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MAY 2017 ■ www.CPAPracticeAdvisor.com 19 THE LABOR LAW ADVISOR which time the employee is auto- matically subject to termination. These are the types of leave policies that the EEOC refers to as unlawful "inflexible" leave policies. According to the EEOC, such policies violate the Americans with Disabilities Act. Inflexible leave policies became a focus of the EEOC under their Strategic Enforcement Plan ("SEP") for fiscal years 2012-2016. They have become such a high enforcement priority that they have again been included in the EEOC's updated SEP for years 2017-2021. The EEOC has also challenged no fault attendance policies under the same rationale. The EEOC has concluded that such policies violate the "reasonable accommodation" obligations that employers have under the ADA when responding to an employee's disability. The EEOC has processed many charges and filed numerous law- suits challenging an employer's unbending application of such poli- cies, such as the EEOC's high-profile settlement with Verizon Wireless and its continued lawsuit against AutoZone. According to the EEOC, the failure to consider extension of a set leave period to accommodate an employee's disability as well as holding employees accountable under a no fault attendance policy for absences or tardiness related to a disability are clear violations of the ADA. In the EEOC's opinion, a leave extension need not be open ended. But, if several additional weeks or possibly even months might enable the employee to return without causing the employer undue hard- ship, such an extension may be an obligatory "reasonable accom- modation." When coupled with the vast expansion of what constitutes a disability brought about by the 2009 amendments to the ADA, an extremely large number of medical and mental conditions have begun to be deemed disabilities, making handling accommodations and leave policies even more confusing and burdensome. WHAT EMPLOYERS SHOULD DO NOW In light of the EEOC's increased scrutiny on employers' leave poli- cies and the inclusion of "inflexible" leave policies in the agency's most updated enforcement agenda, employers should take several steps now, to proactively address any potential liability. ■ Review Your Company's Leave Policies and Call in the Experts, If Needed Employers should take a close look at their leave policies to deter- mine whether any changes should be made in light of the EEOC's enforcement agenda. With the tangle of laws covering medical and disability leave (such as the ADA, FMLA, workers' comp., and state- specific laws), companies should work closely with HR, in-house, and outside counsel to become educated about the laws. In addi- tion, employers should regularly train supervisors and others who are on the front lines of these types of requests. Employers should consider bringing in a third-party to perform periodic audits of leave records and policies, to ensure that the company is handling all issues appropriately. ■ Be Aware of State Laws Many states have enacted their own versions of disability and fam- ily leave laws. These may be more generous to employees than federal regulations. When employees are covered by both federal and state laws, they are entitled to the greater benefit or more generous rights provided under the different parts of each law. ■ Take All Claims of Disability Seriously and Implement a Written Procedure All claims of disability should be taken seriously, even those that are clearly frivolous. It is easy for employees to create a case where none would have existed had the employer responded to a complaint with proper and timely action. All employers should have a written procedure for employees to follow in dealing with disability claims. ■ Refer All Disability Claims to Human Resources While supervisors and manag- ers should be familiar with the law and ready to be the first step in the disability claim process, all dis- ability claims should be referred to and handled by an in-house expert, such as Human Resources. ■ Go Through the Required Interactive Process in All Situations In all situations where a disabil- ity claim has been made, employers must go through the interactive process to determine what, if any, reasonable accommodations may be made to comply with the ADA, including possible additional leave. ■ Thoroughly Document Everything If companies aren't already doing so, they need to begin docu- menting every request and deci- sion. Once leave is approved, the company should outline how long the leave will be and what the policy is for returning to work. This will help to eliminate misunderstand- ings and minimize the chances that employees can claim discrimination or other violations of their rights. ■ Communicate Throughout the Leave Companies should stay in touch with workers during their leave, particularly when the leave is set to expire and employees will be medi- cally released to return to work. This will help manage expectations on both sides and allow employers to plan for any necessary accom- modations or changes to the initial leave agreement. ■ Proceed Carefully with Termination When a worker has exhausted his or her leave but is not willing or is unable to return to work, employers need to carefully con- sider whether firing the employee is the right step. It's important to determine whether any applicable laws could extend the leave. If the employer decides that terminating the employee is the appropriate action, every decision and commu- nication should be put into writing. This will help ward off potential litigation and provide a defense if the employee decides to sue. For several years now, claims under the ADA have seen the largest increase in filings with the EEOC. Add to the increased agency atten- tion a rapidly aging workforce more prone to disabilities, and you can be virtually assured of more charges being filed in 2017. But, by being proactive and taking steps now, employers can put themselves in the best position to avoid any issues with the EEOC in the coming year. ■ In Fiscal Year 2016, the last year for which complete statistics are available, there were a total of 91,503 Charges of Discrimination filed with the agency. Of these, 28,073, or over 30%, alleged violations of the ADA. And this number has only risen in recent years. For example, in 2005 there were only 14,893 Charges alleging disability discrimination filed. This trend is likely to continue.