EEOC Takes Aim at Leave Policies that Violate ADA

In 1990, George H.W. Bush signed the American Disabilities Act (ADA) into law. With a stroke of his pen, all employers with 15 or more employees were required to make reasonable accommodation for the needs of persons with disabilities. They were also prohibited from discriminating against them in employment, public services, public accommodations, and telecommunications. The Equal Employment Opportunity Commission (EEOC) assumed jurisdiction for enforcement. In the first 10 years alone, the Commission successfully resolved 91 percent of 375 ADA lawsuits brought against employers.

The issues surrounding this important civil rights legislation were complex. To that end, the EEOC Compliance Manual and enforcement guidelines interpret key ADA provisions, including but not limited to pre-employment inquiries and medical examinations, psychiatric conditions, workers’ compensation benefits, requirements to satisfy the mandate for reasonable accommodation and the meaning of the term disability.

Many employers fail to take account of the ADA when administering their leave policies (sick time, personal time off, and leaves of absences). By law, employees with disabilities must be provided with access to leave on the same basis as all other similarly-situated employees. For example, if the leave policy states doctor notes are only required for 4 or more missed shifts, an employee with a history of depression may not be required to submit a psychiatric assessment for a 3-day absence due to stress. Should the absence extend to 4 days, the employee would need to produce suitable documentation.

In addition to providing equal access to standard leave policies, employers must be sensitive to requests that fall within the realm of “reasonable accommodation” of employee disabilities. Such requests may fall within existing employer policies and, therefore, require no special treatment. However, an employer must consider providing unpaid leave as a reasonable accommodation if it would enable the employee to continue to perform his or her duties at work and such leave would not impose undue hardship on the organization. In such cases, the employer is obliged to engage in an interactive process with the employee to determine:

• The reason for the leave – e.g., surgery and recuperation, medical treatment (e.g., physical therapy), adjustment to a new regimen, training of a new service animal.
• The nature of the leave – e.g., a block of time (weeks or months) or intermittent (e.g., one day a week, occasional days throughout the year).
• The expected date when the accommodation would end.

The EEOC has vowed to enforce all provisions of the ADA vigorously and pursue damages from those who were in violation. A recent case punctuates the Commission’s stance with regard to employee leave. Ninety current and former UPS employees alleged that the company’s maximum leave policy violated ADA requirements. Filed in 2009, an EEOC lawsuit accused UPS of enforcing an inflexible leave policy by terminating employees automatically after 12 months of leave. It also charged the company with failure to utilize an interactive process as required under the law. After years of litigation, UPS paid $2 million to the affected employees. Similar cases brought against Lowes and Sears resulted in $8.6 million and $6.2 million in damages, respectively.

The lesson every employer should take away from the UPS case is that “having a multiple month leave policy alone does not guarantee compliance with ADA.” In the wake of the UPS ruling, Chicago based attorney Brian Bulger told the Chicago Tribune that is was surprising that “so many employers have not gotten the message. If they have just that leave limit without a process that an exception can be made, they are in trouble.”

In 2014, the EEOC recovered over $109.2 million in behalf of employees for whom reasonable accommodation had not been made for leave. The top three reasons employers found themselves in the EEOC’s crosshairs were inflexible leave policies, failure to recognize an accommodation request, and failure to engage in an interactive process to address the employees’ requirements. In a recent survey, 70 percent of employers reported difficulty or extreme difficulty in recognizing when an employer can deny an ADA leave request. That’s an especially chilling statistic given EEOC’s fervor for enforcing the law.

The ACA legislation is complex, and the provisions governing employee leave demand a level of expertise that confounds most organizations. For that reason, 34 percent of employers with 50 or more employees outsource Family Medical Leave Act (FMLA) administration to third-party experts. Forty-five percent of employers with 1,000 and more employees do so. These vendors boast satisfaction rates upwards of 86 percent. Many of these third party experts also offer ADA Leave Management services.

While a few simple guideposts cannot suffice to protect the company from EEOC action, they are a good starting point to move the organization in the right direction.

Please contact us if you would like to discuss your leave policies and institute provisions to ensure you comply with your obligations under the FMLA and ADA. We are here to help!