Two recent settlements in cases filed by the Equal Employment Opportunity Commission (“EEOC”) highlight the continued risks associated with employers’ maximum leave policies as well as employer practices of requiring too much information from an employee to support a request for use of paid medical/sick leave.

EEOC v. Dillard’s, Inc.

In 2008, the EEOC filed a lawsuit against Dillard’s Inc., a national retail chain, alleging that its medical leave of absence policy violated the ADA insofar as it required employees to disclose personal and confidential medical information in order to be approved for sick leave and called for the automatic termination of employees whose medical/sick leave extended beyond the maximum amount of time allowed under the FMLA.  EEOC v. Dillard’s, Inc., No. 08-1780 (S.D. Cal. 2008).  The lawsuit alleged that Dillard’s Inc. maintained a policy that in order for an employee to utilize medical/sick leave, the employee was required to disclose the exact nature of the medical condition. 

According to an EEOC press release dated December 18, 2012, Dillard’s Inc. entered into a three-year consent decree requiring it to pay $2 million to identified victims and establish a class fund for unidentified victims of its unlawful law policy.  Dillard’s Inc. is also required to hire a consultant to review and revise its policy, provide training to supervisors and staff on ADA compliance and develop a centralized tracking system for employee complaints of disability discrimination

EEOC v. Interstate Distribution Co.

Interstate Distribution Company (“Interstate”) resolved its dispute with the EEOC over its maximum leave policy for an even greater amount -- $4.85 million.  Specifically, in the suit against Interstate, the EEOC alleged that its maximum leave policy, which resulted in the automatic termination of employees whose leave extended beyond twelve weeks without consideration of reasonable accommodations which might enable the employee to return, ran afoul of the ADA.  The settlement reached also extends beyond monetary penalties and includes, among other things, an injunction prohibiting Interstate from engaging in discrimination or retaliation on the basis of disability, a mandate that Interstate revise its policies to comply with the ADA and include reasonable accommodations and a mandate that Interstate provide mandatory periodic training on the ADA to its employees.  EEOC v. Interstate Distribution Co., No. 12-2591 (D. Col. 2012).

As has been previously reported, (See, Duane Morris Institute, ADA Compliance Blog at http://blogs.duanemorrisinstitute.com/adacompliance/), the EEOC continues to challenge employer leaves of absence policies containing maximum leave provisions, as well as policies which require employees to identify the specific nature and extent of a disability it order to utilize employer-provided paid leave time such as sick days.

To reduce the likelihood of similar challenges, employers should implement the following policy changes:

  • Employer sick leave policies should be reviewed to ensure that they do not require an employee to specify the specific nature and extent of a medical condition in order to utilize typically-provided paid sick leave. 
  • If an employer maintains a policy providing for a fixed leave period (e.g., 12 months of leave in a rolling 12 month period), the employer must include an explicit statement in the policy that an employee may be eligible for leave as a reasonable accommodation, even if the employee is not eligible for or has exhausted the company-provided leave. Similarly, the employer must also include a statement that in the event an employee is not eligible for or has exhausted FMLA leave, the employee may still be eligible for leave as a reasonable accommodation.
  • Managers and supervisors must be trained to notify human resources of all leave or time-off requests to ensure that the employer is timely engaging in the interactive process. 
  • If an employer maintains a no-fault attendance policy, it should ensure that it does not "charge," and thus discipline, an employee for absences that are covered by the FMLA or for conditions that qualify as "disabilities" under the ADA.
  • Employers should eliminate 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.
  • Employers should implement a practice of communicating with employees, in advance of and in anticipation of their return-to-work date, to confirm when they are returning and whether they will be requiring any additional accommodations, such as additional leave.