JOB CITES: EEOC examines use of leave as reasonable accommodation

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On June 8, the EEOC held a Commission Meeting where the use of leave as a reasonable accommodation was explored.

During the meeting, the EEOC reiterated the importance of providing leave in certain circumstances as a reasonable accommodation. The EEOC noted that while many requests for leave can be handled under an employer’s regular leave policies, some situations require making exceptions to an employer’s leave policies.

The EEOC specifically stated its stance on “no fault” leave policies, stating that “‘no fault’ leave policies, under which an employee is automatically terminated after using a certain amount of leave, must be modified as a reasonable accommodation, absent undue hardship, if an employee with a disability needs additional leave.”

Recent press releases from the EEOC reveal an uptick of enforcement efforts by the EEOC in challenging Company leave policies. The following cases have been highlighted as recent litigation:

• Verizon Pays $20 Million to Settle Nationwide EEOC Disability Suit: The EEOC charged that Verizon violated the ADA by refusing to make exceptions to its “no fault” attendance plans to accommodate employees with disabilities. According to the EEOC, under the challenged attendance plans, if an employee accumulated a designated number of “chargeable absences,” Verizon placed the employee on a disciplinary step which could ultimately result in more serious disciplinary consequences, including termination. The EEOC asserted that Verizon failed to provide reasonable accommodations for people with disabilities, such as making an exception to its attendance plans for individuals whose “chargeable absences” were caused by their disabilities. Instead, the EEOC said, the company disciplined or terminated employees who needed such accommodations.
• Denny’s Pays $1.3 Million to Settle EEOC Disability Discrimination Lawsuit. The EEOC alleged that Denny’s maintained a maximum medical leave policy that automatically denied workers any additional medical leave beyond a pre-determined limit, even when additional leave was required by the ADA as a reasonable accommodation, resulting in the unlawful termination of a class of workers.
• ACT Teleconferencing Pays $40,000 to Settle EEOC Disability Discrimination Law Suit. The EEOC charged that ACT Teleconferencing violated the ADA when it refused to accommodate the disabilities of Paige Sprince, a longtime Massachusetts employee who had been seriously injured in an automobile accident on her way to work in February 2009, by refusing to extend her leave of absence for one month. Instead, the EEOC alleged that the Company terminated Sprince right after she had received clearance from her doctor to return to work in one month.
• Sears, Roebuck Pays $6.2 Million for Disability Bias. In this case, Sears had a policy where employees could receive one year of leave. The Chicago Area EEOC office described this case as one where “A service technician work[ed] for many years for a giant retailer with a maximum one-year leave policy. If you are on leave for more than a year, you are out the door.” The EEOC stated that the employer did not satisfy its ADA obligations merely by placing the service tech on leave and failing to seriously consider him for a reasonable accommodation which would put him back on the job—including reassignment to another position, even though the employee received one year of leave.
• SuperValu pays $3.2 Million to Settle Disability Discrimination Suit. Supervalu also maintained a one-year disability leave period. The EEOC alleged that Supervalu terminated employees at the end of the year rather than returning them to work with a reasonable accommodation, or considering whether there was a reasonable accommodation that could allow them to return to work prior to the expiration of the leave period. The case was resolved by the court’s entry of a $3.2 million consent decree.

For Wisconsin employers, this line of cases indicates that the EEOC is taking an approach more akin to Wisconsin’s notion of “clemency and forbearance.” The “clemency and forbearance” requirement was first applied in Target Stores v. LIRC, 217 Wis. 2d 1, 576 N.W.2d 545 (Ct. App. 1998). There, the employee had repeatedly fallen asleep on the job due to her sleep apnea, a disabling condition, and had been disciplined and finally discharged in accordance with the employer’s rule against loafing on the job. She sought treatment for her condition and kept her employer informed of the nature of the treatment she was getting (an inhaler) and the treatment her physician was going to try next (a CPAP machine). She was discharged before going on the CPAP machine, which solved her sleeping problem and which would have permitted her to stay awake while at work. 217 Wis. 2d at 4–8, 576 N.W.2d at 547–49.

The Court of Appeals concluded that LIRC’s decision that the employer should have exercised temporary forbearance in the enforcement of its rule against loafing on the job was reasonable and supported by substantial evidence. Id. at 20, 576 N.W.2d at 553. The court observed:

Like a leave of absence, forbearance from enforcing the loafing rule is a temporary accommodation to permit medical treatment which, if successful, will remove the difficulty in performing the job-related responsibility. Whether either is a reasonable accommodation in a given case will depend on the facts and circumstances of that case.

Id. at 19–20, 576 N.W.2d at 553.

In short, Wisconsin employers have been advised for some time that they may need to temporarily suspend their attendance and leave policies for employees with known medical conditions. At the same time, the Wisconsin Supreme Court has stated that “‘clemency and forbearance’ is not an open-ended requirement mandating that an employer indefinitely suspend its attendance requirements for the disabled employee.” Stoughton Trailers, Inc. v. LIRC, 2007 WI 105, ¶ 67, 2007 WL 2034022 (2007).

Unfortunately for employers, neither the EEOC nor Wisconsin courts have provided guidance as to how much leave an employer must provide to an employee. A few principles to consider in making such a determination would be as follows:

• Engage in the interactive process. The amount of leave provided to employees is meant to be an individualized fact intensive approach. Make sure that you are discussing with the employee how much leave they may need. Do not just turn down the request because the leave time exceeds your company’s policy.
• Don’t assume a generous leave policy will suffice. As seen from the Sears and SuperValu cases, generous leave policies do not necessarily protect your company.
• Consider whether the leave will create an undue hardship. While leave does not need to be provided if it causes an undue hardship, certain factors will never make the request for leave an undue hardship. For instance, the fact that other employees are angry over the amount of leave provided and the anger negatively impacts morale will never suffice to prove undue hardship. When discussing the undue hardship analysis in leave situations, the EEOC stated that “rarely is cost asserted as an undue hardship to providing leave as an accommodation. Rather, as the Commission has emphasized in the Reasonable Accommodation Guidance, ‘[i]n certain circumstances, undue hardship will derive from the disruption to the operations of the entity that occurs because the employer can neither plan for the employee’s return nor permanently fill the position.’ Reasonable Accommodation Guidance at Q&A 44. In a 2005 informal discussion letter, OLC said that undue hardship related to leave may depend on such factors as the employer’s ability to have the employee’s duties performed in her absence and the consequences to the employer’s business if it could not.”
• Ensure there are exceptions for fixed-leave policies. The EEOC guidance is clear that an employer may not simply follow its own fixed-leave policy and terminate an employee with a disability who needs leave beyond the set period, without considering whether additional leave could be provided without undue hardship.
• Don’t provide too much leave. Follow-up. Ensure your company has written policies in place for following up with employees on medical leave. Do not leave employees out on leave indefinitely for years on end with no communication. When that employee then contacts you regarding return to work, your business may not be able to establish undue hardship in returning the employee.
• Communicate with third-party administrators. Some employers utilize third parties to assist them with leave management. Ensure third-party administrators are appropriately communicating with the employee and conveying the communications to you.

Above all else, documentation is key. Not only should your company document efforts to engage in the interactive process, but don’t “leave” well enough alone. When an employee does not return from leave, make sure efforts to communicate with the employee are documented.

Marcie Cornfield is an attorney at Gonzalez Saggio & Harlan LLP, practicing employment law in the Milwaukee office. She can be reached by telephone at 414-277-8500 or via email at [email protected].