TAKE THESE THREE STEPS TO ENSURE ADA COMPLIANCE NOW!

NewYearClockWe all have a long list of New Year’s resolutions, e.g., shape up; lose weight; stay organized; save money. HR professionals should add a commitment to ADA compliance to their resolution list.

According to the EEOC statistics, charges of discrimination alleging violations of the ADA have been on a steady rise in the past five years: in FY 2008, the EEOC received approximately 19,000 charges alleging violations of the ADA; in FY 2013 (the last year statistics are available), that number has increased to nearly 26,000 charges.  See: Charge Statistics.  The EEOC has made ADA compliance a priority, so we expect to see charges continue to rise in the next few years.

New-years-2014With this in mind, here are three easy steps to institute to become fully compliant with and ready to handle issues arising under the ADA:

#1 Designate an “ADA Officer/ Coordinator”
Select and fully train a member of your HR and/or Benefits team to handle all ADA accommodations request. Of course, this designated person can have other job responsibilities as well; for instance, your ADA Coordinator may also be responsible for FMLA certifications and tracking.  Importantly, this professional should understand the differences between and nuances of the ADA, the FMLA and any other leave program offered by the employer.

All requests for accommodation due to any medical condition should be directed to your designated officer/ coordinator for consideration and action. An ADA officer/ coordinator will centralize the employer’s response and ensure consistent treatment and application of the ADA.  Most importantly, this designation limits direct supervisors’ knowledge of their supervisees’ medical conditions, in turn limiting an employer’s exposure for discrimination and/or retaliation claims.

#2 Use ADA Accommodations Request Forms, Position Descriptions and Checklists
A written accommodations request form is the single best tool for evaluating an employee’s ADA accommodations request. The form requires employees to briefly explain their disability and accommodation request in their own words. Additionally the form requires the employee’s treating physician to certify the employee’s medical condition;  answer questions to determine whether the medical condition qualifies as a “disability;” review the position description for the job; identify the functions of the job the employee cannot perform without an accommodation; opine as to all reasonable accommodations allowing the employee to perform the functions of the job; state the limits to the accommodation(s); and identify alternative accommodations.

Once completed by the employee and treating physician, the form is submitted to the ADA Officer/ Coordinator (note– failure to complete the form may lead to denial of the accommodation request and proving the employee failed to engage in the interactive process). The form is then used to assist the ADA Officer/ Coordinator with the accommodations analysis (e.g., whether the employee meets the definition of “disabled” under the ADA and ADAAA; whether the accommodations request is reasonable; whether there are other available accommodations; whether the employee is a direct threat to himself or others) and is the best evidence of the employer’s good faith participation in the interactive process. In addition, the use of checklist(s) is further evidence of all steps taken by the employer to accommodate employees. The ADA Officer/ Coordinator must be mindful to keep accurate and complete records of any and all efforts taken to provide accommodations (in whatever form) to employees.

If you are currently not using an ADA Accommodation Request Form, job descriptions and/or checklists as tools to evaluate accommodations requests, please feel free to contact us to obtain our most current version of the forms and checklists—we are happy to share and work with you to develop your system!

#3 Update Handbook and Written Policies
Companies with 15 or more employees should add an ADA policy to their handbook; an ADA policy is as essential as at-will, EEO and an anti-harassment policies.

The ADA requires employers with 15 or more employees engage in the interactive process and provide reasonable accommodations to disabled employees. Likewise, the ADA prohibits discrimination and harassment on the basis of an employee’s actual disability, being regarded as having a disability, or having a record of disability. There is no downside in including a policy in the handbook addressing and affirming the company’s compliance with the ADA and directing employees to submit all requests for accommodation to a designated ADA Officer/ Coordinator. Indeed, such a policy will prove to be valuable in responding to an ADA claim.

In addition to adding an ADA policies, you should also review your handbook to ensure all policies comply with the ADA. The EEOC is targeting companies with “no fault attendance policies” (See my recent blog article). Therefore, if you have such a policy, you must edit it to allow exceptions in the case of disabled employees.

TakeAwayThe Takeaway:
The ADA requires expeditious handling of employees’ requests for accommodation—so be ready to roll in 2015 by updating your procedures, forms, and policies now!

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TOP TAKEAWAYS FROM THE NEW EEOC ENFORCEMENT GUIDANCE ON PREGNANCY DISCRIMINATION

TopTakeaway2Our team of labor and employment attorneys has reviewed and summarized the EEOC’s new guidance from every angle. Of course, in this blog, I primarily focus on the guidance’s implication as to the ADA/ ADAA. But for completeness, here are our key takeaways from the guidance, including important points not directly relating to the ADA:

 

#1 Employers Must Accommodate Pregnant Employees With “Disabilities” Under the ADA

Prior to enactment of the ADAAA, many courts and employers took the view that pregnancy and medical conditions related to pregnancy were not “impairments” within the meaning of the ADA and therefore could not qualify as “disabilities.” The law remains that pregnancy itself is not an impairment within the meaning of the ADA and thus is never on its own a disability.

However, many women suffer from impairments related to their pregnancy which will qualify as a disability under the ADA/ADAAA. Some examples of pregnancy-related impairments qualifying as “disabilities” include:

  • Impairments of the reproductive system making a pregnancy more difficult
  • Disorders of the uterus and cervix, e.g., cervical insufficiency requiring bed rest
  • Pregnancy-related anemia (affecting normal cell growth)
  • Pregnancy-related sciatica (affecting musculoskeletal function)
  • Pregnancy-related carpel tunnel syndrome (affecting neurological function)
  • Gestational diabetes (affecting endocrine function)
  • Pelvic Inflammation
  • Symphysis pubis dysfunction
  • Abnormal heart rhythms
  • Preeclampsia
  • Depression

The EEOC identified additional pregnancy-related impairments which they believe would qualify as disabilities under the ADA. These impairments previously would have been considered as a part of a normal, run-of-the-mill pregnancy and would not have reached the level of a “disability” because they would not have substantially limited a major life activity. Therefore, according to the EEOC’s new guidance, the following pregnancy-related impairments might also constitute “disabilities,” fitting within the EEOC’s expansive view of what constitutes as a “disability” under the ADAAA:

  • Nausea causing dehydration
  • Swelling of the legs
  • “High Risk” pregnancies without an identified impairment
  • Back pain
  • Complications requiring bed rest
  • Cesarean section
  • Aftereffects of a delivery
  • Lactation

Like other pronouncements by the EEOC on accommodating disabled employees, the EEOC instructs employers they should not engage in “exhaustive analysis” of whether an impairment is a covered disability and instead construe the definition of “disability” broadly—fitting with EEOC’s advice to skip the “disability” analysis entirely and instead focus exclusively on providing reasonable accommodations.

#2 Non-Disabled Pregnant Employees Also Must Receive Reasonable Accommodation

The EEOC’s guidance dictates employees who are not “disabled” under the ADA/ ADAAA definition of “disability” are nonetheless eligible to receive the same reasonable accommodations as “disabled” employees. In this way, the EEOC is applying the “reasonable accommodation” and “undue hardship” standards on non-disabled employees, thus expanding and extending the reach of the ADA/ ADAAA to non-disabled employees. The EEOC explains: “[I]f a pregnant worker requests a change that the employer is providing as a reasonable accommodation to a coworker with a disability, the employer may evaluate the pregnant employee’s request in light of whether the change would constitute an ‘undue hardship,’ since this would amount to treating the pregnant employee the same as an employee with a disability whose accommodation request would also be subject to the defense of undue hardship.”

Therefore, employers are expected to offer benefits to pregnant workers on the same terms as they offer benefits to other workers, similar in their ability or inability to work.   In plain language—the EEOC expects employers will accommodate pregnant employees with the same accommodations offered to employees with disabilities under the ADA/ ADAAA and/or who are injured on the job. A pregnant employee is to receive the same accommodation as a disabled employee, despite the fact the pregnant employee may not be in fact “disabled” under the ADA.

#3 The PDA Protects Pregnant Employees From Negative Stereotypes

The PDA prohibits adverse treatment of pregnant women arising from stereotypes or assumptions about their job capabilities or commitment to the job. For instance, an employer might refuse to hire a pregnant woman based on an assumption that she will have attendance problems or leave her job after the child is born; this is an adverse decision based on a stereotype or assumption and thus violates Title VII.

Based on this reasoning, the EEOC likewise concludes an employer cannot require an employee to take a leave of absence even out of genuine concern for the fetus. While the EEOC acknowledges that is some “rare” circumstances an employer may claim excluding pregnant or fertile women from a certain job is lawful because non-pregnancy is a bona fide occupational qualification (BFOQ), the EEOC warns that BFOQ defense is an “extremely narrow exception . . . .” The defense cannot be based on “fears of danger to the employee or her fetus, fears of potential tort liability, assumptions and stereotypes about the employment characteristics of pregnant women such as their turnover rate, or customer preference.”

#4 The PDA Protects Past and Future Pregnancies

An employee does not have to be currently pregnant to have a viable claim under the PDA. For instance, an employee may claim she was subjected to discrimination based on past pregnancy, childbirth, or related medical conditions. The EEOC’s position is a causal connection between a claimant’s past pregnancy and the challenged action will likely be found when there is close timing between the two, e.g., an employee is discharged during her pregnancy-related medical leave. The EEOC maintains even without a close timing, an employee can maintain a claim of pregnancy discrimination; a lengthy time difference between a pregnancy and the challenged action will not foreclose a finding of pregnancy discrimination when there is evidence that pregnancy, childbirth, or related medical conditions motivated the action.

Likewise, women cannot be discriminated against with regard to job opportunities and benefits because they might become pregnant. Title VII prohibits an employer from discriminating against an employee because of her intention to become pregnant, infertility treatments, and use of contraceptives.

#5 The PDA Protects Abortion

Title VII protects women from adverse employment actions for having an abortion or contemplating having an abortion. Title VII would similarly prohibit adverse employment actions against an employee based on her decision not to have an abortion.

#6 EEOC’s Health Insurance Mandates

The EEOC’s position is an employer would violate Title VII by providing health insurance that excludes coverage of prescription contraceptives but otherwise provides comprehensive coverage. To comply with Title VII, an employer’s health insurance plan must cover prescription contraceptives on the same basis as prescription drugs, devices, and services that are used to prevent the occurrence of medical conditions other than pregnancy. For example, if an employer’s health insurance plan covers preventative care for medical conditions such as vaccinations, physical examinations, prescription drugs preventing high blood pressure or to lower cholesterol levels, and/or preventative dental care, then prescription contraceptives must also be covered.

#7 Best PracticesBestPractices

The EEOC issued a list of suggested “best practices” for employers, including:

  • Developing a written policy addressing the PDA and ADA
  • Training managers regarding the rights and responsibilities under the PDA
  • Drafting written job descriptions containing specific, job-related qualification standards, duties, functions, and competencies to minimize the potential for gender stereotyping and discrimination on the basis of pregnancy, child birth, and related medical conditions
  • Revising workplace policies limiting employee flexibility, such as fixed hours of work and mandatory overtime, to ensure they are necessary for business operation
  • Reviewing hiring procedures to give the same weight to cumulative relative experience that would be given to workers with uninterrupted service
  • Ensuring employees who are on leaves of absence due to pregnancy, childbirth, or related medical conditions have access to training, if desired, while out of the workplace
  • Monitoring compensation practices and performance appraisal systems for patterns of potential discrimination based on pregnancy, and ensuring compensation and performance appraisals are based on employees’ actual job performance and not on stereotypes
  • Reviewing light duty policies to ensure any light duty policy can be accessed by pregnant employees

Questions about the new guidance, its requirements, implications or enforceability? Please do not hesitate to contact us.

IS THE NEW EEOC PREGNANCY GUIDANCE ENFORCEABLE?

The EEOC’s new pregnancy enforcement guidance is controversial.  PregnantWorker

The guidance pushes and expands the boundaries of the law in several important respects. For instance, the EEOC now requires employers to make the same reasonable accommodations available for non‑disabled pregnant employees as it does for disabled employees under the ADA/ ADAAA. Applying the “accommodations” and “undue burden” standards outside of the context of employees who are actually “disabled” under the ADA/ ADAAA is unprecedented and clearly marks an expansion of the law. Likewise, the EEOC dictates an employer must offer prescriptive contraceptive coverage if it offers comprehensive health insurance which includes coverage for preventative care for medical conditions such as vaccination and prescription drugs that prevent high blood pressure or lower cholesterol levels. The EEOC’s position is an abrogation and departure from an Eighth Circuit case holding otherwise. See Union Pac. R. R. Employment Practices Litig., 479 F.3d 936 (8th Cir. 2007). In a footnote, the EEOC simply states it “disagrees with the conclusion” of the Eighth Circuit case. The EEOC’s position on mandatory contraceptive coverage may also run afoul of the recent Supreme Court case, Burwell v. Hobby Lobby Stores, Inc., et.al, 134 S.Ct. 2751 (2014); this critical issue is only given brief mention in a footnote.

If there is any doubt of the controversy surrounding the new pregnancy guidance, just look to the Commission itself. The final vote on the guidance was 3-2 in favor. Commissioners Lipnic and Barker issued public statements disapproving of the EEOC guidance. In particular, Commissioner Lipnic questioned the timing of the guidance (right before the Supreme Court is set to rule on a PDA case, Young v. United Parcel Service, Inc., 707 F.3d 437 (4th Cir. 2013), cert. granted, 86 USLW 3602 (U.S. July 1, 2014)), and without first making the EEOC’s Guidance available for public comment.

ISSUE: Are all of the provisions of the guidance enforceable, especially the EEOC’s new mandates?

Consider the recent Supreme Court case of Vance v. Ball State, 133 S.Ct. 2434, 2449-50 (2013), wherein the Supreme Court rejected the EEOC’s “nebulous” definition of “supervisor” as outlined in its enforcement guidance. In Vance, the Court characterized the EEOC’s guidance as a “study in ambiguity.” The Court held it would not defer to the EEOC guidance because the guidance did not have the “power to persuade,” which “depend[s] upon the thoroughness evident in its consideration, the validity of its reasoning, [and] its consistency with earlier and later pronouncements.” Simply put, the EEOC did not find the EEOC Guidance persuasive and thus was not bound to it.

The EEOC reached the same conclusion in another employment case issued last year, University of Texas Southwestern Medical Center v. Nassar, 133 S.Ct. 2517 (2013). Again the Court rejected the EEOC’s enforcement guidance as to the causation standard to be applied to a Title VII retaliation case. The Court reasoned the guidance at issue lacked the “persuasive force” to be afforded deference under the standard set forth in Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944). The Court specifically found the guidance did not address the interplay between the specific statutes at issue and its reasoning was circular and unsupported.

TakeAway

The Takeaway:  The controversial aspects of the EEOC’s guidance will likely be challenged in Court, and may not be afforded deference as indicated by the Supreme Court’s recent hostility toward the EEOC’s guidances.

 

SECOND–GUESSING EMPLOYEE’S DOCTOR

Here’s a common scenario: In the course of the interactive prCrazyDoctor_300x200ocess, while evaluating an employee’s ADA request for accommodation and/or FMLA medical certification, you have reason to doubt the treating physician’s diagnosis, prognosis, or recommendations for intermittent leave and reasonable accommodation. Maybe you think the doctor is “fudging” to help her patient receive more generous leave than what is truly medically necessary. Perhaps the doctor is a friend of the employee. Or maybe you think the doctor is just plain wrong. Whatever leads you to doubt and second guess the treating physician’s certification, simply disregarding it is a dangerous choice.

This issue was recently demonstrated in Spurling v. C& M Fine Pack, Inc., ___ F.3d____, 2014 WL 107968 (7th Cir. Jan. 13, 2014).

Relevant Case Facts: An employee worked the night shift, “began to exhibit a pattern of decreased consciousness and alertness” (legal speak for she fell asleep on the job), and was disciplined accordingly. Following the final written warning for the offense, the employee met with her supervisors and told them her sleep issues were caused by medication her doctor had prescribed; she produced a doctor’s note stating: “[Patient] was recently asked to discontinue medicine related to her passing out—please excuse symptoms [at] work.” The employer correctly surmised this was a request for accommodation under the ADA.

Employer responded by providing the employee with the ADA documentation for her doctor to complete. (Check!) Her doctor timely did so, indicating the employee had a mental or physical disability covered by the ADA; recommending periods of scheduled rest during her shift as an accommodation; and indicating “[additional] medical work up” was in progress. (Check!)

The employer elected not to engage in the interactive process with the employee to discuss reasonable accommodations (Oh, no—trouble ahead!). Instead, the employer terminated her (Trouble indeed!!).

The reason? The HR team did not believe the employee’s doctor. The HR Manager testified the doctor’s notation stating the employee was suffering from a condition covered by the ADA was “insufficient to establish that she had a disability.” Likewise, the Vice President of HR testified: “I don’t believe that a doctor is in a position to make that determination. It is his opinion.” (This is the proverbial kiss of death and nail in the coffin in this case!)

The result? The Seventh Circuit held the employer knew of the plaintiff’s medical condition and request for accommodation before the termination decision had been made and yet took an “aggressive approach” by terminating her before accommodating her, or at least engaging the interactive process. Here’s what the Court said:

  • Rather than collaborate with [the employee] or her doctor to find a reasonable accommodation, [the employer] chose to turn a blind eye and terminate her. It did not seek further clarification from either [the employee] or her doctor and disregarded the medical evaluation altogether. This is hardly engaging with [the employee] to determine if a reasonable accommodation could be made. . . . The evidence suggests that a reasonable accommodation was readily available; [the employee] simply needed further medical testing and prescription to control her narcolepsy. . . . [The employer] properly began the interactive process as envisioned by the ADA, but failed to carry it through.

THE TAKEAWAY:

NEVER ignore or disregard a doctor’s certification and recommendations in an ADA interactive questionnaire, even if you think the doctor’s opinion is absurd, outlandish, rubbish and ludicrous!

Instead, take (and document) these steps:
1. Meet with the employee as a part of the interactive process. Ask the employee specifics on the requested accommodation. In this case, at minimum ask how many rest breaks she anticipating needing per shift; how long each break would last; the anticipated timeline for the additional medical workup mentioned in the certification.

2. Have the employee sign a Medical Authorization so that you contact the treating physician with follow up questions about the disability and accommodations.

3. If it wasn’t already covered on the ADA questionnaire, ask the doctor about the general nature of the mental or physical impairment; whether the employee is limited in a major life activity; how long the impairment has or is expected to last; clarification regarding the recommended rest periods; whether the employee presents a risk of danger to herself or others working while prone to narcolepsy; the timeline for the additional medical workup; the probable duration of the disability and/or recommended accommodations.

4. Still don’t believe the doctor’s diagnosis and recommendations? Can you require a second opinion? Probably not. Unlike the FMLA, the ADA regulations do not explicitly provide for a second opinion process. However, the EEOC stated in its enforcement guidance (Insert link): “The ADA does not prevent an employer from requiring an employee to go to an appropriate health professional of the employer’s choice if the employee initially provides insufficient information to substantiate that s/he has an ADA disability and needs a reasonable accommodation.” The EEOC’s caveat suggests an employer may not send the employee to the employer’s health care professional until the employee is first given the change to bring in documentation from his/her personal health care professional, and only if the employee’s documentation from his or her health care professional is insufficient to document a disability. But once the employee’s doctor provides sufficient information to substantiate the disability and need for reasonable accommodation, it appears the EEOC does not allow for a second opinion, and, instead the employer must accept the opinion of the employee’s physician.

5. Make a decision regarding the requested accommodation(s)—and then communicate it to the employee and document it for the file! In this case, the Court concluded: “The evidence suggests that a reasonable accommodation was readily available; [the employee] simply needed further medical testing and a prescription to control her narcolepsy.” The Court’s statement doesn’t provide guidance as to what exactly the reasonable accommodation would be, e.g., allow rest periods during the period of medical testing and until the narcolepsy was controlled by medication, leave of absence while the medical testing was being conducted, or a reassignment of shift? However, the takeaway is the employer must participate in the interactive process and make a determination regarding the requested accommodation(s)—even if the ultimate determination is the accommodation is not reasonable or creates an undue hardship (a topic for another day).

One Last Thought: This case touches on the related topic of what to do when an employee claims a disability and requests an accommodation for the first time in response to discipline—exactly what happened here. We’ll cover that important issue in an upcoming post!

YES, VIRGINIA, EMPLOYEES STILL NEED TO BE “DISABLED” TO TAKE ADVANTAGE OF THE ADA

  Since the ADA Amendments Act, the EEOC has been instructing employers to “skip over” the analysis of whether an employee is  “disabled” under the ADA (e.g., has a mental or physical impairment substantially limiting a major life activity), and instead go straight to the interactive process and offering accommodations.  Indeed, in crafting and enacting the ADA Amendment Act, Congress specifically intended “the primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations [ ] and . . .  that the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis.” 42 U.S.C. § 1201 (note).

In Neely v. PSEG Texas, Limited Partnership, 735 F.3d 242 (5th Cir. 2013), the plaintiff adopted the EEOC’s position and argued the Court erred in submitting a jury question regarding disability—“Was [plaintiff] a qualified individual with a disability?”—as a predicate to a finding of discrimination regarding his termination claim and failure to accommodate claim under the ADA.   Plaintiff suggested under the textual changes to the ADA by the ADA Amendments Act, it is now unnecessary for a plaintiff to prove, and the jury to find, the plaintiff was “disabled” under the ADA.

In what seems an obvious but nonetheless an important and positive clarification for employers, the Fifth Circuit disagreed and held in order for employees to avail themselves of the ADA, they must in fact be “disabled.”  The Fifth Circuit ruled that although the ADA Amendments Act expresses Congress’s intention to broaden the definition and coverage of the term “disability,” it  “in no way eliminated the term from the ADA or the need to prove a disability on a claim of disability discrimination” or a claim of failure to accommodate.  The Court states:

[B]ecause the jury instruction definition of “disability” and “qualified individual” properly conform to the ADAAA (and because the term “disability,” even in its broadest sense, remains to be proved in claims under the ADA), there is no abuse of discretion—or even error—in the use of the terms in the . . . verdict question.

Id. at 246-47.

THE TAKEAWAY:

Employers should still examine whether an employee meets the “disability” definition before engaging in the interactive process and offering accommodations.   Litigators should continue to argue plaintiffs do not meet the definition of “qualified person with a disability,” and thus do not have the protection of the law.

DO “NO FAULT” ATTENDANCE POLICIES VIOLATE THE ADA?

attendancepicEEOC Targets “No Fault” Attendance Policies

The EEOC has recently filed several suits targeted so-called “no fault” attendance policies.  See e.g., E.E.O.C. v. Lifecare Medical Services, Inc., 5:13-cv-01447 (N.D. Ohio) (Complaint filed July 1, 2013, alleging “Defendant has had and continues to have an attendance policy which provides for progressive discipline, up to and including discharge, for all absences.  Defendant’s policy has no exceptions for individuals with disabilities whose absences are caused by their disabilities and the policy does not have any provision for reasonable accommodation of such individuals covered under the ADA. Defendant’s application of its attendance policy to [Plaintiff] denied him leave as a reasonable accommodation, in violation of the ADA”); E.E.O.C. v. CTI, Inc., 4:13-cv- 01279 (D. Ariz.) (Complaint filed on September 30, 2013, alleging defendant’s “maximum leave policy” violates the ADA because, under defendant’s “maximum leave policy, as administered, before discharging employees with disabilities, defendant . . . does not initiate the interactive process to identify the precise limitations resulting from their disabilities and potential reasonable accommodations that could overcome those limitations); E.E.O.C. v. Interstate Distributor Company, 1:12-cv-02591 (D. Colorado) (Complaint filed September 28, 2012, alleging defendant employer maintained a maximum leave policy requiring employees to return to work within 12 weeks or be terminated and did not offer accommodations to the policy for disabled employees); See also E.E.O.C. v. Vicksburg Healthcare, LLC, 5:13-cv-00189 (S. D. Miss.) (Complaint filed on September 30, 2013, alleging defendant terminated employee at the end of her 12-week FMLA leave without first engaging in the interactive process); E.E.O.C. v. AR&T Corp., 1:12-cv-00402 (S.D. Indiana) (Complaint filed March 29, 2012, alleging defendant-employer improperly discharged employee under attendance policy); E.E.O.C. v. GGNSC Administrative Services, LLC, 2:12-cv-00238 (E.D. Wis.) (Complaint filed March 12, 2012, alleging plaintiff was not provided additional leave as a reasonable accommodation).

To date, no court has found a “no fault” attendance policy illegal per se.  However, courts repeatedly warn employers with “no fault” attendance policies they are required to consider reasonable accommodation to the policy, e.g., demonstrating the employer engaged in an individualized, interactive process to consider modifying the leave policy to extend leave to a reasonable time for a qualified, disabled employee to return to work.  So far the case law provides employers are not required to extend the leave indefinitely, e.g., if an employee is unable to provide an estimated date he or she could return to work.

What is a “No Fault” Attendance Policy?

Typically, a “no fault” attendance policy provides an employee with a certain amount of leave (e.g., three, six or twelve months), and, at the end of the time period, mandates termination regardless of the reason for the absence.   Here is a sample “no fault” attendance policy:

A regular employee who becomes ill or injured and whose claim of illness or injury is supported by satisfactory medical evidence will be granted a leave of absence to cover the period of such illness or injury up to a maximum of six months.  Satisfactory medical evidence, and by consent of the Company, such a leave may be extended an additional six months.

*    *    *   *

Upon the expiration of a leave of absence, the employee’s employment with [Company] will be terminated.

Gantt v. Wilson Sporting Goods Company, 143 F.3d 1042, 1045 (6th Cir. 1998) (Emphasis added).

Here is another sample, entitled the “12-Month Policy” by the employer:

The following will result in your separation from employment; and will end your associate service when you . . . [a]re not actively employed by [Defendant] for any reason for twelve (12) consecutive months unless on approved leave of absence due to an occupational injury or illness, serving the armed forces, on an educational leave, or laid off.

White v. Honda of America Mfg., Inc., 191 F.Supp.2d 933, 938 (S.D. Ohio 2002

Interestingly, the Fifth Circuit has distinguished between a “no fault” policy and a policy which limits leave but does not mandate termination at the end of the leave period.  In Weber Aircraft, Inc. v. Intern. Broth. Of Teamsters Local 767 ALF-CIO, 33 Fed. Appx. 706, 2002 WL 433147, at *1 (5th Cir. March 8, 2002), the Fifth Circuit determined the policy contained in the collective bargaining agreement was not a “no fault” attendance policy because it does “not by its own terms state that discharge is automatic.” Weber Aircraft, 2002 WL 433147 at *1.

E.E.O.C. Position on “No Fault” Attendance Policies

The EEOC has not taken the position in its guidances or published directives that a “no fault” attendance policy is per se illegal.  Instead, the EEOC’s position has seemed to be “no fault” attendance policies cannot be applied without exception and, instead, must be modified to accommodate disabled employees who seek an accommodation.

The EEOC addresses “no fault” attendance policies in its EEOC Enforcement Guidance on Reasonable Accommodations and Undue Hardship, No. 915.002 (10/17/02):

17. May an employer apply a “no-fault” leave policy, under which employees are automatically terminated after they have been on leave for a certain period of time, to an employee with a disability who needs leave beyond the set period?

No.  If an employee with a disability needs additional unpaid leave as a reasonable accommodation, the employer must modify its “no-fault” leave policy to provide the employee with the additional leave, unless it can show that:  (1) there is another effective accommodation that would enable the person to perform the essential functions of his/her position, or (2) granting additional leave would cause an undue hardship. Modifying workplace policies, including leave policies, is a form of reasonable accommodation.

See also Gibson v. Lafayette Manor, Inc., 2007 WL 951473, *7 (W.D. Pa. March 27, 2007) (citing EEOC Enforcement Guidance).

Appellate Court Cases Analyzing “No Fault” Attendance Policies  

Courts generally uphold a “no fault” attendance policy as non-discriminatory. See Gantt v. Wilson Sporting Goods Company, 143 F.3d 1042 (6th Cir. 1998); Melange v. City of Center Line, 482 Fed. Appx. 81, 2012 WL 1959319, * 4 (6th Cir. 2012); Kolovos v. Sheahan, 1999 WL  1101919, at *7 (N.D. Ill. Nov. 30, 1999).  However, it is clear the ADA obligates an employer to consider modification of or exceptions to the “no fault” attendance policy as reasonable accommodation for disabled employees. However, the disabled employee must request such an accommodation (extension of the leave or exception to automatic termination); an employee’s failure to request this as an accommodation (or any accommodation) can be fatal to a claim. Gantt, 143 F.3d at 1047; Melange, 2012 WL 1959319, at * 4; E.E.O.C. v. Sisters of Providence Hospital, 1999 WL 691164, at *1 (9th Cir. 1999).

Employer Loses When It Fails to Accommodate a “No Fault” Attendance Policy

First Circuit Case

In Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638  (1st Cir. 2000), the First Circuit rejected an employer’s reliance on its “no fault” attendance policy mandating termination after one year of medical leave.  The plaintiff had taken leave for treatment of breast cancer.  The defendant-employer deemed plaintiff’s disability to have begun in March 1995, when plaintiff underwent surgery to remove a nodule in her neck; following surgery, plaintiff received short-term disability benefits through March 19, 1996, and thereafter began receiving long-term disability benefits.  On April 9, 1996, plaintiff’s doctors certified plaintiff would be able to return to work on July 30, 1996.  However, on June 10, 1996, the employer’s human resources director notified plaintiff the company was terminating her because her one-year period for job reservation had elapsed as of March 1996.  Plaintiff asked for her job to be reserved until her release date to return to work (July 30th), to no avail.  Plaintiff was ultimately released to return to work on August 22, 1996.

Plaintiff sued the employer for failure to accommodate her disability.  The employer took the position plaintiff was terminated because her one year of leave had expired; the company “embrac[ed] a per se rule that any leave beyond its one-year reservation period was too long.” Id., at 649.  The court held the Plaintiff’s requested accommodation of extending the one-year leave procedure by less than two months was reasonable; further, the employer had no evidence such brief extension would create an undue hardship. The Court stated: “The company’s apparent position that the ADA can never impose an obligation on a company to grant an accommodation beyond the leave allowed under the company’s own leave policy is flatly wrong under our precedent.” Id. at 646.  The Court ruled there was no undue burden to the employer because: (1) plaintiff’s leave was unpaid leave; (2) plaintiff’s essential job functions were fulfilled satisfactorily by temporary employees; (3) there was no financial burden to the employer; and (4) there was no business pressure to fill plaintiff’s slot with another permanent employee, as evidenced by the fact that the employer never did fill the slot. The Court held in this situation, “retaining the ailing employee’s slot while granting unsalaried leave may be a reasonable accommodation required by the ADA.” Id. at 650.  The Court then noted other facts may render a request for extended leave unreasonable, e.g., where the employee gave no indication as to when she might be able to return to work and instead demanded the job be held open indefinitely; where the employee’s absences from work were erratic and unexplained; and  where,  upon the employee’s return to work, she would be unqualified. Id.

Eleventh Circuit Case

In Holly v. Clairson Industries, L.L.C., 492 F.3d 1247 (11th Cir. 2007), the employer instituted a “no fault” attendance policy, wherein each tardy, partial absence or absence from work counted as either “one half occurrence” or an “occurrence”; the policy provided for a progressive series of verbal and written warnings, and immediate termination upon the accrual of nine “occurrences” within a one-year period.  The policy also specifically provided employees with “American with Disability Act situations are not exempt from this policy.”

Plaintiff, a paraplegic, was terminated under the policy because of his tardiness. Plaintiff argued the employer failed to reasonably accommodate his disability by modifying the no-fault attendance policy; plaintiff argued he should have been allowed to occasionally clock in to work late and make up any lost time during breaks or overtime because his disability often caused him to be tardy.  Further, plaintiff argued he had been allowed this type of accommodation before the “no fault” policy was instituted. The Eleventh Circuit agreed, finding based upon the testimony of plaintiff’s supervisors, strict punctuality was not an “essential” function of plaintiff’s job.  Further, the employer should have considered plaintiff’s request for an accommodation and analyzed whether it would have presented an undue hardship.  The Court held the employer was “not insulated from liability under the ADA by treating its non-disabled employees exactly the same as its disabled employees. . . Allowing uniformly applied, disability-neutral policies to trump the ADA requirement of reasonable accommodations would utterly eviscerate the ADA requirement.”

District Court Case

See also, Shim v. United Air Lines, Inc., 2012 WL 6742523 (D. Hawaii 2012) (citing employer’s “no fault” leave of absence policy stating, “Failure to return to active duty before the termination of your three (3) year Non-Occupational Medical Leave of Absence will result in your administrative separation from the Company. “ Questions of fact regarding whether plaintiff was in violation of the LOA policy and whether an extension to the LOA policy as an accommodation would have caused an “undue hardship” to the employer prevented the Court from entering summary judgment in the employer’s favor.)

THE TAKEAWAY:

As of now,  “no fault” attendance policies are legal and permissible, but as a “best practice” (and to avoid EEOC scrutiny), an Employer should:

  1. Modify the Policy  by removing a mandatory termination provision and affirmatively stating in appropriate situations the company will consider whether an extended period of medical leave is a reasonable accommodation; and,
  2. Be Prepared to engage in the interactive process and offer reasonable accommodation to the policy for qualified, disabled employees.