Not too long ago, a maxim in employment policies was to treat all employees equally, thus assuring no one would be discriminated against for their race, sex, age or national origin.
Unfortunately for many employers, this led to blanket policies that are now coming back to bite them. That’s because the one-size-fits-all approach, when implemented in leave of absence or attendance policies, runs smack into the Americans with Disabilities Act (ADA). The ADA specifically rejects the standardized policies and calls for individualized assessments for every employee qualifying as disabled under the law.
“Most employment discrimination laws are ‘thou shalt not’ statutes,” says Gerald Maatman, a partner at Seyfarth Shaw. “The ADA is an affirmative duty statute. You have to affirmatively provide a reasonable accommodation [to disabled employees] in order to comply. We have to break the mindset that if you treat everyone the same, you will have no problems.”
The Equal Employment Opportunity Commission (EEOC) is doing its part to change that mindset by taking an aggressive approach to policies that automatically terminate employees at the conclusion of a leave of absence or after they have taken off more than an allowed number of days in a given year. It also has gone after employers who refuse to allow people to return to work part time or with reduced job responsibilities following a medical leave.
The recently enacted amendments to the ADA that greatly expand the kinds of medical conditions qualifying as disabilities, coupled with an aging workforce subject to more medical issues, have made ADA compliance a growing issue for employers and a top priority for EEOC enforcement.
Maatman says ADA issues generally, and leave of absence policies specifically, are on the EEOC’s short list of “hot-button issues” for 2012.
“A blanket policy with generalizations, such as, ‘Anyone off work for a certain period of time will be terminated,’ raises a red flag for the EEOC,” he says.
“Full Duty” Failure
Two large settlements in 2011 illustrate the policies the EEOC is targeting.
In January, the Jewel-Osco food store chain agreed to pay $3.2 million and undertake several remedial relief steps to settle an EEOC suit alleging the company terminated scores of employees when their leaves of absence ended instead of offering them the opportunity to return to work with reasonable accommodations. As part of the settlement, Jewel-Osco agreed to assure employees on disability leave that they do not need to be 100 percent healed in order to return to work and inform them of possible accommodations if they return with medical restrictions.
“Employers are still stumbling over the concept of requiring employees to return to work ‘full duty,’ without restrictions. It’s a no-no under the ADA,” says Jeff Nowak, a partner at Franczek Radelet.
Nowak explains that “full duty” requirements violate the ADA mandate that employers engage in an “interactive process” with employees with disabilities to determine if there is a reasonable accommodation that will allow them to work, such as part-time work or reassigning nonessential job functions. “In the end, in many cases the employer may not be able to accommodate the employee, but they need to engage in the interactive process,” he says. “When they don’t is when I find ADA claims gaining traction with the EEOC.”
Another EEOC target is “no-fault” attendance policies that allow a certain number of unexcused absences without any documentation and then penalize employees who are absent more than allowed. These policies gained favor by saving human resources departments the trouble of checking on the reasons for every absence and sparing employees the burden of getting a doctor’s note each time they were sick.
However, the policies also may result in overlooking the need to engage in the interactive process with disabled employees. In the second large 2011 settlement, Verizon agreed in July to pay $20 million to resolve an EEOC lawsuit that claimed the company refused to make exceptions to its no-fault attendance policy to accommodate employees with disabilities. It was the largest disability discrimination settlement in EEOC history.
The Verizon attendance plan designated a number of “chargeable absences.” When an employee exceeded that number, the company put him on a disciplinary track that could ultimately lead to termination. The EEOC said Verizon should have considered exceptions to this policy as a reasonable accommodation for employees whose chargeable absences were due to disabilities.
“If an organization enforces a no-fault attendance policy, it should ensure that it does not charge, and then discipline, an employee for absences that are covered by the Family and Medical Leave Act (FMLA) or caused by conditions covered by the ADA,” says Linda Hollinshead, a partner at Duane Morris. “The important thing is that you have to carve out absences that are legally protected.”
In addition to jettisoning blanket leave and attendance policies, employment law experts advise employers to revise their written policies.
For example, the employee handbook should state that if an employee needs additional time off after a leave is exhausted, the employer will engage in the interactive process to determine if that is a reasonable accommodation, Hollinshead says. Nowak recommends specifying a procedure for employees to request such an accommodation.
Hollinshead advocates training for managers and supervisors so they don’t automatically terminate someone who has exhausted leave or who hasn’t worked for the company long enough to qualify for FMLA leave. She notes that while an employee must have worked 12 months to qualify for leave under the FMLA, employees are covered by the ADA from Day 1, and a leave may be a reasonable accommodation if they become ill or disabled. She also advises contacting employees near the end of their maximum leave period to see if they need an accommodation to return to work.
Nowak notes that employers have a right to terminate a disabled employee who wants additional leave if that would create an “undue hardship” on the business. They should document specific facts such as decreased productivity, lower sales, declines in customer service or burdens on other employees.
“Employers generally can do a better job of establishing how a request for additional leave is an undue hardship.” Nowak says.