While employers generally accept that they cannot apply a maximum leave period after which employees are automatically terminated, they continue to struggle with how much leave must be provided as a form of accommodation under the ADA.  There is little dispute that leave for an indefinite period where the employee has a long term chronic

supreme courtIn case your news and twitter accounts are down, and you otherwise have not heard the news…   President Trump has nominated Judge Gorsuch from the U.S. Court of Appeals for the Tenth Circuit to fill Justice Antonin Scalia’s vacant Supreme Court seat.  There are surely countless articles about his nomination hitting the airwaves even as I type this, but for employers who struggle with leave management issues, a quick review of the Hwang v. Kansas State University decision, authored by Judge Gorsuch, may provide employers with hope that leave management law could move in the right direction. 
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On August 25, 2016, the EEOC issued its Enforcement Guidance on Retaliation and Related Issues. In addition to outlining expanded definitions of “opposition” and “participation” activity with respect to retaliation claims, the EEOC also addressed section 503(b) of the ADA.  Section 503(b) makes it unlawful to “coerce, intimidate, threaten or interfere” with an individual who attempts to exercise ADA rights or one who assists or encourages others to do so.

What Makes ADA Interference Different

In its guidance, the EEOC notes the interference provisions of the ADA are broader than the statute’s anti-retaliation provisions. Specifically, actions that may not be materially adverse for a retaliation claim may suffice for an interference action.  Another distinguishing feature of an ADA interference claim, according to the agency, is that an individual pursuing relief need not be a qualified person with a disability.
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Since June 2011, when the EEOC suggested it might issue guidance on leave as a reasonable accommodation under the ADA, we have likened the wait to waiting for Godot. See here and here.  After nearly five years of reciting that “it didn’t come today, it might come tomorrow,” on May 9, 2016, the EEOC

Since 2009, the EEOC has sued numerous employers who have terminated employees pursuant to an inflexible leave policy, a policy that provides a defined amount of leave and results in an employee’s termination once the employee exhausts that leave.  The EEOC argues that such policies are unlawful because they do not allow for additional leave

Less than one month after the Tenth Circuit Court of Appeals held that an employer policy that limits the amount of leave time any employee may take was fair, lawful and protects disabled employees, an employer sued by the EEOC for having such a policy has agreed to pay $1.35 million and “undertake significant remedial

Add another multi-million dollar settlement notch to the EEOC’s “inflexible leave” belt. The EEOC announced that national trucking company Interstate Distributor Company will pay $4.85 million to resolve a nationwide class disability discrimination lawsuit the EEOC had brought against Interstate.

The lawsuit alleged that Interstate had a policy of terminating employees who needed more than