The Equal Employment Opportunity Commission (EEOC) provided warning. In August 2010, the Director of the EEOC’s New York District Office stated, “The unfortunate reality is that too many companies discriminate against persons with disabilities by strictly applying blanket leave policies.” Numerous EEOC investigators I spoke to indicated that disability discrimination is an EEOC priority. Apparently, not every employer got the message, so the EEOC is sending a louder message.
On July 6, 2011, the EEOC issued a press release stating that Verizon agreed to pay $20 million to resolve a disability discrimination class action filed by the EEOC. The lawsuit alleged that Verizon unlawfully denied reasonable accommodations to hundreds of employees and disciplined or fired them pursuant to its “no fault” attendance policy. Essentially, Verizon refused to make exceptions to its attendance policies for individuals with disabilities. This settlement is the largest disability settlement in a single lawsuit in EEOC history.
The EEOC’s General Counsel stated, “Hopefully this nationwide decree will further public awareness of the importance of engaging in an individualized interactive process to determine whether a disabled employee must be accommodated under the ADA.” The Director of the EEOC’s Philadelphia District Office, which oversees Pennsylvania, Maryland, Delaware, West Virginia and parts of New Jersey and Ohio, added, “This settlement demonstrates the need for employers to have attendance policies which take into account the need for paid or unpaid leave as a reasonable accommodation for employees with disabilities.”
These comments highlight an employer’s duty under the ADA. Employers cannot simply apply blanket leave policies to an employee who may qualify as disabled. With the enactment of the Americans with Disabilities Amendment Act, it is much easier for an employee to qualify as disabled, which imposes upon an employer a duty to explore reasonable accommodations.
Your leave policies cannot be applied in a vacuum. They must take into account whether an individual may qualify for a disability. The EEOC is focusing particularly on return to work policies. For example, an employer may have a policy requiring an employee to return to work within a certain amount of time of exhausting FMLA leave. Such policies are permitted; however, problems occur when employers terminate an employee pursuant to such a policy and that employee qualifies as disabled. As the EEOC noted, it considers unpaid leave a reasonable accommodation.