As we noted last week, the First Circuit in Valle Arce v. Puerto Rico Ports Authority recently added a new wrinkle to the traditional Americans with Disabilities Act (“ADA”) analysis regarding whether “flexible work schedules” constitute a reasonable accommodation. Consistent with the First Circuit’s analysis, the Equal Employment Opportunity Commission (“EEOC”) has vowed to take a critical look at employers that utilize “no-fault” or “zero-tolerance” attendance and leave policies – especially when those policies call for automatic termination following an employee’s exhaustion of her leave entitlement. So, if you have a “no-fault” or “zero-tolerance” attendance policy, you might be setting your company up for a lawsuit.
In July of last year the EEOC entered into a consent decree with telecommunications giant Verizon Communications settling claims that Verizon, and its subsidiaries, failed to provide reasonable accommodations to disabled employees. The focus of the EEOC’s claims was Verizon’s rigid, “no-fault” attendance policy. Such policies charge employees with an absence regardless of the reason for the absence. According to the EEOC, Verizon’s failure to make exceptions to this “no-fault” attendance policy for employees whose absences were due to disability constituted unlawful discrimination under the ADA. The settlement, totaling $20 million, was the largest disability settlement in EEOC history.
This historic settlement came only a month after the EEOC held a Commission meeting devoted to the issue of leave policies and an employers’ duty to provide reasonable accommodations. The EEOC Commissioners heard from various experts representing large, medium and small employers as well as those representing disabled individuals. Afterwards, EEOC Chair Jacqueline A. Berrien noted that “[a] period of leave -- whether for medical treatment, recovery, or training to use adaptive equipment -- is often the reasonable accommodation that permits a person with a disability to remain gainfully employed.” Adding to this, the EEOC Assistant Legal Counsel in charge of ADA issues, Christopher Kuczynski, stated that inflexible, no-fault leave policies “must be modified as a reasonable accommodation, absent undue hardship, if an employee with a disability needs additional leave.”
What Does This All Mean?
It means that employers that continue to rely on and apply inflexible leave policies are putting themselves at risk of having to defend against claims of discrimination under the ADA. It is clear that the issue of accommodation requests and leave policies has become a hot-button topic for the EEOC. In addition, the EEOC has made it clear that an employer’s duties under the ADA include the need for individualized assessment of an employee’s accommodation request. The Valle-Arce decision illustrates that at least one court agrees with the EEOC that individualized assessments are key to ADA compliance.
In light of these developments, employers need to take a closer look at their leave policies to see whether the policies provide exceptions for absences due to disability or otherwise provide the flexibility to consider cases on an individualized basis. What may have passed muster even one or two years ago may not conform to these changes. Employers facing accommodation requests involving absences due to disability should also tread carefully in applying whatever policy may be in place to ensure that due considerations are given to individual employee circumstances.