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.

Happy New Year - and New Laws!

As you're taking down the holiday decorations around your office, take a few moments to think about your successes over the past year. Relish the moment. Take it all in. Then brace yourself.

2009 is primed to be an active year for HR professionals. You may be saying, "Isn't every year active for me?" Yes, it most certainly is. So just think about what potentially awaits you if we're sending up the flare now. Consider it job security in these uncertain economic times!

It can be overwhelming to think about the changes that occurred in 2008 which are poised to take effect in 2009--FMLA, ADAAA, GINA. So let's not get overwhelmed. Instead, we'll focus on each of these one week at a time. Remember--you're not the only HR professional out there trying to get a handle on these new laws and their impact on your company. Take a deep breath, open your mind, and store your attorney's number in your speed dial for those questions that will surely arise as everyone wades through our new work environment.

This go-around, we'll focus on the ADAAA. Keep in mind--attorneys are best-guessing just like you on how this law will be implemented, interpretations of the language, and developing your best practices. Consider this entry, as well as your approach to implementation, to be a living document. Change is as much good as it is necessary under the ADAAA.

One of your biggest hurdles in embracing the new Act will be changing a mindset that has developed over the last 15 years under the ADA. No longer will the focus be on whether someone is an individual with a disability. Rather, you will now be expected to show that as the employer, you lived up to your end of the bargain by engaging in the interactive process with the employee who requests a reasonable accommodation, examining the reasonableness of the accommodation request (or developing an accommodation, depending on the case), and the effort put forth in adapting the work environment for the employee.

How do you change this ingrained philosophy? Train your managers, revisit your reasonable accommodation policy, and prop your door open for employees are some of the ways to change your ship's course.

Get in touch with your HR counsel to talk about what best practices specifically fit your organization. Use this as a dry-run for engaging in the interactive process, as you may be hesitant to follow some of the recommendations offered for a number of reasons.

And you thought taking down the decorations was exhausting work!

Happy New Year!