Bending With the Wind: EEOC's Attack on Inflexible Leave Policies

Much publicity has been given to the recent $20 million settlement (for good reason) the EEOC negotiated with Verizon Wireless concerning the company's leave policy. The Verizon settlement is now the largest example of the EEOC's enforcement approach concerning "inflexible medical leave policies." This case is an illustration of what many experts predicted would be the paradigm shift in ADA analyses under the 2008 Amendments: the question is no longer whether the employee is disabled, but rather what an employer is doing to provide a reasonable accommodation.

The most recent settlement, while eye-popping, is not the first foray by the EEOC into this specific area of ADA enforcement:

• August 2001: The EEOC settles a reasonable accommodation suit against Blood Systems, Inc./United Blood Services for $650,000. The Commission claimed that the employer's medical leave policies "illegally required termination of a class of employees with disabilities after 120 days without consideration of whether an extension would be a reasonable accommodation in accordance with the ADA."
• August 2009: The EEOC sues UPS for summarily enforcing a leave policy that results in termination of employment if the employee is unable to return to work after a 12-month leave of absence for at least 30 days.
• September 2009: The EEOC enters into a consent decree with Sears, Roebuck and Co. for $6.2 million (at the time, the largest ADA settlement in a single lawsuit for the Commission). The EEOC had sued Sears claiming that the company's "inflexible workers' compensation leave exhaustion policy" illegally discriminated against employees with disabilities by failing to assess whether additional leave would be a reasonable accommodation.
• August 2010: The EEOC files suit against Princeton HealthCare System for enforcing "leave policies that do not provide reasonable accommodations" by terminating employment of individuals who are unable to return to work within 7 days (if not eligible for FMLA) and refusing to grant FMLA-eligible employees leave beyond the mandated 12 weeks.
• September 2010: The Commission files suit against United Road Towing for an inflexible 12-week medical leave policy.
• September 2010: Texas concrete manufacturer Ingram Readymix is sued by the EEOC for allegedly denying periodic leave to an employee for medical treatment.
• October 2010: California company American Apparel is sued by the Commission for terminating an employee who needed additional leave for chemotherapy after he had taken approved leave for the initial treatment.
• January 2011: Supervalu (Jewel-Osco) settles a suit brought by the EEOC for $3.2 million. The Commission alleged that the company "operated an overly rigid and illegal disability leave policy" that terminated disabled employees if they could not return to work after a year without any need for accommodations or physical/mental restrictions.

An employer's take-away from all of this can be found in a quote from one of the EEOC's regional attorneys: "The era of employers being able to inflexibly and universally apply a leave limits policy without seriously considering the reasonable accommodation requirements of the ADA are over."

If you haven't already re-evaluated your leave policies, these examples are hopefully an impetus to do just that. While hardwoods have their place, your leave policy might be more appropriately constructed as a willow.

6th Cir: Must be disabled to pursue a discrimination claim under portion of ADA

The 6th Circuit Court of Appeals (Michigan, Ohio, Kentucky, Tennessee) ruled yesterday that employees challenging an employer's drug testing policy on the basis that it discriminates against those with a disability must, in fact, have a disability to pursue such a claim. In Bates et al v. Dura Automotive Systems, the Court found that employees who were terminated because they consumed drugs containing substances prohibited under Dura's drug testing policy were not "disabled" under the meaning of a particular section of the Americans With Disabilities Act. The section cited by the employees stated that it was discriminatory for a "covered entity" to use qualification standards, employment tests, or screening criteria that eliminated individuals with disabilities unless it was for a job-related and business necessity reason.

In finding for the employer on this specific issue of law, the Court held that an employee who was not first found to be disabled could not bring a claim under that section of the ADA. (Keep in mind that other sections of the ADA do protect individuals who are presumed to have a disability and/or associated with someone who has or is presumed to have a disability.) Accordingly, Dura's drug testing policy that prohibited substances commonly found in drugs such as Xanax, Lortab and Oxycodone was not instituted or carried out in violation of the ADA.

While this seems like a triumph for employers, it is important to note that the case was filed prior to the passage of the Americans with Disabilities Act Amendments Act of 2008. The opinion in Dura focused on the language of the old ADA and the construction given to that language, noting in particular that to limit the application of the section at issue to "only cover disabled individuals is not an absurd construction or inconsistent with the intent of the statute." Since Congress was clear in enacting the Amendments that the ADA should be given the broadest construction possible, it is likely that a different result would have been achieved under the Amendments; the employees stand a greater chance of being deemed "disabled" under the Amendments. (Courts had held that the Amendments were not to be applied retroactively.)

Employers who have not revisited their drug-testing policies since the enactment of the Amendments would be wise to do so. An employer such as Dura could have still prevailed if it would have been able to show that the substances prohibited were out of business necessity and job-related.

Read the full opinion here.

Earning its keep?

The EEOC has been busy, busy, busy! Three suits filed this month just on the Americans With Disabilities Act (as amended): http://www.eeoc.gov/eeoc/newsroom/release/9-9-10a.cfm?goback=%2Egde_147609_member_29930620

Neither "A" in "ADA" means "assume"

So, that whole discussion by the EEOC on the importance of interacting with your employees who request or might need a disability before taking action?

Or the post from 2008 on the changing mindset for employers thanks to the amendments to the Americans with Disabilities Act?

We were serious. And so is the EEOC, who filed suit on behalf of an employee who was offered a job, showed up for the first day of work, and had the employment offer rescinded once a member of management noticed the employee was missing some fingers.

The EEOC recently released its proposed regulations for the ADA Amendments Act of 2008. The regulations were designed to better define the provisions of the Amendments and better refine Congress’s intent in amending the ADA. In fact, the drafters of the proposed regulations made sure that we were aware that they were charged with enacting Congress’s intent that the term “disability” be broadly construed (if they mentioned it once, they mentioned it 20 times!!).

True to their task, the EEOC has broadly defined what qualifies as a disability. In fact, the proposed regulations, at this point, do not leave much question as to whether a disability exists. The list of major life activities is so extensive that almost any ailment could substantially limit one of those activities (for instance, concentrating is now considered a major life activity – who doesn’t suffer from the occasional lapse in that!). Also of note is the change which no longer allows ameliorative mitigating factors such as medication or other devices -- except eyeglasses and contact lenses -- in determining whether an activity of daily life is affected. It also important to recognize that the proposed regulations only require an ailment to substantially limit one major life activity and it does not matter whether it limits others.

Ultimately, we wish the committee spent a little bit more time letting us know what would be considered an “undue hardship” for the employer. We know that whether an ailment is a disability will be broadly construed, but there’s just not much guidance on what to do with that. For instance, the proposed regulations specifically list epilepsy as a disability, but no guidance is given on how to accommodate the disability or what would be considered an undue hardship for an employer trying to accommodate an epileptic.

Regardless, there'll be much more to come on these regulations. Stay tuned for more!

Hot off the press!

Okay, sort of.

A 7th Circuit (Indiana, Illinois, Wisconsin) Court of Appeals handed down an Americans With Disabilities Act decision that may provide us with a glimpse of how the judiciary will approach the Americans With Disabilities Act Amendments Act of 2008. The claim arose under the ADA, but the Court opined that the outcome would not have changed under the ADAAA.

In the case (Winsley v. Cook County Department of Health), the plaintiff was unable to drive after being involved in a car accident. She was diagnosed with suffering from post-traumatic stress disorder. Problem? The plaintiff was a nurse who was required as part of her job to drive to/from patients' houses. She was placed on restrictions to only drive to/from work, and the employer insisted that it could not accommodate such rigid restrictions. The plaintiff resigned and then sued under the ADA.

The 7th Circuit performed its analysis under the ADA, finding that driving was not a major life activity and, thus, Winsley was not entitled to the protections of the ADA. The Court went further, though, to state that its decision most likely would not have changed under the ADAAA. Noting that the statutory major life activities of the ADAAA are fundamental to one's every day existence, the Court stated that even the average person would consider him-/herself to be "limited in a material way" if rendered unable to perform one of those activities. Driving--well, that's a different story.

The Court noted that driving is not a right, and that many individuals choose not to drive and do not consider their quality of life diminished. Additionally, driving is one of those activities where performance can be dictated by where one resides, unlike the major life activities listed in the text of the ADAAA.

It remains to be seen whether the other circuits would hold as the 7th Circuit. And, of course, we all await the first opinion interpreting the ADAAA.

Until then, happy navigating!