ADAAA final regulations: frequently asked questions

Lexology.com
Baker & Daniels LLP
Susan W. Kline
USA
April 27 2011

The firm recently conducted a webinar on the new ADA Amendments Act (ADAAA) final regulations, titled "The ADAAA Final Regulations: Developing Your Rapid Response Plan." Following are frequently asked questions raised by webinar participants, related to the final ADAAA regulations.

QUESTION: How will the amended ADA affect the enforcement of attendance policies? How do you interpret FMLA versus ADA? If we've made an accommodation for an employee to be off work for a certain time frame and when they are expected to return to work they cannot, how long do we have to continue to accommodate the employee? If an employee has excessive absenteeism due to medical condition, and have used all their FMLA time, can we terminate for absenteeism?

ANSWER: A qualified employee with a disability may be entitled under the ADA to leave with job protection beyond what the FMLA requires. The EEOC has taken the position that "no fault" policies that provide for automatic termination after a specified amount of time off work are inconsistent with the "individualized analysis" requirement of the ADA, even if the length of time to automatic termination is very generous (as much as a year with pay, in one situation challenged by the EEOC).

Accordingly, to avoid risk of an ADA challenge, employers should allow employees who have exhausted FMLA leave but need additional time off work due to a condition that may qualify as a disability the opportunity to request additional leave as a reasonable accommodation. In evaluating whether additional leave is reasonable, courts have looked to factors such as how much more time the employee likely needs; the nature of the job and organization; whether the employee is expected to be able to perform all essential job functions with or without reasonable accommodation upon the return to work; whether the expected return date is reliable or uncertain (which may be evidenced by a pattern of previous extensions); and whether the employee is likely to have ongoing unplanned absences.

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