The EEOC means business. Earlier this week, I wrote about the EEOC’s new American’s with Disabilities Act (ADA) guidance: Employer-Provided Leave and the American’s with Disabilities Act. In that blog, I noted what stuck out to me was the following guidance statements:
- Maximum leave policies may have to be modified as a reasonable accommodation.
- A maximum leave policy form letter (whether mailed from a third-party provider or the employer) should be modified to let employees know that if they need additional unpaid leave as a reasonable accommodation for a disability, the employee should ask for it as soon as possible.
Perhaps not coincidentally, the EEOC just announced today a $8.6 Million resolution with Lowe’s over its alleged pattern and practice of discrimination against disabled employees by firing them, and failing to provide reasonable accommodation when their medical leave exceeded Lowe’s maximum leave policy. Most employers would believe Lowe’s policy was overly generous, providing far more leave than required by the FMLA. Notably, Lowe’s policy provided that employees could take a maximum leave of 180 days (later changed to 240 days) – far more generous than the 84 days (12 weeks) required under the FMLA. However, forgetting about ADA interplay is where the employer gets into trouble in an FMLA situation.
The EEOC’s General Counsel David Lopez cautions employers:
This settlement sends a clear message to employers that policies that limit the amount of leave may violate the ADA when they call for the automatic firing of employees with a disability after they reach a rigid, inflexible leave limit.”
Lopez further commented that this should entice employers to “voluntary comply with the ADA”.
However, what I think is not appreciated is that, many employers – and their HR professionals – and their attorneys – may not even think about time off (greater than the 12 weeks) as an accommodation. When thinking of a “reasonable accommodation”, one tends to think of ways to help the employee come back to work and modify their job duties or work environment. To suggest that employers should have thought of time off as a reasonable accommodation is just, in my opinion, goofy, especially when the FMLA only mandates 12 weeks’ leave. Where does the EEOC and employers draw the line? We know “indefinite” leave is not reasonable, but what about 241 days, 365 days or more? Time will only tell how this plays out in the courts. In the meantime, Employers should carefully consider removing any maximum time off policy and handling each situation as it comes based on the facts before you.