Some people get excited about backstage passes to a concert. At Reed Group, the opportunity to meet and discuss leave issues with EEOC commissioners gets our engines running. This week, I had the good fortune to meet with Commissioners Feldblum and Lipnic of the Equal Employment Opportunity Commission (EEOC), as part of an informal discussion with attorney members of the Association of Corporate Counsel’s Employment and Labor Law Committee (ACC ELLC). It was a fantastic opportunity for in-house employment lawyers to meet with the commissioners to discuss some of the EEOC’s initiatives, employer pain points, and to gain Commissioners Feldblum and Lipnic’s perspectives on many of the laws the EEOC enforces. We were able to raise issues important to our clients, and to gain greater clarity and insight to guide them to make smart, compliant decisions for their businesses. The following is a synopsis of some of the more relevant and thought-provoking topics that were discussed.
Leave as an Accommodation under the Americans with Disabilities Act (ADA)
Leave as an ADA accommodation remains a hot topic in leave law, so we will start there.
FMLA v. ADA
In discussing the FMLA versus ADA leave, Commissioner Feldblum emphasized that the two laws afford two separate rights that may apply to a single situation or absence. They reminded the group that the analysis of an employee’s absence doesn’t end with FMLA, even recommending that employers convey information on both FMLA and ADA to the employee at the outset of leave so that it is clear that the interactive process begins at the start of an FMLA request.
Reasonableness v. Undue Hardship
In describing some of the confusion employers and employees have trying to differentiate FMLA rights and responsibilities from ADA rights and responsibilities, Commissioner Feldblum emphasized that employers often erroneously focus on whether leave is a “reasonable” accommodation. The EEOC tends to find that it is. Instead, the commissioners recommended that employers will have better luck if they focus on the undue hardship that leave as an accommodation may create. The commissioners even suggested that in many instances, employers permit an employee to remain on leave for too long, thereby making it more difficult to explain after a lengthy leave why the undue hardship suddenly arose. Commissioner Lipnic chimed in, stating that what truly makes an undue hardship is somewhat of an untested proposition. For more information on leave as an accommodation and undue hardship, see Reed Group’s whitepaper on leave as an accommodation.
ADA enforcement priorities
When asked what the EEOC’s ADA enforcement priorities were, Commissioner Feldblum quickly exclaimed “Leave!” The commissioners also stated that telework, flexible scheduling, and reassignment to a vacant position were additional priorities when it comes to enforcing ADA accommodations in the workplace. This highlights the employer’s duty to follow the ADA’s interactive process, assessing the employees’ needs in the context of their role within the company, and determining whether and how they can be accommodated.
The EEOC will also continue to push employers to separate out truly essential job functions, which the employer need not remove in order to accommodate an employee. Simply put, “essential functions” are the key job duties, the critical elements that if removed, would fundamentally change the job. Click here for an extensive discussion by the EEOC regarding essential job functions.
EEO-1 and Pay Data Collection
The group spent a considerable amount of time discussing the EEOC’s notice of proposed changes to the EEO-1 form regarding collecting pay data from federal contractors. The discussion ranged from understanding the utility and purpose of collecting the pay data, the additional time and expense it will take employers to comply, to which data and wage numbers would best meet the EEOC’s purpose and cause the least amount of employer time and expense.
EEOC’s Policy Regarding Sharing Employer Position Statements
We also discussed EEOC’s announcement concerning releasing respondent/employer position statements during an investigation into a charge of discrimination. The Commissioners explained the EEOC’s focus on improving the quality of investigations, which includes releasing respondent employer position statements to the charging employee with the expectation that the charging employee respond.
The commissioners provided tips on responding to charges of discrimination, such as indicating in the position statement that the employer needs more information when a charge of discrimination contains little to no facts. Commissioner Feldblum also emphasized the EEOC’s preference for factual position statements without a recitation of the law.
Fantastic Opportunity to hear from the EEOC Directly
We discussed several other topics with the commissioners during our meeting, including mediation and confidentiality of workplace investigations. Commissioners Lipnic and Feldblum were extremely gracious to host ACC’s ELLC members. The commissioners were informative, interactive, inquisitive, and open to feedback. I found this meeting illuminating; it was an incredible opportunity and I was fortunate to hear first-hand the Commissioner’s thoughts on issues that impact Reed Group and our clients.