Meeting 1

The JAN staff respond to a broad range of inquiries related to disability employment issues, the Americans with Disabilities Act (ADA), and accommodation topics. In March, JAN published an Ask JAN! edition of our blog where we answered random questions about a variety of ADA topics. In this second issue of the Ask JAN! blog, we respond to questions about maternity leave and the ADA, if attendance is an essential job function, and whether a day shift position must be created as a reasonable accommodation. Responses to these questions are based on guidance provided by the Equal Employment Opportunity Commission (EEOC).

Hey JAN…An employee who has been with our organization for six months is due to have a baby in four months. This employee is expected to need about six to eight weeks of leave after the delivery of the baby, but she will not have that amount of leave accrued. She is not eligible for leave under the Family and Medical Leave Act (FMLA). Can the ADA apply when an employee requires time off for maternity-related reasons?

If the need for leave is strictly related to uncomplicated recovery from childbirth and bonding, and there is no pregnancy-related impairment resulting in a disability under the ADA, then the law will not generally apply. To be eligible to receive an accommodation under this federal law, an individual must have a disability. Pregnancy alone is not a disability under the ADA, and the limitations associated with recovery from uncomplicated childbirth will generally be transitory and minor, thus, will not ordinarily rise to the level of being considered a disability under the ADA. Ultimately, the ADA is not intended to be used as a means for providing maternity leave.

Employers may have to provide leave, in addition to that provided under its normal leave policy, as a reasonable accommodation under the ADA for an employee with a pregnancy-related impairment that is a disability. Many pregnancy-related impairments are disabilities that an employer may have to accommodate (e.g., disorders of the uterus or cervix, gestational diabetes, or preeclampsia). For information about the applicability of the ADA in these circumstances, see the Equal Employment Opportunity Commission (EEOC) document Enforcement Guidance on Pregnancy Discrimination and Related Issues.

Under another federal law, the Pregnancy Discrimination Act (PDA), covered employers are required to treat an employee who is temporarily unable to perform the functions of her job because of pregnancy, or a related medical condition, in the same manner it treats other employees similar in their ability or inability to work. According to the EEOC, under the PDA, an employer must allow women with limitations resulting from pregnancy to take leave on the same terms and conditions as others who are similar in their ability or inability to work. This means that, employees who are pregnant (or who have a pregnancy-related medical condition) must be provided with access to leave on the same basis as all other similarly situated employees. If a request for leave falls within the employer's existing leave policy (e.g., access to accrued paid leave or unpaid leave), it should treat an employee requesting leave due to pregnancy the same as an employee who requests leave for reasons unrelated to pregnancy. For more information, see question 12 in Questions and Answers About the EEOC's Enforcement Guidance on Pregnancy Discrimination and Related Issues.

In the United States, there is currently no federal mandate for employers to provide maternity leave -- paid or unpaid. Some employees can access unpaid leave under the federal FMLA, but for those who cannot, the absence of a federal maternity leave mandate creates a challenging situation. Several states have enacted laws that require covered employers (e.g., some with as few as three employees) to provide leave to qualified workers during pregnancy, childbirth, or adoption. Some of these laws mirror the FMLA and provide leave rights with job protections, and others provide wage replacement benefits during a pregnancy-related leave of absence. The National Conference of State Legislatures offers a list of state family medical leave laws. To determine if state law applies, contact your state labor office or state human rights commission.

Hey JAN…As an accommodation under the ADA, an employee has permission to use intermittent leave when flare-ups of his disability occur without being penalized for calling-off within twenty-four hours of his shift. The employee’s healthcare provider documented that one to two absences would be needed per month, lasting two to three days at a time. However, the employee’s attendance has been sporadic and more frequent than indicated by the healthcare provider. We need to be able to rely on this employee to come to work. Is attendance considered an essential job function?

Whether attendance is an essential function has been a subject of debate for many years. The EEOC does not consider attendance to be an essential function because it is not a duty to be performed. However, a majority of courts across the nation have concluded that “regular attendance” is essential for many jobs and can be considered an essential function. Reliable presence and predictable performance of job duties have also been argued in the courts to be considered essential. Overall, the general consensus among EEOC and the courts is that employers need not accept what would be considered to be “irregular, unreliable attendance.” For more information, see question 20 in Applying Performance and Conduct Standards to Employees with Disabilities.

Of course, some attendance policies are generous, while others are quite rigid, so it’s important to be conscious of policy and practice within your organization. Employers should be uniform and consistent in applying attendance policies to all employees. Attendance issues should be addressed early, before performance suffers. This is especially important when an employer has good reason to believe that an employee’s attendance is affected by a known medical impairment. In this type of situation, it may be necessary to engage in an interactive process to determine if an accommodation could enable the employee to meet attendance requirements. Employers are not expected to completely disregard time and attendance requirements, but it may be necessary to modify an attendance policy and/or a schedule, or to allow leave as an accommodation, if the ADA applies and when reasonable.

Employers have the right to determine the degree of attendance flexibility that is feasible, what is reasonable given the requirements of the employee's position, and the impact of the accommodation on business operations. In evaluating the importance of reliable attendance, it is necessary to assess whether or not the employee is able to perform the essential duties of the position and meet performance standards. Also, the reasonableness of modifying an attendance policy and allowing the use of leave may be impacted by the predictability of the employee’s need for leave. An employee may be asked to provide reasonable information from a healthcare provider that confirms that intermittent leave is needed due to a medical impairment. It is useful to ask for information about the anticipated frequency and duration of the need for leave. JAN offers a sample form for gathering information about the need for leave as an accommodation under the ADA.

Of course, employers should also check into the requirements of the FMLA, and/or state and local laws that may apply when employees must be absent from work for medical reasons.

Hey JAN…An employee who has diabetes has requested to work day shift as an accommodation. The employee was originally hired to work nights. Are we expected to create a day shift position as an accommodation under the ADA if a day shift position doesn’t exist?

Sometimes employees are unable to work a specific schedule or shift (e.g., night or rotating shift, overtime, on-call, etc.), or a specified number of hours due to a medical reason. Under the ADA, it may be necessary to consider modifying a schedule as an accommodation for an employee with a disability, provided there is a disability-related need for the schedule change, it is reasonable to make the change, and it does not create an undue hardship. When an employee is not necessarily hired to work a specific shift, a shift change can be viewed as a schedule modification.

When an employee is hired to work a specific shift (e.g., security guard hired to work the overnight shift), requesting a different shift may actually be a request to be reassigned to a different position as an accommodation. We know that, according to the EEOC, employers are not required create a new position as a form of accommodation under the ADA. This means that employers are not expected to create a new day shift position as an accommodation if one does not already exist, or to bump another employee from a day shift position in order to create a vacancy. When a vacant day shift position is available, and the employee with the disability is qualified for the position, then reassignment is to be explored as a form of accommodation under the ADA. For detailed information about reassignment as a form of accommodation under the ADA, see JAN’s Accommodation and Compliance: Reassignment.

That’s all for this second issue of the Ask JAN! blog. If you would like to ask the JAN staff a specific disability-employment, ADA, or accommodation question, contact our service today.