Watch for a continued focus on medical leaves at the EEOC since President Obama’s recent recess appointments have extensive backgrounds on leave issues. The EEOC has been challenging employers’ “inflexible” leave policies which, the EEOC alleges, do not appropriately consider the ADA’s reasonable accommodation requirements.
Newly-sworn-in EEOC Commissioner Chai Feldblum, a former Georgetown University Law Professor has been in the vanguard in drafting and negotiating the Americans with Disabilities Act and the 2009 Americans with Disabilities Act Amendments Act. A significant aspect of the ADA requires employers to provide disabled employees a reasonable accommodation, which could include providing leaves of absence. While at Georgetown, Feldblum was the Co-Director of Workplace Flexibility 2010 , a public policy initiative which advocates for flexible work arrangements, including time off.
Another recently sworn-in EEOC Commissioner is former U.S. Assistant Secretary of Labor Victoria Lipnic, who was Assistant Secretary of Labor for Employment Standards at the DOL from 2002 to 2009. During her tenure, the DOL proposed revised FMLA regulations, evaluated comments on that proposal and issued final revised regulations, which went into effect in January 2009. The FMLA entitles eligible employees to time off from work and these regulations define the parameters of that entitlement.
The appointments of Ms. Feldblum and Ms. Lipnic, with their combined “leave” backgrounds, naturally create anticipation that they will provide insight into the sticky issues that lie at the intersection of the ADA and FMLA. While the EEOC’s guidance on the interaction of these two laws issued in 2000 still has relevance, the ADA Amendments Act and revised FMLA regulations have created additional “interaction” challenges for employers. We look forward to their insight.