- The Defender Association of Philadelphia violated federal law when it failed to provide leave as a reasonable accommodation for one of its former attorneys who developed major depressive disorder and post-traumatic stress disorder after providing legal defense for juveniles charged with sex-based criminal offenses, the U.S. Equal Employment Opportunity Commission (EEOC) alleged in a court filing (Equal Employment Opportunity Commission v. Defender Association of Philadelphia, No. 19-cv-01803 (E.D. Penn. April 26, 2019)).
- Megan Perez began seeing a therapist and received her diagnosis after she spent more than two years working within her organization's Juvenile Special Cases section as a Sexually Violent Predator specialist. Perez took Family and Medical Leave Act leave in July 2017 and, when her allotted leave neared exhaustion, she met with her supervisors, who agreed Perez could return to work in January 2018 and "transfer to a unit not involving sex-based criminal offenses" — her therapist's recommendation, the complaint said. Perez received long-term disability benefits in October 2017, when her FMLA expired. The next month, HR terminated her employment saying her being on disability benefits indicated she couldn't work, which meant the organization could no longer cover her malpractice insurance. Perez said she made plans to return in January 2018 and sent HR a copy of the memo from her therapist containing her January 2018 return date, but HR said it interpreted the therapist's instructions as not containing a definitive return date.
- Perez has asked for back pay with interest, reinstatement or front pay and other damages in addition as well as an injunction forbidding the defendant from refusing to reasonably accommodate others with disabilities.
An employee with a disability may require leave as a reasonable accommodation, and the ADA requires that employers make exceptions to their leave policies if doing so provides a reasonable accommodation, according to EEOC. An employee who needs leave because of his or her disability is entitled to such leave under the ADA if there is no other effective accommodation and the leave does not cause the employer an undue hardship, EEOC enforcement guidance says. But employers don't have to provide paid leave beyond that which is already provided to similar employees, the guidance notes.
When both the ADA and the FMLA covers an employee's leave, employers should pinpoint the worker's rights under each law and then consider whether the statutes overlap, EEOC recommended. It elaborates on that circumstance with an example: an employee with a disability may need 13 weeks of leave for a treatment related to the disability. Under the FMLA, the employee is eligible for 12 weeks of leave, which means the leave requires both FMLA leave and a reasonable accommodation. While the employer can deny the 13th week under the FMLA, EEOC says, because the employee is also coved by the ADA, the employer cannot deny the 13th week unless it can prove undue hardship.
It's worth noting that employees don't have to provide an exact return date for leave to be considered reasonable. Courts and the EEOC have maintained that "January 2018," as in the instant case, or "sometime during the end of January," for example, can be a definitive end date when it comes to ADA leave.
The ADA "specifically lists 'reassignment to a vacant position' as a form of reasonable accommodation," EEOC says in the guidance. Perez alleged in her complaint that she had asked for a transfer to a unit not involving sex-based criminal offenses and received permission to remain the juvenile unit but not the JSCS. Her complaint also says that the defendant had numerous vacant attorney positions and that she could perform the functions of those jobs except for defending those accused of sex-based criminal offenses.
Though the fact-specific details of Perez's complaint are yet to be reviewed by a judge, "this type of reasonable accommodation must be provided to an employee who, because of a disability, can no longer perform the essential functions of his/her current position, with or without reasonable accommodation, unless the employer can show that it would be an undue hardship," according to EEOC. If there is no vacant equivalent position, then the employer must reassign the employee to a vacant lower level position.