Ferrara Fiorenza P.C.

EEOC Cracking Down on Rigid Work Schedule and Attendance Policies

In the last few years, the Equal Employment Opportunity Commission (EEOC) has begun to focus its enforcement efforts on employer leave of absence and attendance policies, and has obtained numerous costly settlements.  While an employee's request for a medical leave of absence, intermittent leaves and modified work schedules create staffing uncertainty and can be a burden on both the company and coworkers, an employer's denial of an employee’s leave or schedule change can lead to costly Americans with Disabilities Act (ADA) claims for failure to accommodate.

In a class action lawsuit filed against a nationwide communications company, the EEOC argued that the employer's no-fault attendance policy violated the ADA because employees were assessed points for absences, resulting in discipline or discharge, even where the absences were due to ADA-covered disabilities. The EEOC’s position was that the employer should provide, as a reasonable accommodation, an exception to its no-fault point system for such absences. The company recently settled the case for $20 million.

In another class action case, the EEOC alleged that the employer's policy of terminating employees at the end of a fixed medical leave period rather than bringing the employees back to work with reasonable accommodations was a violation of the ADA. The policy in question required employees who were returning from leave to be able to return to full duty with no restrictions. The employer settled this case with the EEOC for $3.2 million earlier this year.

Currently, the EEOC has several pending lawsuits against employers in which it contends that the employers' inflexible leaves-of-absence policies fail to reasonably accommodate individuals with disabilities. As with the cases described above, at issue in these cases are policies in which employees are terminated where they are ineligible for the FMLA or have exhausted FMLA leave or have exhausted a fixed maximum leave period.

While the EEOC is expected to issue guidance on leaves of absence in the near future, these cases are a good indication of what the guidance will contain.  In light of these cases and the anticipated guidance, employers should consider taking precautions to reduce their potential liability exposure for ADA violation claims, such as: 

· Removing any language from attendance and leave of absence policies that suggest that an employee will be terminated if he/she does not return to work within a specific period of time. 

· Training supervisors to notify your HR department or other appropriate company officials of all leave or time-off requests to ensure that the organization promptly engages in an individualized interactive process with all disabled individuals, even where they are not eligible for or have exhausted FMLA and company-provided leave. 

· Removing all statements from leave and attendance policies requiring that an employee must be able to return to work at “full capacity, without restrictions.” 

While it is possible that the EEOC will expand its challenges to leaves of absence and attendance programs, taking these steps should help your company to avoid future EEOC and court scrutiny in the near term.

If you have any questions about these issues, or need assistance in modifying your policies or training your supervisors, please feel free to call us at 315-437-7600.


Excerpted from October 2011 edition of Employment Law Matters.  To see the entire newsletter, click here.