Webinar recap: Navigating ADA leave accommodations

Navigating compliance for leave accommodations across the Americans with Disabilities Act (ADA) and the Family Medical Leave Act (FMLA) is complicated for employers and employees alike. Each employee’s needs and what you may be legally required to provide (or not) can vary drastically. However, using decision frameworks and a leave management system like Cocoon can help you evaluate each situation thoroughly and fairly. 

That’s why our co-founding Legal Counsel, Frank Alvarez, took some time on a recent webinar to give People teams like yours insights into leave accommodation considerations, a decision framework, and a demo of how this works in Cocoon. Follow along with our recap blog here, or watch the webinar here.

Before jumping in, please remember that Cocoon is not a law firm. No statement or information shared by Cocoon or its employees, including its internal legal counsel, is legal advice and is not intended to be received by you as legal advice. Cocoon and its attorneys do not have an attorney/client relationship with any webinar participants or their companies. Please consult legal counsel to discuss how the matters discussed and Cocoon’s software products relate to your company’s individual policies and circumstances.

Some background on Frank Alvarez and the ADA

Frank Alvarez has over 35 years of experience in the leave and disability space, serving as a Principal at Jackson Lewis P.C. (a leading national workplace law firm), where he founded and led the firm’s Disability, Leave, and Health Management Practice. Nowadays, he’s a “leave tech evangelist” who firmly believes in the vision of leave management software to automate leave and compliance so People teams can focus on the human decisions. We think Frank was destined to navigate leave laws as he took his bar exam the same day the ADA was passed!

“The ADA is critically important, a landmark piece of legislation… but it’s a concept law. ADA law and regulations don’t even mention leave as a form of accommodation. It’s further complicated by the fact that the ADA was enacted three years before the FMLA, by different administrations, and they were never coordinated by Congress. So now it’s an uncoordinated patchwork of protections that can be very painful for employers to navigate.”

Being able to operationalize ADA by tracking eligibility and usage, while also surfacing the accommodation question at the right time is critical to staying compliant and getting it right.

A framework for initiating the leave accommodation conversation

Frank emphasizes that first, employers first need to understand when leave accommodations may come up, and offers an “order of operations” framework to help them do so to consider leave entitlements, leave commitments, and leave accommodations:

Categories of leave accommodations

If after moving through the order of operations you realize that accommodations will need to be made, Frank divides them into two categories:

1. “Front-end”—An employee isn’t eligible for entitlements or policies and they need a leave.
2. “Back-end”—An employee has exhausted all their entitlements and commitments and needs more.

Being able to operationalize ADA by tracking eligibility and usage, while also surfacing the accommodation question at the right time is critical to staying compliant and getting it right. This is hard to do manually—especially if you have a large, distributed workforce forcing you to stay on top of different local laws.

What are “reasonable” accommodations?

Understanding what counts as “reasonable” is also highly dependent on the circumstances involving the leave. Employers must evaluate each ADA leave accommodation request on a case-by-case basis—and it’s hard stuff! Though ADA law and regulations do not mention leave as a form of reasonable accommodation, in many places, case law has established this.

Another important consideration is whether the leave being sought is for a continuous or intermittent period for a definite or indefinite duration. Continuous leaves with a defined duration tend to be easier to assess, as start and end dates are clear. Intermittent leaves with an indefinite duration might be demonstrably unreasonable for your business operations, other employees, or to your customers. The process of asking and answering these questions (aka “the interactive process”) is as important as the final results! 

The interactive process

The interactive process assumes that employers and employees will engage directly in communications that explore or brainstorm accommodations, and that this process is documented. Many jurisdictions make this process an independent element of compliance in disability discrimination laws. The court will closely examine who is responsible for any breakdown in the interactive process and consider this in assigning liability. This is where a leave management system can be a huge benefit as it will document and operationalize this process for all parties.

Establishing “undue hardship” and non-leave accommodations

When evaluating leave accommodations, employers need to consider where they might encounter difficulties in accommodating the request, which can lead to its denial or to a negotiation with the employee about the terms of the leave or how non-leave accommodations may be layered in.

The ADA defines an undue hardship as a significant difficulty or expense, or a standard that’s hard to meet given the resources the company has. The Equal Employment Opportunity Commission—who enforces the ADA and Pregnant Workers Fairness Act (PWFA)—takes the position that all leave is reasonable unless it poses undue hardship. 

Demonstrating financial hardship can be difficult as it requires an employer to open its books to the court and demonstrate its financial situation. Operational hardships are demonstrated by an employer showing the impact the leave could have on the business, other employees, workloads and schedules, and/or to customers and the service you provide to them.

The ADA and PWFA acknowledge that both employers and employees likely want to keep jobs intact, keeping leave as a last resort. Discussing non-leave accommodations can be a great way to find the right balance, including a modified work schedule, ergonomic workstations, or remote/hybrid work arrangements. 

How Cocoon can help everyone navigate leave accommodations

While we highly recommend watching our demo to see what leave accommodation requests and approval processes look like in Cocoon, the critical pieces we handle that incorporate the frameworks and guidelines Frank identified include:

• Baking in federal and local laws along with your company policy to make calculating eligibility clear and simple.
• Asking screening questions to help an employer understand the duration, intermittency, and what non-leave accommodations they might consider.
• Giving the employers the ability to approve, deny, or request more information—and document this entire process—from Cocoon directly.
• Keeping a record of these interactions to demonstrate “the interactive process.”

Cocoon is a firm advocate of using software to do the things software does well, like automating aspects of compliance, pay, and planning—and in doing so, giving employers the time and information they need to use their best judgment for each case. Leave accommodation decisions are not binary, which is why we strive to help each employer and employee understand the laws, questions, and considerations that go into each one, so everyone can arrive at the best conclusion. 

To go more in depth on this topic, we recommend watching the full webinar, and checking out our other compliance checklists.