Steve Befort has just posted on SSRN his new paper Accommodation at Work: Lessons from the Americans with Disabilities Act and Possibilities for Alleviating the American Worker Time Crunch
. The abstract:
|This article addresses issues of accommodation and time with respect to the American worker time crunch problem. On the former issue, I concur in Professor Arnow-Richman's observation that an accommodation approach to addressing the competing pressures of work and family is prone to resistance from the courts. Experience under the ADA illustrates a judicial reluctance to go beyond a traditional equal treatment view of discrimination to embrace a more affirmative different treatment model of discrimination. But this does not mean that the ADA's reasonable accommodation framework has been a failure. To the contrary, while the reasonable accommodation requirement may have fallen somewhat short of expectations on the substantive law front, it has launched a procedural revolution in fostering an interactive process by which employers and employees cooperatively work to identify suitable workplace accommodations. The impact of this procedural device is not as readily noticeable as the courts' substantive law limitations, but it may serve as the ADA's most significant contribution to this point.
Turning to the second issue, American workers, quite simply, do not have enough time to tend to caregiving and other non-work needs. While this is a particularly acute problem for caregivers, the American worker time crunch is a problem of pandemic proportions. American workers of all stripes are required or pressured to spend ever-increasing amounts of time at work. The ADA model represents one possible format for accommodating non-work time demands. The first decade of experience under the ADA suggests that judicial and employer resistance would temper the substantive law advances of such an approach without necessarily conferring the procedural advantages of the ADA's interactive process. A more specific legislative approach is preferable. Given the pervasive nature of the American worker time crunch problem, a broad legislative solution is in order. This article suggests one possible approach in the form of a proposed amendment to the FMLA that would enable employees to take paid leave for two of FMLA's twelve-week leave period financed in a manner similar to that used for unemployment compensation purposes. The proposal also would permit employers to opt out of the new mandate by providing a minimum of four weeks of leave per year that may be taken by employees for care, sickness, or personal leave/vacation purposes.