EEOC Challenges “Inflexible” Leave Policies

Law

It is advisable for any employer to have written policies governing employee leave and attendance. But, not just any policy will do. In drafting these policies, it is imperative to ensure that they are written to comply with a host of applicable federal, state, and local laws. Employers must be especially cautious before adopting inflexible leave policies that fail to account for the requirements of laws such as the Americans with Disabilities Act as Amended (ADAAA), which mandate the employer engage in an “interactive process” when an employee requests an accommodation for a physical or mental impairment.

Hawaii Company Accused of Failing to Engage in “Interactive Process” with Disabled Employees

The U.S. Equal Employment Opportunity Commission (EEOC), the federal agency that enforces the ADAAA in the workplace, recently took action against a major employer precisely over allegations the company “maintained inflexible leave and attendance policies that did not allow additional leave as a reasonable accommodation.” In effect, the EEOC said the employer–Oceanic Time Warner Cable LLC of Hawaii, which does business under the name Spectrum–committed disability discrimination by failing to engage in the ADAAA-required interactive process. The EEOC filed a civil lawsuit in Honolulu federal court on September 19, 2018, seeking injunctive relief and monetary damages on behalf of the affected employees.

According to the EEOC’s complaint, for the past four years Spectrum’s attendance policy has not provided for “[m]edical leave and disability-related leave” outside of certain approved leave days expressly required by law or that are part of the company’s union contracts. For new hires, Spectrum’s policy states an employee will be fired if he or she incurs “two unpaid absences even where such absences are disability-related,” according to the EEOC. And even more senior employees can be discharged for “excessive disability-related absences even when such absences are excused.”

As a result of these policies, the EEOC alleged multiple employees of Spectrum were denied their rights under the ADAAA for reasonable accommodation of their disabilities. For example, the EEOC cited the example of a woman who worked as a customer service representative for Spectrum. The employee suffered from “Type 1 diabetes and chronic migraines” that affected her ability to concentrate. After exhausting her sick leave to deal with her condition, the EEOC said Spectrum gave her a “written warning” and a supervisor told her to “stick it out” and not take any additional time off. Shortly thereafter, the employee required emergency medical care and was unable to return to work for two weeks. Spectrum then fired her for “incurring her second unpaid absence” under the company’s policy. The EEOC said Spectrum made no effort to accommodate the employee’s disability.

Do Your Company’s Policies Comply with the ADAAA?

The Spectrum lawsuit shows the EEOC is clearly scrutinizing employers for potential ADA violations. As an EEOC official said in an agency press release, “Employers should audit their policies to makes sure they comply with the ADAAA, and remember to make exceptions to inflexible policies when required to provide reasonable accommodations.”

If you’re an employer who needs to adopt–or review–an attendance policy to ensure it does not run afoul of the law, you should contact a qualified Florida employment law attorney today.

Resource:

eeoc.gov/eeoc/newsroom/release/9-19-18d.cfm

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