As we have previously blogged, http://184.108.40.206/~m2dlawanother-inflexible-work-policy-fails-the-ada-2, the EEOC continues to target inflexible work policies, such as “no fault” absence control policies and “100% fit” return-to-work policies, that do not allow exceptions in cases where a reasonable accommodation may be necessary. Recently the EEOC achieved its biggest ADA settlement ever – to the tune of $20 million and widespread injunctive relief – in challenging Verizon’s nationwide “no fault” absence control policy. The policy required the discipline and eventual termination of employees after a certain number of “chargeable” absences, which could include absences taken to accommodate an employee’s disability.
The settlement – which is now awaiting Court approval – requires Verizon to expressly state in its policies that excusal of an absence as “nonchargeable” may be considered a reasonable accommodation under the ADA, and that where employees have been granted a modified or flexible work schedule as a reasonable accommodation, such absences will not be “chargeable.” It further states that before terminating any employee under the absence policy, Verizon will make reasonable efforts to determine whether the absence is “nonchargeable.” When making this determination, Verizon is to apply a detailed set of factors regarding the employee’s condition and the absence(s) themselves. Specifically, Verizon is to evaluate whether each of the following factors 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 January 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 all factors are met, the absence(s) must be considered “nonchargeable” and the employee cannot be disciplined or terminated based on the absence.
The Bottom Line for Employers:
The ADA’s reasonable accommodation obligation can include modified work schedules, additional leave beyond what is ordinarily offered by the employer, and exceptions to blanket policies to allow employees to take advantage of such accommodations. In light of this obligation, employers should examine their absence control policies to make sure that they allow for exceptions that may be warranted by the ADA.
A link to the EEOC’s press release regarding the settlement is here: http://eeoc.gov/eeoc/newsroom/release/7-6-11a.cfm
A link to the proposed settlement agreement is here: http://hr.cch.com/eld/11-01832.DCMD.pdf