Maximum leave of absence policies were developed as a way for employers to control the impact of employee leaves. In theory, these policies operate in a reasonable and non-discriminatory fashion since all employees are afforded the same duration of leave, regardless of the reason for the leave. However, over the past several years, the Equal Employment Opportunity Commission (“EEOC”) has taken the position that such policies violate the Americans with Disabilities Act’s (“ADA”) requirement of an individualized assessment regarding potential reasonable accommodations.
The EEOC points to the text of the ADA and its regulations which state that a reasonable accommodation may include appropriate adjustments or modifications of policies for individuals with disabilities. 42 U.S.C. §12111(9)(b); 29 C.F.R. §1630.2 (o)(2)(ii). The EEOC’s Guidance interprets this statutory provision to mean that employers may have to modify leave policies, including “no fault” or maximum leave policies, as a reasonable accommodation. The Guidance notes that such modification may include extending periods of unpaid leave beyond the maximum in an employer’s standard leave policy, as long as doing so does not impose an undue hardship on the employer.
The EEOC has also addressed the interplay between the reasonable accommodation requirement of the ADA and the employers’ obligations under the Family Medical Leave Act (“FMLA”), a statute which does not even fall within its jurisdiction. The EEOC maintains that terminating a disabled employee who is unable to return to work after exhausting the 12-week leave authorized under the FMLA may still be a violation of the ADA’s reasonable accommodation requirement. According to the EEOC, the fact that the employer fully complied with the FMLA is no defense to allegations of ADA violations and will have no bearing on the ADA analysis.
What’s more, in the past few years, the EEOC has successfully obtained substantial settlements in a number of lawsuits in cases challenging inflexible leave of absence and attendance policies. For example, in 2011, Supervalu Inc. agreed to pay $3.2 million to settle ADA claims related to its inflexible leave policies and, in 2009, Sears Roebuck agreed to pay $6.2 million to settle similar claims. Likewise, in 2011, Verizon agreed to pay $20 million to settle ADA claims related to its no-fault attendance policy. The EEOC has gone on to file several actions challenging similar policies:
- EEOC v. United Road Towing Inc., failure to provide reasonable accommodations by terminating disabled employees after exhausting 12 weeks of FMLA leave and refusing to re-hire employees once they were finally released to return to work;
- EEOC v. IPC Print Services, failure to provide reasonable accommodations by terminating an employee rather than granting him a part-time schedule because he had exceeded the maximum hours of leave allowed under company policy;
- EEOC v. Princeton HealthCare System, failure to provide reasonable accommodations by terminating employees after either seven days or 12 weeks, depending on eligibility for FMLA;
- EEOC v. UPS, failure to provide reasonable accommodations by terminating an employee for exceeding 12-month leave policy;
- EEOC v. Denny’s, Inc., failure to provide reasonable accommodations by terminating a nationwide class of disabled employees at the end of the company’s pre-determined maximum leave limit.
The EEOC’s 2013 agenda promises a continued focus on these policies. To date, however, the EEOC has failed to provide any meaningful guidance as to what satisfies the requirement to modify a workplace policy, let alone a neutral maximum leave policy. In light of these increased enforcement efforts, employers are advised to keep in mind the following strategies when administering all types of employee leave:
- Consider your company’s ADA obligations as part of all workers’ compensation and FMLA eligibility determinations and return to work procedures;
- Follow up and communicate with employees when leave is unpredictable, chronic or more frequent than expected;
- Consider benefits and leave separately, rather than lumping them together and thinking, for example, that someone receiving long-term disability benefits should never be on ADA leave or vice versa;
- Consider eliminating any fixed leave policies altogether. An employer that maintains a fixed leave policy will have a hard time claiming undue hardship in that it cannot give one or two additional weeks of leave beyond the fixed leave period;
- Ensure that written policies—including any fixed leave policies—communicate a willingness to consider additional leave as an accommodation under the ADA;
- Approach all requests for an accommodation on a case-by-case basis, regardless of any no-fault policies.