Could Your Employee Leave Policies Get You Into Trouble?

“In EEOC v.Dillard’s Inc., the Court held that Dillard’s attendance policy violated the federal Americans with Disabilities Act because it required any health-related absence to be supported by a doctor’s note stating ‘the nature of the absence (such as migraine, high blood pressure, etc…).’” (Employers Generally Cannot Require Reasons for Sick Leave by White & Case LLP)

Earlier this year, a federal district court in California found that the attendance policy at Dillard’s department stores discriminates against the company’s employees because it requires sick workers to divulge information that may be protected under the Americans with Disabilities Act. Could your policies expose your business to similar charges?

For your reference, here’s a roundup of legal advisories to help guide your leave policies and practices (and stay off the EEOC’s radar screen):

Requiring Employees to Explain Health-Related Absences May Be Unlawful (Franczek Radelet P.C.)

“The court’s ruling [in EEOC v.Dillard’s Inc.] is troubling for employers because it suggests that seemingly innocuous questions about an employee’s reasons for taking sick leave, even well-intentioned questions of concern, may be construed by a court as an improper inquiry into an employee’s disability. It is therefore imperative for management and human resources personnel to limit health-related inquiries to the employee’s ability to perform his or her job responsibilities.” Read the full update»

EEOC Targets Employers’ Leave of Absence and Attendance Policies (McNees Wallace & Nurick LLC)

“Does your company’s leave policy call for an employee’s termination following the expiration of his or her leave entitlement? Does your company charge ‘attendance points’ against employees regardless of the reason for the absence? Does your company require employees to be released to work without restrictions before they are permitted to return from a medical leave? If so, beware: ‘inflexible’ leave of absence and attendance policies are being targeted by the Equal Employment Opportunity Commission and plaintiffs under the Americans with Disabilities Act.” Read the full update»

EEOC Continues to Target Inflexible Leaves-of-Absence, Attendance Policies (Duane Morris LLP)

“… employers should consider eliminating all statements from leave and attendance policies stipulating that an employee must be able to return on full capacity, without restrictions, in order to return to work. Finally, it is essential to communicate with employees, in advance of their anticipated return-to-work date, to confirm when they are returning and whether they will be requiring any additional accommodations, such as additional leave.” Read the full update»

Second Circuit Lightens the Burden for Plaintiffs Bringing FMLA Retaliation Claims (Ford & Harrison LLP)

“This decision [in Millea v. Metro-North R.R. Co.] is also significant because it holds that an employer’s rigid policy of requiring employees to directly notify their supervisor of a need for FMLA leave, even if the leave is unforeseeable, is invalid as inconsistent with the FMLA.” Read the full update»

Leave of Absence as Reasonable Accommodation for Disability? It Depends (Mintz Levin)

“… the Court held that although a leave of absence may be a ‘reasonable accommodation,’ it is only reasonable ‘as long as the employee’s request states the expected duration of the impairment.’ For example, the Court continued, ‘when an employee seeks a leave of absence for treatment and has a good prognosis for recovery, a leave of absence is a reasonable accommodation. Conversely, when the employee seeks leave, but it is uncertain if or when he will be able to return to work, a leave of absence is not a reasonable accommodation.’” Read the full update»

Court Confirms that Request for Additional Leave of an Unspecified Duration is Not a Reasonable Accommodation Under the ADA (Franczek Radelet P.C.)

“… the Valdez decision is a victory for employers in that it requires employees to regularly communicate with their employer and provide clear information (typically from their health care provider) that they will be able to return to work now or in the near future. When they use vague terminology as the plaintiff did here, it then begins to look like a request for “indefinite” leave, which employers do not need to accommodate.” Read the full update»

EEOC Aims to Clarify Leave Rights Under the ADA (Poyner Spruill LLP)

Although the ADA does not specify any particular amount of leave as a reasonable accommodation, the EEOC takes the position that some finite period of unpaid leave may be required. This situation frequently arises when an employee is out on Family and Medical Leave Act (FMLA) leave for a reason that also qualifies as an ADA disability. Employers who automatically terminate employment at the end of FMLA leave without considering whether some amount of additional unpaid leave will allow the employee to return to work face the possibility of litigation under the ADA.” Read the full update»

EEOC Crack Down on “Line in the Sand” Leave of Absence Policies (Miller & Martin PLLC)

“Word to the wise, if you currently have a leave of absence policy which either expressly states or otherwise is applied to say ‘Once an employee has been on a leave of absence for X amount of time, regardless of the reason, if he/she is unable/has not been released to return to work the employee will be terminated,’ YOU NEED TO AMEND THIS POLICY IMMEDIATELY.” Read the full update»

Never-Ending Leave Not Required, But Look Beyond FMLA Leave (Pryor Cashman LLP)

“… many employers, from mom and pop stores to Fortune 500 companies, use a rigid approach when handling an employee’s request for leave, which exposes the company to serious legal risk. These employers evaluate whether the employee is eligible for leave under the Family and Medical Leave Act (FMLA). If the employee is eligible, they grant him or her up to 12 weeks of FMLA-mandated leave. However, once the FMLA leave is exhausted, the employers expect the employee to return. If the employee is unable to return, these employers move to terminate the employee.” Read the full update»

The EEOC’s 5 warnings about medical leaves and the ADA (Constangy, Brooks & Smith, LLP)

“Many jurisdictions require that the employer and employee conduct an ‘interactive process’ when discussing possible ADA accommodations, and the EEOC takes this position as well. The ‘interactive process’ is fancy-lawyer-talk for having a discussion with the employee (ideally, face-to-face, but phone or email will suffice if the employee can’t come in) about possible reasonable accommodations. In these jurisdictions, the failure to engage in the interactive process is an ADA violation in itself.” Read the full update»

EEOC’s $20 Million Settlement with Verizon Puts Focus on “No Fault” Attendance and Leave Policies (Poyner Spruill LLP)

“According to the EEOC’s lawsuit, Verizon violated the Americans With Disabilities Act (ADA) because its ‘no fault’ attendance policy was inflexible and made no provision for whether a reasonable accommodation of employees with disabilities, such as allowing an employee to take paid or unpaid leave, could be made without causing the company significant difficulty or expense.” Read the full update»

No-Fault Attendance? In Light of the EEOC/Verizon Settlement, What’s the Point? (Constangy, Brooks & Smith, LLP)

“… the EEOC’s interpretation of the ADA(AA) means that no-fault absences shouldn’t usually be charged if the absence is due to a disability even if the employee does not qualify for FMLA leave — whether it’s because she hasn’t been employed for 12 months or 1,250 hours, or because he’s exhausted his entitlement already.” Read the full update»

Man, My Cell Bill Is Going Up Again! (Warner Norcross & Judd)

“These allegations and this settlement highlight an important difference in the ADA that we all know about but don’t talk about very often. Unlike say, Title VII, which requires that all employees are treated equally, the ADA actually requires employers to treat persons with disabilities different than they may treat non-disabled employees. In short, employers must provide reasonable accommodations for qualified individuals with disabilities.” Read the full update»

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