Saturday, September 20, 2014

Attacks on no-fault attendance policies — some employers’ worst nightmare

Many employers believe that the best attendance control system is some type of no-fault attendance policy. In the old days, personnel department employees and supervisors grilled absent employees as to the reasons for their absences, and based progressive discipline on whether or not there was just cause for absences. Later, these systems were found to be difficult to administer consistently, likely to antagonize employees and infringe on employee privacy and mostly subjective. Hence, the “no-fault” system developed in which employees received a certain number of points or occurrences for their absences, regardless of the reason for the absence, subject to a few notable exceptions such as the Family Medical Leave Act (FMLA), jury duty, funeral leave, paid leave, etc.

Fast forward to the amendments to the Americans with Disabilities Act (ADA), which became effective Jan. 1, 2009, under which most absences due to physical or mental impairment could be covered by the ADA, whereas in the past they were not serious enough to constitute a “disability” under the ADA. Thus, many more employees than previously can now claim that they were terminated because of their disability, because of absences due to their disability. They will argue that a no-fault attendance policy does not meet employers’ obligations to reasonably accommodate their disability.

This argument was made in a case involving a settlement entered into on July 6, 2011, between the Equal Employment Opportunity Commission (EEOC) and Verizon Communications. EEOC v. Verizon Del. LLC. According to the EEOC, this settlement is the largest disability discrimination settlement of a single lawsuit in the EEOC’s history. Under the settlement, Verizon will pay $20 million and provide various other forms of relief to a class of former and current employees. The additional relief includes modifying attendance policies to include measures for accommodating qualified individuals with disabilities, and excusing a disability-related absence as “non-chargeable” as a reasonable accommodation under the ADA.

Many employers believe that claims attacking no-fault attendance policies lack merit, inasmuch as the policy itself is a form of accommodation, and an employee not at work at all cannot really be “qualified.” In any event, employers can expect large numbers of these claims to be brought, and apparently some employers are settling these types of claims rather than defending such claims on the merits.

The EEOC also reported that in fiscal year 2010, private sector workplace discrimination charge filings with the EEOC hit an unprecedented level of 99,922, which included a record-high number of disability charges (25,165) — an increase of 17.3 percent in disability charges over the prior fiscal year.

The settlement between the EEOC and Verizon provides some insight into the EEOC’s view on how employers should deal with ADA issues relating to no-fault attendance policies. Section 20.03 of the settlement agreement provides:

20.03. In determining whether a Current Associate’s absence should be non-chargeable, Verizon will evaluate on an individual case-by-case basis whether each of the following is satisfied:

(a) the Current Associate has a mental or physical impairment that substantially limits one or more major life activities of such individual as defined by the ADA, and for the period on and after Jan. 1, 2009, as amended through the ADA Amendments Act of 2008;

(b) the Current Associate’s absence was caused by a disability;

c) the Current Associate or someone else on the Current Associate’s behalf requested through the Company’s designated process a period of time off from work due to a disability;

(d) the Current Associate’s absences have not been unreasonably unpredictable, repeated, frequent or chronic;

(e) the Current Associate’s absences are not expected to be unreasonably unpredictable, repeated, frequent or chronic;

(f) Verizon was able to determine, from the request by or on behalf of the Current Associate or through the interactive reasonable accommodation process, a definite or reasonably certain period of time off that the Current Associate would need because of a disability; and

(g) the Current Associate’s need for time off from work as a reasonable accommodation does not pose a significant difficulty or expense for Verizon’ s business.

If each of the foregoing is satisfied a Current Associate’s absence shall be non-chargeable. If (a), (b), (c), (d), (e), (f) or (g) is not satisfied, Verizon may, as Verizon deems appropriate, determine that an absence is chargeable.

In other words, the settlement suggests a way for employers to modify their procedures to require that a disabled employee (or someone acting on behalf of the disabled employee) request leave of a definite duration so that the employer can evaluate whether the accommodation would pose significant difficulty or expense.

What can employers do?

For those who want to avoid the ire of the EEOC, or a plaintiff’s attorney, prepare to engage in a multi-step analysis when an employee is absent from work for personal medical reasons. First, does the employee have an impairment that substantially limits one or more activities? Second, was the absence caused by the disability? Third, did the employee or his representative request time off from work because of a disability? Fourth, are the employee’s absences unreasonably unpredictable, repeated, frequent or chronic? Fifth, does the employee need a definite or reasonably certain period of time off because of the disability? Sixth, would granting the employee time off pose a significant difficulty or expense for the employer?

Assuming the employer wants to be quite conservative and avoid these type claims being made (regardless of their ultimate validity), the important question becomes how the employer can design or modify its no-fault policy to meet these requirements. Even in the Verizon settlement, there is a key phrase that the employee has “requested through the company’s designated process for a period of time off from work due to a disability.”

This key phrase as well as the rationale of the issue suggests that an employer can make a minor modification to its no-fault policies to allow for such an exception, as the law requires an employee with a disability to initiate the request for a reasonable accommodation, following the employer’s published policies. Thus, through the use of this concept, many of the problems associated with the Verizon-type issue can be safely handled without a significant burden on employers.

For employers who are willing to accept some risk, there are some simpler procedures. First, implement an ADA accommodation policy that applies to all other policies and procedures of the company. Second, wait to see if an employee requests an accommodation in accordance with the ADA accommodation policy. Third, if the disabled employee requests an accommodation, evaluate whether the accommodation will enable the employee to do the job. Fourth, if not, then engage in an interactive process with the employee to determine whether there is any accommodation that will enable the employee to perform the job. At the same time, remember that you cannot discriminate against a disabled employee because of the disability. In other words, if other similarly situated employees receive leave, be sure that you treat the disabled employee fairly.

Jerome Pinn is an attorney in the Knoxville office of Wimberly, Lawson Seale & Daves.  He welcomes your comments on this topic or other employment law issues, and can be reached at (865)546-1000.