by Marti Cardi, Esq. - Vice President, Product Compliance
& Gail Cohen, Esq. - Director, Employment Law And Compliance
May 23, 2016
Employers, if you haven’t fixed this issue yet, get out from under that rock!
If an employee with a disability exhausts leave time provided by company policy or by a law such as the FMLA, you have two obligations.
First, consider even more leave as a reasonable accommodation.
Second, consider reasonable workplace accommodations to allow the employee to return to work
It’s that simple.
As announced by the EEOC on May 13, 2016, home improvement giant Lowe’s has agreed to pay $8,600,000 to affected employees as part of a consent decree entered into with the EEOC in a federal district court in California. The EEOC claims that Lowe’s violated the ADA by terminating employees with a disability after failing to provide them reasonable accommodations when their medical leaves of absence exceeded Lowe’s 180-day (and, subsequently, 240-day) maximum leave policy.
And it’s not just about the money. The consent decree agreed to by Lowe’s in this case includes some very typical additional requirements, all enforceable by court order. The four-year consent decree settling the suit requires that Lowe’s:
- Retain a consultant with ADA experience to review and revise company policies as appropriate;
- Implement effective training for both supervisors and staff on the ADA;
- Develop a centralized tracking system for employee requests for accommodation;
- Maintain an accommodation log;
- Post documentation in its workplaces related to the settlement; and
- Submit regular reports to the EEOC verifying compliance with the decree.
Thus, Lowe’s ends up not only paying the agreed-upon amount of damages, but also incurs significant expenses (for example, attorneys’ fees) and business disruptions during the EEOC’s investigation and in complying with the terms of the consent decree for four years.
Two types of policies are on the EEOC’s radar. An employer’s obligation to provide more leave than offered by company policies or required by law has received much recent attention. Why, just this month the EEOC released a new Resource Document entitled Employer-Provided Leave and the Americans with Disabilities Act. While the Resource Document did not break any new ground (no, the EEOC still won’t say how long a leave can be before it becomes an unreasonable accommodation), it does pull together in one handy place all existing EEOC guidance on the issue, including assessment of extra leave as an undue hardship. Our blog post on the Resource Document can be found here. Meantime, the EEOC is focusing on the following:
Maximum or inflexible leave policies (sometimes referred to as “no fault” leave policies) take many different forms. A common policy, especially for entities covered by the FMLA, is a flat limit of 12 weeks for both continuous and intermittent leave. Some employers not covered by the FMLA set lower overall caps. Others tie the maximum leave to the duration of short-term disability benefits. Any inflexible cap may result in an ADA violation because it does not allow for the interactive process and individualized consideration of whether additional leave or some other reasonable accommodation will enable the employee to return to work.
100% recovered or healed policies are those that require an employee with a disability to have no medical restrictions – that is, be “100%” healed or recovered – before returning to work. These also have huge potential to violate the ADA because the employer does not engage in the interactive process to discover whether the employee can perform essential functions with on-the-job reasonable accommodation(s).
Lots of companies got it wrong in the past. Many employers have been the subject of EEOC investigations and, ultimately, a pricey consent decree. Here are some of the bigger-ticket resolutions:
||Policy /Practice in Violation of ADA
||Terminating employees whose
need for medical leaves of
absence exceeded Lowe’s
leave policy (180 days,
subsequently 240 days)
||Assessing attendance points
for medically-related absences; not allowing use of intermittent
leave or extension of a leave
of absence as an ADA reasonable accommodation
|Princeton HealthCare System
||Limiting medical leave of absence to maximum of 12 weeks:
- employees FMLA-eligible
terminated after 12 weeks\
- employees not FMLA-eligible terminated
after short absence
Requiring certification of
100% recovery upon return
to work rather than
considering return to
work with a reasonable ADA accommodation
- Maximum-leave policy
limiting the amount of
medical leave an
employee could take
- Policy requiring all
employees to disclose
personal and confidential
medical information in
order to be approved
for sick leave
|Interstate Distributor Co.
- Limiting medical leave
of absence to maximum
of 12 weeks
- Requiring certification
of 100% recovery upon
return to work rather than considering return
to work with a reasonable
| Verizon Communications
|| $20 million
||Failing to make
exceptions to “no fault”
attendance plans for
individuals with disabilities
as an ADA accommodation
| Supervalu, Inc., Jewel Food Stores, Inc. etc.
|| $3.2 million
with disabilities who were
not 100% recovered at the
end of medical leaves of
absence rather than
considering return to
work with a reasonable
| Sears, Roebuck and Co.
|| $6.2 million
of workers’ compensation
leave without engaging
in the interactive
to consider workplace
leave extension as an
Pings for employers: We provided pointers for employers in our last blog post so we won’t repeat, but given the size of the potential price tag we suggest that you go back and read again.
MATRIX CAN HELP! Matrix’s ADA Advantage leave management system and our dedicated ADA accommodation team helps employers maneuver through the accommodation process – including spotting noncompliant leave policies during implementation of our services. We will initiate an ADA claim for your employee, conduct the medical intake and analysis if needed, manage the interactive process, assist in identifying reasonable accommodations, document the process, and more. Contact Matrix at 1-800-866-2301 to learn more about these services.