In the 1990s, the ADA caused employers to invest time and money into crafting job descriptions that described the essential functions of the job. We began to use terms like “reasonable accommodation.” We understood that the law required that we engage in an interactive process with the employee to determine whether his limitations arising from his disability could be reasonably accommodated to allow him to work. We understood that we had to provide a reasonable accommodation unless it caused an undue hardship.

We also thought we understood what would be considered a disability and what would not. That was until Congress passed the ADA Amendments Act which we discussed in the October 2008 Employer’s Legal Resource.

Since that time, the Equal Employment Opportunity Commission (EEOC) has spent considerable time and energy on this law. The EEOC is the administrative agency charged with investigating complaints of discrimination of various laws, including the ADA. The EEOC can also bring a lawsuit on behalf of a person or persons aggrieved by violations of the ADA.

Indeed, the EEOC is doing just that.

Inflexible Medical Leave Policy. On August 27, the EEOC sued United Parcel Service, Inc. (UPS) claiming that its medical leave policy violates the ADA. According to the EEOC’s lawsuit, employee Trudi Momsen took a 12-month leave of absence when she began to experience symptoms from multiple sclerosis. At the conclusion of that leave, Ms. Momsen returned to work. However, shortly thereafter, she suffered negative side effects linked to her medication requiring her to be absent again. UPS discharged Ms. Momsen for violating its 12-month leave policy. According to the EEOC, Ms. Momsen could have returned to work after just two additional weeks of leave.

It is the EEOC’s position that an inflexible policy such as this (even though it allowed leave far in excess of that required by law) violates the ADA because it thwarts the interactive process between the employer and the employee.

Policy on Reporting Use of Prescription Drugs. On August 31, the EEOC filed a lawsuit against Product Fabricators, Inc., a sheet metal manufacturer. The EEOC alleges that the employer’s policy of requiring employees to disclose their use of prescription drugs violates the ADA. The EEOC is seeking to enjoin the employer from enforcing this policy and is seeking to have a former employee reinstated who was fired for violating the policy.

It is the EEOC’s position that this type of policy is not job-related in that it applies to every position and every prescription. The EEOC also maintains that requiring employees to disclose their use of prescriptions requires them (potentially) to disclose information about disabilities or impairments which constitutes an additional violation of the ADA.

New Regulations. In addition to filing lawsuits, the EEOC has been working on updating the ADA regulations in light of the ADA Amendments Act. On September 23, the EEOC published a notice with its regulations for public comment. You can find the proposed regulations here. You can submit comments about the regulations on or before November 23, 2009. At some point after that (and we are never exactly sure when), the final regulations will be published. At that time, you can bet we will be addressing them in the Employer’s Legal Resource.

Until then, proceed cautiously when dealing with medical issues and your employees. The landscape is changing. You should presume more persons will be covered by the ADA and more interactive process will be required before taking adverse employment actions against those persons or before refusing requests for accommodations.

By Kristen L. Brightmire, kbrightmire@dsda.com

Note: Ms. Brightmire will be speaking in more detail on the proposed regulations at TEEOCA’s October 7 meeting. Details below.