And, I mean the issue comes up in that itís different than a block of leave. If somebody calls off unplanned, you can't replace them with a temp generally because you're understanding you know that two hours before the start of their shift maybe, and so that work just goes undone for that day. And if you have repeated absences like that, that work just gets left on the table, which is a huge problem for employers. And so most employers have taken account of that by having this no?fault attendance policy of, let's say, the ten occurrences. And it's a rolling 12?month period. So it's not lifetime. And when you have that on top of FMLA leave, where theyíve already had 12 weeks of intermittent leave plus their 10 occurrences, employers would say, "That's enough. That makes the person not qualified" or if we jump to undue hardship, "I can't do this anymore. I can't run my business like this."
MR. ISLER: I would just close briefly in saying this is truly, as I think you know, this is really the burden for employers. This is really the difficulty. We can manage someone who goes out for three months. We can figure a work?around, we can expect that, we can plan for that. For small employers to not know whoís showing up on any given day and then to have that be a repeated consistent problem, especially if it turns out they are Fridays in the summertime, is really a tremendous burden on the employer community.
I do think that question 20 in the 2008 guidance does a nice job of addressing that. And whatever guidance ?? I don't know if all of the Commissioners agree with it, but whatever guidance you end up putting together I would love to see this sort of language continue to be in there because it is truly not reasonable in my view. I agree with Ellen that itís really an essential function issue. Itís not reasonable on its face. Itís not reasonable in the normal course of cases to have someone who just shows up willy?nilly and on a ?? I'm not talking about once a month. I'm talking about someone whoís in/out, in/out, in/out. I think itís a tremendous burden.
So thank you.
COMMISSIONER LIPNIC: Thank you Madam Chair.
One other thing that I just wanted to add for the record is that when we talk about STD, we're talking about short?term disability.
COMMISSIONER LIPNIC: So, we might want to clarify that for the record.
MR. ISLER: I'm personally very grateful that you made that clarification, thank you.
CHAIR BERRIEN: Thank you. I wanted to just echo what some of my fellow colleagues have said and thank all of this panel, but particularly I think, Ms. Center, you have highlighted some issues that we don't always focus in on, which are how the laws that we enforce impact low?wage workers. And I think some of the issues that you raised were very helpful in directing our attention to that.
And, Mr. Isler, of course, the emphasis on some of the special challenges and concerns that small businesses may face in compliance and particularly how our guidance might help to address that has been helpful.
But I want to make sure in this last round ?? we didn't hear a lot about specifics about how we might be able to address some of the challenges that you cited, Ms. Center, in communicating with and to low?wage workers and their advocates about how these laws applied for their accommodation of disabilities.
MS. CENTER: Well, I would just emphasize again that many workers with disabilities are limited in English, are limited in literacy, are not sophisticated about procedures or legal rights and remedies. And when employers seek to communicate and to further the interactive process; they need to think about how to communicate effectively with their worker such that both the employer and the employee know what the options are and know whatís going to work to allow that employee to come back. And so I think it would be fact?specific, the best way to communicate, but it would be how to communicate effectively would be the question.
CHAIR BERRIEN: And in turn for the Commission, does that suggest, for example, that we make more of our information available on this subject, probably others as well, in multiple languages, languages of ??
MS. CENTER: Multiple languages or, for example, workers who are deaf and who are born deaf typically don't have English literacy. And so perhaps the communication needs to be by videophone. Lots of deaf workers have videophones in their homes. And thereís a free relay. Some workers need to have an oral conversation. So maybe have a meeting. I think that all of those forms of communication need to be considered for workers based on their particular circumstances.
CHAIR BERRIEN: Did any other member of the panel want to cite any specific things that we might do to make any guidance that we issue on this subject more user?friendly?
MR. ISLER: I'm a big fan of examples. I'll just say that. I think examples are very, very helpful because you read the text. And I know you guys labor over the text but examples ?? you find an example thatís sort of the spot on. Either way itís very, very helpful.
MS. McLAUGHLIN: And I would just say and use difficult examples. The example that was somewhere in the testimony today about the very highly specialized worker, thatís an easy one. We need examples of the tough issues ??
MR. ISLER: Right.
MS. McLAUGHLIN: ?? to give us guidance and parameters for what, frankly, are the questions we get every day.
MR. ISLER: Sometimes some of the examples really are no brainers. And you read that. And you sort of eyes glaze over because you're like "Yes, everybody gets that. Give us the harder ones." So thank you, Ellen. That's really spot on.
MR. EAST: On the example piece, I would also say that if it's examples intended to explain the obligation under the law, then using kind of best practice terminology is not that helpful. So oftentimes you'll see an example that says fact, fact, fact, fact, which to me means, okay, they have to provide this accommodation. And then the bottom line is the employer provided the accommodation or may be able to provide the accommodation. So we haven't gotten sort of the punchline, which is, you have to provide the accommodation there if that's the message you need to send. So I think thereís a different kind of style in writing best practice stuff than there is in writing what the law requires stuff.
CHAIR BERRIEN: I want to thank you all very much for those suggestions that we can take forward. And now, in closing, I just want to remind all of our members that we do have some tight travel schedules. So please honor the limited time that we have set aside for closing comments. And we'll begin with Commissioner Ishimaru.
COMMISSIONER ISHIMARU: Well thank you, Madam Chair. I want to thank you and Commissioner Lipnic again for organizing the hearing.
I want to thank the panels. It was very helpful. I think it points out to us that we really need to move quickly on trying to figure out how best to put out new guidance from here and whether that needs to be comprehensive. And I hope, frankly, that we can get something done by the end of the summer because this is a pressing issue. And I think the urgency comes through loud and clear from all sides that we need to get this addressed.
I walk away from this, though, trying to reconcile in my mind. I understand the needs of employers and respect that. And I know employers when I talk to them; they tell me consistently that they want to keep good employees, they want to get them back to work, they want to keep them in their jobs because of the cost of doing that. And Iím trying to square that truly held belief that I believe most employers just as a practical matter, as a logical matter, want to keep people on the job with the strict constructionist view of, I'm going to send the final letter and thatís my only obligation. And I understand that from a legal matter, and I understand why lawyers counsel, you know, what is required under the law, but Iím trying to reconcile that as a practical matter in my mind. And frankly, Iím having a difficult time doing it. So I hope that we can call on all of you during the course as we're thinking through what this guidance should look like and how to best do it. But I am certainly grateful for your contributions. Thanks very much.
CHAIR BERRIEN: Thank you.
COMMISSIONER BARKER: And I would just say I guess I don't have a problem reconciling that Stuart, because I think while employers want to ?? I mean, they're in it to produce a product or a service. So that at the end of the day, thereís enough money so everybody gets paid and fed. And we're talking about the bottom line is, it's about the economy and providing jobs. And theyíre not going to be able to provide jobs unless theyíre able to move forward without undue interruption. So as much as they may want to keep an employee, at some point, they have to say, "I'm losing money off of this. You know, I don't want to close my doors and we all go home. Let's move on." So while thereís a difficult thing, I don't have a problem reconciling the two. I don't think that you become a bad employer because you send that letter.
That said, what I would like to observe is, I really appreciate the fact that all four of you come from very different viewpoints and from the very important jobs that you perform. We're in agreement on so many of the issues, which I think is a really good thing, because what I think it says is that people on both sides, employer and employee, are trying very hard to get to the heart of the matter and do the right thing in the way that the law requires, period.
Thank you again for your contributions.
CHAIR BERRIEN: Thank you.
COMMISSIONER FELDBLUM: Thank you Madam Chair. I have three concluding points.
One, I hope whatever article the BNA writes about this, I hope whatever business groups, like SHRM, and Chamber or disability groups, like AAPD or Bazelon Center, sends out about this meeting; I hope it goes out far and wide about the things that everyone did agree on, so thereís no surprise, thereís no "gotcha" litigation, which doesn't help anyone.
Point number two, in the written statement, my opening statement that I submitted for the record, I noted that all four of you suggested that we put out one piece of guidance that deals with the hard questions. Now you guys did not come down at the same side on some of those hard questions. And that from my perspective is the work of our Commission to really think that through, take not only what youíve said here now but in continuing conversations to make sure that we get those hard questions resolved correctly, which leads me to my third point, which is what the Chair said when she opened the meeting, is we have a system in which people can put in information for the record. I hope that both business and disability groups will be sending us thoughts, ideas, perspectives on any of the hard questions that they heard here today or did not hear here today.
And while Iím not sure Iím as optimistic as in end of summer, although I love that as an aspirational goal, I think I can certainly assure you that there are many of us who want to work very hard on getting that done.
CHAIR BERRIEN: Thank you Commissioner.
COMMISSIONER LIPNIC: Thank you Madam Chair.
I just want to point out that Commissioner Feldblum has a beach house at Rehoboth. And sheíll be working from there to work on the guidance.
COMMISSIONER FELDBLUM: Telecommuting.
COMMISSIONER LIPNIC: Yes, telecommuting from Rehoboth.
I want to endorse the comments of my colleagues. I thank the Chair for having us put this meeting together. I want to thank my staff and the Chair's staff for all the work that they did in organizing this.
I think itís been a great discussion. I really appreciate the expertise of both panels on this topic. And not only do I hope that we will be able to come up with some better guidance, which it sounds like everyone seems to endorse that idea; but ultimately that we do find a way for both disabled people and people who have medical conditions find a way to keep them engaged in the workplace.
So thank you all for coming. And I really appreciate everything that you did and the time that all of you put into this. Thanks.
CHAIR BERRIEN: I believe my colleagues have really hit on many of the things I would have said. I do just want to again thank Commissioner Lipnic, though, for suggesting this topic. Itís obviously a very timely one. Itís one where everyone has been very engaged and to your staff as well as to Sharon Alexander from my staff and Adriana Bujita, who worked hard in preparation for this.
And weíve come full circle because earlier in the meeting, Commissioner Barker mentioned the appointment of Peggy Mastroianni as Legal Counsel. And the very essence of the work that she leads as Legal Counsel for the agency and has led for many years or has worked on for many years is exactly what weíve been talking about today, which is how does this Commission take the laws that weíre charged with enforcing and make them manageable, practical, and applicable to the day?to?day experiences of our entire stakeholder community in ways that help to ensure that we really honor the commitment to end employment discrimination. And your participation, both this panel and our morning panel, has immeasurably contributed to our work as we go forward in doing that.
So I thank you all again for that and thank you and thank Commissioner Barker for acknowledging the appointment of Peggy Mastroianni. And clearly her work is ?? her job is hard. And we know that we will be busy with this and other matters going forward.
Thank you all very much. If there is a motion, we can adjourn.
COMMISSIONER ISHIMARU: So moved.
COMMISSIONER FELDBLUM: Second.
CHAIR BERRIEN: All in favor?
(Whereupon, there was a chorus of "Ayes.")
CHAIR BERRIEN: This meeting is adjourned. Thank you.
(Whereupon, the foregoing matter was concluded at 12:46 p.m.)