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.

Severe weather policies: not just for winter any more

We've had a run of bad weather in our area over the last few days. I listened to a friend recount the multiple ways he tried to get to work one morning this week, only to be thwarted each time by a tree across the road he was trying to take. He eventually made it to his office after 1 1/2 hours of driving around (normal drive time is 5 minutes) and taking quite the circuitous route.

Most of our clients have severe/inclement weather policies. It is rare for them to be invoked in seasons other than winter. That could mean that the wording in the policy might lead one to believe that it is only meant for winter conditions (i.e., if schools are on a snow schedule, if the temperature drops below ___ degrees, if you are not comfortable driving in snowy conditions, etc.).

As is often the case, we learn how to improve a policy when confronted with a situation that wasn't necessarily anticipated when the policy was written. Same here. Check your severe weather policy, and be sure it's doing the job for you.

(Yes, these boots do the job for me, except mine are orange with cream polka dots--shocking, I know.)

Tell me where it hurts. . .

If you're an HR professional, your response to this invite might be the longest it's been in a while. Your budgets have been trimmed, maybe training has been reduced, demands on you have changed and increased, and your head is on a swivel as you try to keep up with the talks about pending federal and state legislation impacting your company.

On top of those aches and pains, you now are entering flu season. You may have noticed a trend in your company that employees are coming to work sick on days they would normally stay home. It seems to be a common reaction in times when job security is low or weak. This trend may have some others in your company worried--you notice more cans of Lysol around the office, pumps of antibacterial hand gel are around every corner, and was that a mask you just saw on the receptionist?

You know what's coming next: the knock on your door by a latex-gloved manager who asks you if the company shouldn't put out a policy on coming to work sick, or maybe an edict telling people they have to stay home when they're under the weather? The media attention over this flu season is quite impressive, and that has undoubtedly raised the cough antennas on a lot of your employees.

Check your current policies first to see if any of them address the concerns that are surely headed for your door faster than the next story about H1N1. Give due consideration as well to whether you could enforce a new policy if you were so inclined to write one--how long is long enough? do you need a RTW from the doc? can you require proof of non-contagiousness and, if so, what is it? should you require a flu vaccination--or can you?

You should also be prepared for inquiries about reasonable accommodations--maybe someone has a history of a weakened immune system--what to do with that person if his co-workers are keeping Kleenex in business right now?

It's going to be an interesting season for all of us. Now excuse me while I turn on my air purifier.

OMi aching thums

Technology is wonderful. We are a society of constant contact, instant responses, portable documents and all access all the time.

While e-mailing may still be the leader when it comes to non-voice messaging, texting has exploded in popularity and use in recent years. Most wireless device plans include the ability to send and receive text messages. E-mail, even when it is routed to a wireless device, is usually also hosted by and downloaded to a company server. Text messages, on the other hand, usually only appear on the employee's phone/wireless device.

Many employers who have a company property policy include the disclosure that the company has reserved the right to monitor communications, in whatever form, where and when the need arises. So that would include text messages on a company-issued wireless device, right? No, according to a recent decision from the Ninth Circuit Court of Appeals. (The Ninth Circuit includes the states of California, Arizona, Nevada, Idaho, Montana, Washington, Oregon, Alaska and Hawaii.)

A police department had examined text messages sent by its employees to determine how much the employees should pay for personal use of the wireless device. Now, it is not uncommon for employers to allot a certain amount of the communication expense each month to employees based upon personal use of the devices. Usually, that is handled in ways that are considered non-intrusive, such as having the employee review the monthly charges for personal expenses. In this case, the department actively reviewed the actual messages in order to determine if they were work-related.

The employees filed suit, claiming invasion of privacy. Traditionally, courts have recognized that an employee has a limited expectation of privacy in the work setting, an expectation that has been extended to the use of company-issued communication devices. In this case, though, the Ninth Circuit said the employees had a reasonable expectation of privacy since the text messages were not hosted or downloaded by a company server but were instead stored by a third-party (the wireless service provider). For employers in the Ninth Circuit, they must now obtain the employee's consent or a search warrant before they view text messages or communications stored by third parties.

Thus, although the Ninth Circuit ruling may not be applicable to you because of where you are located, it does offer some insight on the distinction that may be drawn among types of wireless communications and where the privacy line lies. Additionally, it is noteworthy that the case dealt with a situation where the company was not conducting an investigation, but rather simply wanted to note the amount of personal use of text messaging. It remains to be seen whether the same conclusion would have been reached had the company had a more business-related necessity to review the text messages.

Some employers have eliminated the text messaging feature from company plans since those messages usually cannot be saved and are more difficult to monitor. Short of doing that, if you find yourself in a situation where you believe reviewing actual text messages is necessary to your business operations, tread lightly. And talk with your counsel!

TNT, hpE txtN!