©iStock.com/Stefano Lunardi

This is another post in my series on mistakes employers make. In this post, I discuss employer leave policies–specifically those that impose maximum leave amounts and “no fault” attendance policies–and why they can end up unlawfully denying employees their rights. While this post covers obligations under both the Americans with Disabilities Act (ADA) and the Fair Employment and Housing Act (FEHA), I will refer to the ADA only with the understanding that it sets the “floor of protection” under the FEHA (and the FEHA, in fact, affords workers greater protections).[1]

An Inflexible Maximum Leave Policy Violates the ADA

Many employers have “maximum leave” policies, under which employees are automatically terminated after they have been on leave for a certain period of time. These can violate the ADA. Simply put: a maximum-leave policy does not satisfy an employer’s obligation to engage in the interactive process and provide a reasonable accommodation to an employee who needs additional leave. This is the case even if the amount of leave time the employer permits is seemingly generous (for example, permitting employees on short-term disability to be out on leave for a year).[cut-rss]

Let me explain: The ADA requires that an employer assess each disability accommodation request on a case-by-case basis. This means that it is unlawful to simply apply an inflexible maximum leave policy to an employee with a disability who needs more leave. Instead, the employer must provide additional leave unless granting the time off would cause an undue hardship or there is another effective accommodation that will allow that employee to work. The employer needs to modify its workplace and leave policies to comply with the ADA’s reasonable accommodation requirements.

The EEOC has vigorously challenged maximum-leave policies as violating the ADA. For example, Sears had a maximum one-year leave policy in which any employee who did not return to work at the end of the year was automatically terminated. The EEOC filed suit against Sears in 2004. In 2009, after extensive litigation, the EEOC entered into a $6.3 million consent decree with Sears, which among other things required Sears to:

• Designate a core group of individuals who would review accommodations requests and would have to approve terminations caused by exhaustion of leave;
• Change the way it communicates with employees on medical leave, including informing them by certified mail of their rights to request accommodations, and identifying accommodations options;
• Communicate directly with employees’ doctors about possible accommodations; and
• Seek updates from its workers compensation carrier when medical releases are obtained.

The EEOC also sued Supervalu over a similar one-year maximum disability leave policy, and entered into a $3.2 million dollar consent decree with the company. The consent decree required that Supervalu hire a consultant to develop a list of accommodations for employees with common restrictions and that it hire a job descriptions consultant to review the company’s job descriptions to ensure that they accurately described what was actually done within each position.

What this means to a worker who needs additional disability-related leave time: If the employer has a maximum leave policy, it must amend the policy or make an exception to allow the employee who needs additional leave time beyond the maximum amount to take that time so long as doing so would not create an undue hardship. In addition, the employer must, throughout the leave process, communicate with the employee, his or her physician, and others to determine whether other accommodations are needed that would enable the employee to return to work. Finally, be careful about employers that separate leave administration related to FMLA, workers compensation, or disability benefits from ADA administration, as they often fail to have adequate information flow, and are more likely not to meet their accommodation obligations.

A “No Fault” Attendance Policy Can Violate the ADA

An employer is also likely to be breaking the law when it has a “no fault” attendance policy in which all employees–including disabled ones–are subject to discipline for reaching a certain number of absences, regardless of the cause of the absences. Such policies adversely affect people with disabilities, and can evidence a failure to accommodate if employers do not make exceptions for individuals whose absences were caused by their disabilities. One of the EEOC’s largest settlements (if not the largest) to date has been with Verizon, which in 2011 agreed to pay $20 million to settle a nationwide class disability discrimination lawsuit that challenged its no-fault attendance policy.

Conclusion

The ADA does not identify an amount of leave time that would automatically be deemed an undue hardship. What this means is that any policy that arbitrarily sets a limit or punishes a disabled employee for missing work likely violates the law.

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For citations and a more detailed analysis, please refer to my publication,
“Leave As A Reasonable Accommodation Under The Americans With Disabilities Act.” Labor & Employment Law Forum 3, no. 1 (2013): 29-47.

[1] The FEHA explicitly states that the ADA provides a “floor of protection,” with the FEHA providing equal or greater protections to employees. See Cal. Gov’t Code § 12926.1. Thus, federal authorities are helpful in exploring the minimum protections afforded to employees in California.