Tag: undue hardship

May 17, 2019

Accommodating NY Employees with Disabilities (Webinar Recap)

On May 16, 2019, I presented a complimentary webinar called “Accommodating NY Employees with Disabilities”. For those who couldn’t attend the live webinar, I’m happy to make it available for you to watch at your convenience.

In the webinar, I discuss:

Qualifying Disabilities
“Undue Hardships”
“Interactive Process”
Leave as an Accommodation
and More!

Under federal, state, and local laws, many New York employers (all with at least 4 employees) have obligations to accommodate their employees’ disabilities. However, the requirements are not always straightforward. Often, employers must communicate with an employee to determine whether there are any reasonable accommodations that pose an undue hardship. This webinar identifies the underlying legal parameters to help you handle the process more effectively.

Don’t have time to watch the whole webinar right now? Click here to download the slides from the webinar.

Why You Should Watch “Accommodating NY Employees with Disabilities”

The Americans with Disabilities Act and New York Human Rights Law protect employees with disabilities. But accommodating NY employees with disabilities can be more difficult than it seems. It’s important to understand the requirements and limits of these laws. It’s also important to follow them carefully when working with individual employees regarding their medical conditions and their ability to perform the essential functions of their jobs.

In the webinar, we walk through the process of addressing an employee’s accommodation request and note some of the common mistakes. For example, an employee with a disability should not automatically lose their job when they’ve used up their 12 weeks of FMLA leave. Additional leave can be a reasonable accommodation. But whether it creates an undue hardship may depend on many factors.

Plus, do you know when you can and should get medical documentation about an employee’s disability before resolving an accommodation request? And, did you know, employees in New York City now must receive a written determination regarding accommodations?

This webinar will get you up to speed on these developments and best practices in this important area.

Don’t Miss My Future Webinars!

Click here to sign up for my email newsletter to be among the first to know when registration is open for upcoming programs!

April 3, 2018

Is Time Off a Reasonable Accommodation?

The Americans with Disabilities Act (ADA) requires employees to provide reasonable accommodations to qualified employees with disabilities. These accommodations can take various forms, including structural modifications to the workplace and scheduling adjustments. The U.S. Equal Employment Opportunity Commission (EEOC) also considers time off from work to be a reasonable accommodation in many situations.

Time Off Under the ADA

Let’s start with a relatively unsurprising conclusion under disabilities discrimination laws. Employers cannot provide employees with disabilities less time off than other similarly situated employees. For example, an employer that allows employees to take vacation time for any purpose cannot exclude an employee with a disability from using vacation time to recuperate from a medical procedure.

Few employers would object to that principle. But many do not consider the possibility that an employee with a disability may be entitled to take more time off than company policies normally allow.

Leave as a Reasonable Accommodation

The EEOC’s ADA regulations define reasonable accommodation to mean modifications or adjustments:

to a job application process that enable a qualified applicant with a disability to be considered for the position the applicant desires;
to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable an individual with a disability who is qualified to perform the essential functions of that position; or
that enable an employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by the employer’s other similarly situated employees without disabilities.

EEOC guidance states that: “The purpose of the ADA’s reasonable accommodation obligation is to require employers to change the way things are customarily done to enable employees with disabilities to work. Leave as a reasonable accommodation is consistent with this purpose when it enables an employee to return to work following the period of leave.”

As with other forms of accommodations, additional leave or time off must be reasonable and can be denied if it imposes an undue hardship. Often these issues raise questions of how much leave is reasonable?

The EEOC will not answer this question directly. There is no bright line amount of time off that an employee with a disability must receive under the ADA. Instead, the EEOC has historically taken the position that employers must evaluate each situation individually.

Factors that play into the analysis of reasonableness include

the reason(s) the employee needs leave;
whether the leave will be consecutive (all at once) or intermittent (periodic); and
when the need for leave will end.

Additional factors toward whether time off will impose an undue hardship include

size and skills of the remaining workforce;
ability to temporarily replace the employee; and
whether the time off is foreseeable or unpredictable.

Maximum Leave Policies

Trying to avoid the complicated analysis suggested above, some employers seek to enforce a maximum leave policy. Most commonly, these are for either 6 or 12 months. But some employers use longer or shorter periods.

Under these policies, employers would like to say that no matter the reason for the extended leave, any employee out longer than X months will be removed from the payroll, etc. The EEOC consistently rejects these policies. Sometimes courts allow them, however.

Still, even the risk of EEOC investigation makes it dangerous to try to apply a strict maximum leave policy. Accordingly, it is usually better to build some discretion into the policy. For example, while referencing a general maximum time period, the policy would advise employees that a brief extension of the leave may be available if medically necessary. You could then determine what a “brief extension” means on a case-by-case basis, providing the flexibility the EEOC seeks.

Don’t Let the FMLA Fool You

The federal Family and Medical Leave Act (FMLA) requires employers with 50+ employees to allow eligible employees to take up to 12 weeks off. Qualifying circumstances for FMLA leave include the employee’s own serious health condition.

Employees with serious health conditions often also qualify as employees with a disability under the ADA. Thus, they may be eligible for leave as a reasonable accommodation. And more than 12 weeks off might be reasonable under the circumstances.

Accordingly, employers should almost never automatically terminate an employee’s employment merely because they don’t return to work immediately after 12 weeks of FMLA leave. (In addition to the medical leave scenario, other forms of FMLA leave may also touch on other discrimination protections, such as sex/pregnancy discrimination. Plus, retaliation for taking FMLA leave is itself unlawful.)

Time Off as an Accommodation Can Be Unpaid

Allowing an employee time off as a reasonable accommodation does not mean employers must provide paid leave. As mentioned, if the employee is eligible to use vacation or other paid leave for a portion of the time off, then they should not be denied the opportunity to do so based on their disability. But, if they have exhausted any available paid time (or have none in the first place), then, like the FMLA, the ADA does not entitle anyone to receive paid leave.

Review Your Leave Policies

It is difficult to propose one-size-fits-all advice on this issue, but all employers should seek to avoid facially unlawful leave policies. At a minimum, this includes any wording that directly penalizes qualified employees with disabilities. But most employers should go further and build in flexibility to account for reasonable accommodations, as suggested above. This includes, by the way, so-called “no-fault” attendance policies. (But that will have to be a topic for another day!)

To get more helpful updates and reminders on employment law topics, sign up for my email newsletter. It doesn’t cost anything, and, who knows, it might save your organization a lot of time and money!

March 13, 2018

Accommodating Religious Beliefs in the Workplace

Most U.S. employers are legally prohibited from discriminating in employment based on individuals’ religious beliefs. Unlike most other employment discrimination protections, this aspect of employment discrimination law further requires employers to accommodate employees’ sincerely held religious beliefs.

Applicable Laws

Title VII of the Civil Rights Act of 1964 is a federal law that prohibits employment discrimination because of race, color, religion, sex, or national origin. Under Title VII, employers generally may not take adverse employment action against applicants or employees based on these characteristics. The law disallows both intentional and unintentional discrimination, but does not require affirmative action. However, it does compel employers to provide reasonable accommodations based on employees’ religious beliefs.

Title VII does not apply to religious organizations regarding the employment of individuals of a particular religion. Courts have limited this exception only to organizations whose “purpose and character are primarily religious.” Even where this exemption applies, it only affects hiring and firing decisions. Once a religious organization hires employees of different religions, they cannot discriminate against them regarding pay, benefits, and other similar conditions of employment.

Title VII only applies to employees with at least 15 employees. Many states have laws encompassing religious discrimination and accommodations that apply to smaller employers. For example, the New York State Human Rights Law applies to employees with as few as four employees.

This article focuses on Title VII’s religious accommodations requirements. Similar state laws often have comparable rules. But some will vary in ways that may be relevant to any particular situation.

Sincerely Held Religious Beliefs

Title VII defines religion to include “all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.”

A religion does not have to be well-recognized or observed by many people to qualify an employee for Title VII protection. EEOC compliance guidance states that “religion” includes “religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others.” Religious beliefs can even include non-theistic beliefs.

No single rule determines whether an individual sincerely holds a religious belief. Some factors that might undermine asserted sincerity include whether the:

employee has behaved markedly inconsistent with the professed belief;
requested accommodation sought is a particularly desirable benefit that is likely to be sought for secular reasons;
timing of the request is suspect; and
employer otherwise has reason to believe the accommodation is not sought for religious reasons.

The requirement that a religious belief be “sincerely held” only applies regarding religious accommodations.

Religious Accommodations

Accommodations may include any adjustment to the work environment that will allow the employee to comply with their religious beliefs. Requests often relate to work schedules, dress and grooming rules, or religious expression or practice while at work.

The employee must initiate a request for accommodation by notifying the employer of the need for adjustment of work conditions due to a conflict with their religious beliefs. The employee must also explain the religious belief to the employer. The employer may seek additional information. But it cannot go so far as to discriminate against the employee by overly burdening them based on the request.

As with requests for accommodations based on disabilities, employees are only entitled to “reasonable accommodations” that do not impose “undue hardship” on their employer.

To show undue hardship in this context, the employer must identify more than “de minimis” costs of providing the accommodation. The EEOC’s website suggests: “An accommodation may cause undue hardship if it is costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work.”

Both reasonableness and undue hardship are measured on a case-by-case basis.

Handling Religious Accommodation Requests

Employers (through their managers) must be conscientious upon receiving a request for a change in work conditions related to religious beliefs. Ideally, there should be a procedure in place for receiving and processing these requests. Any sign of hostility toward a request may alone risk a claim of harassment or discrimination, even if no accommodation is due.

At the same time, employers need not automatically grant every request by an employee tied to a religious belief. Some may be unreasonable. Others may not be premised on a sincerely held religious belief. Still others may create an undue hardship. But all requests should be handled carefully so these criteria can be considered and weighed properly.