When to Put the Brakes on Leaves of Absences and Other Accommodations

02 June 2014 Labor & Employment Law Perspectives Blog

As most employers know, the Americans with Disabilities Act (ADA) requires employers to provide reasonable accommodations to employees with qualifying disabilities to help them perform their jobs. Easier said than done. Employers continue to struggle with the extent they must go to offer reasonable accommodations to comply with the law. And the stakes are high too. Failing to thoughtfully consider accommodations on a case-by-case basis often leads directly to unwanted litigation.

Earlier this month, for instance, the U.S. Equal Employment Opportunity Commission (EEOC) filed a lawsuit against a nationwide auto parts retailer alleging that the employer violated the ADA when it failed to provide reasonable accommodations to several of its employees with qualifying disabilities. In the complaint filed in federal court in Chicago, the EEOC claims that the parts retailer’s “no fault” attendance policy does not permit exceptions for disability-related absences as reasonable accommodations. For example, three employees named in the complaint accumulated points and were discharged because of absences related to their disabilities, which included diabetes, migraines, and severe back pain. In each case, the employees requested to have such absences excused or covered by accrued vacation time, when they apparently had exhausted other forms of leave, such as leave under the Family and Medical Leave Act (FMLA).

The EEOC faulted the employer for discharging disabled employees under the “no fault” attendance policy despite them having a modest number of disability-related absences.

The EEOC also alleges the employer violated the ADA by failing to provide reasonable accommodations for two employees during their employment. In one case, the company allegedly refused to allow an employee to sit for those portions of his shift that did not require standing work. The EEOC also alleges that company refused to modify an employee’s work schedule to reduce the likelihood of migraines.

To remedy the alleged violations, the EEOC seeks a permanent injunction preventing the company from continuing to utilize a “no fault” attendance policy that violates the ADA, and ordering it to provide reasonable accommodations in accordance with ADA requirements. As to the named employees, the EEOC demands reinstatement, plus back pay and future pecuniary losses, punitive damages, and costs incurred in the litigation.

This lawsuit highlights that employers must be thoughtful and thorough in analyzing disability accommodation issues. First and foremost, employers must avoid “blanket policies” that could negatively impact disabled employees. For instance, “no fault” attendance polices must carefully consider whether employees who might have a “disability” as defined by the ADA are incurring points or occurrences for absences related to their medical conditions. Just as FMLA protected absences should not count under a no-fault policy, so too should medically related absences not be counted under a no-fault attendance policy, when limited time off might be thought of as a reasonable accommodation to help a disabled employee perform his or her job.

Employers must also consider the relevant facts and potential accommodations in cases with employees having medical restrictions. For instance, if an employee needs to sit and stand intermittently, the employer should consider whether it is possible to allow an employee to sit when not required to perform the job. Employers must engage in an interactive dialogue or the interactive process with the employee to determine the limits of potential accommodations. By avoiding blanket policies and thinking through reasonable accommodation issues, employers can better minimize the risks of liability and increase chances of successfully defending ADA claims.

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