As the Equal Employment Opportunity Commission (EEOC) nears the end of their fiscal year, August press releases reveal a high number of disability and pregnancy discrimination issues.  Of the 18 EEOC sue and settlement press releases made so far this month, more than half include charges of discriminating on the basis of either pregnancy or disability, an increase from July.  But why?  While blatant acts of discrimination are somewhat rare, is it possible for a company to have well-intended practices with harmful and even discriminating impacts?  Taking a deeper look into the EEOC’s shared findings will likely have most companies taking a tough look in the mirror.

Is a request for a leave of absence actually a request for accommodation?

When most employers think of a medical leave, they think of the Family Medical Leave Act (FMLA).  Signed into law in 1993, FMLA generally requires employers with 50+ employees to provide 12 weeks of unpaid, job-protected leave to “eligible” employees for qualified medical and family reasons.  So, if a company has less than 50 employees, or an employee fails to meet eligibility criteria, the company is not obligated to grant the employee leave, right?  In short – no. In a 2016 publication, the EEOC (the agency tasked with enforcing Title I of the American with Disabilities Act, ADA) describes reasonable accommodation as “any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities”.  The publication is clear – an employer can be obligated to provide leave as part of an accommodation even where leave is not available.  Ultimately, the determining factor will be whether or not offering a leave of absence would cause undue hardship to the company.  But what constitutes as undue hardship?  Much like accommodation needs may vary by person, undue hardship will likely vary by company.  So, when Dependable Health Services, a healthcare staffing agency, denied an employee’s request to be reassigned to another department due to her pregnancy complications related to sickle-cell anemia, later terminating her employment one day prior to her scheduled return from maternity leave to “back-fill” her position, the EEOC challenged the undue hardship exception.   On a much larger scale, the EEOC also challenged the undue hardship experienced by multi-billion dollar department store, Macy’s, when it chose to terminate an 8-year employee rather than excuse a one-day absence she requested to tend to a medical condition (asthma).  Lesson here – if your company is covered by the ADA, get familiar on how to have an effective accommodation discussion.  Just because you do not offer a formal leave of absence, it does not necessarily mean you cannot offer (or be obligated to offer) a leave of absence as part of an accommodation.  Undue hardship will need to be assessed, keeping in mind a company’s definition of undue hardship may differ from that of the EEOC.

When an employee exceeds the amount of leave available, should the employer should terminate the employee in accordance with company policy?

Ask an HR person or labor attorney why having company policies or a handbook is important and you’ll most likely get a similar response – to protect the rights of workers and company interests.  Policies ensure fair and consistent expectations within an organization.  But as with most things, a policy is only as good as the reasoning behind it.  Not to suggest the adage, rules are made to be broken, company policies DO need ongoing review to remain relevant.  This is especially clear in cases where rigid policies or doing something a certain way “because it’s always been done this way”, is getting in the way of effective accommodation discussions.  In a recent settlement with Sensient Natural Ingredients, LLC, the EEOC announced Sensient will pay $800,000 as part of a consent decree.  The settlement stems from a 2015 lawsuit in which the EEOC claimed Sensient violated the ADA by discharging employees for exceeding the company’s restrictive leave policy and refusing to allow employees to return following disability-related absences.  Lowe’s too signed into a consent decree with the EEOC in an $8.6M settlement due to a pattern of systematically terminating employees regarded as disabled who exhausted a 180-day (later revised to a 240-day) leave policy without providing reasonable accommodation.  Perhaps this was best demonstrated in the EEOC’s notorious 2011 disability settlement with Verizon for $20M.  The settlement stemmed from Verizon’s “no fault” attendance policy, issuing disciplinary action (including dismissal) to employees with absence violations based on certain thresholds, without consideration of accommodation.  While the EEOC publicly makes no mention of the intent behind policies and practices for these companies, EEOC Chair, Jacqueline A. Berrien’s response to the Verizon settlement warns, “…an inflexible leave policy may deny workers with disabilities a reasonable accommodation to which they’re entitled by law – with devastating effects.”  Lesson here – give thought to the intention behind company policies on an ongoing basis.  Applying rules too broadly or rigidly without thought, while ensuring consistency, may do so at a far greater expense to the company and its employees.  A company’s success is built on the success of its employees.  When a company refuses to even hear from employees what they need to be successful, failure is unavoidable and where accommodations go unheard, EEOC charges await.

Tips for a valuable accommodations discussion:

• Educate first-line managers on the signs that an accommodation discussion is needed. A company may have a request form available with HR, but this is often not how accommodations discussions surface.  Is an employee struggling to meet performance or attendance expectations?  Often the employee and first-line manager are the most knowledgeable as to “why”.  If the “why” has anything to do with medical reasons for the employee or employee’s family or dependents – they should know this is a sign to engage HR or someone more familiar with accommodation discussions.
• “What do you need to be successful here?” – make this question a part of your company’s culture. Where needed, outline expectations and then ask what someone needs to meet those expectations.  This question is not only key to a successful accommodations discussion, but a question key to supporting any employee in their goals.
• Give genuine consideration to requests. Although some requests may in-fact cause undue hardship to an employer, consider the request before responding.  Research what it would take to grant the accommodation.  Tap internal resources, careful not to share confidential information where inappropriate.  This accommodation process is indeed, a PROCESS.
• Deliver the decision to the employee in person (by phone if face-to-face is not an option), followed up with appropriate documentation.
• Encourage the employee to keep lines of communication open. Often accommodations can change as can the needs of a job.  The employee should feel empowered to initiate these discussions with appropriate parties (management, HR, etc) should needs change in the future.  Encourage employees to be proactive in this process, owning their success.  Ultimately, an employee’s willingness to engage in and initiate these discussions will depend heavily on their initial experience.  Both the employee and the company have a shared interest in making the process valuable.

Need help in creating an environment that fosters valuable, effective conversations?  Contact us today!