By Kelley E. Kaufman, Esq.
These days, the Equal Employment Opportunity Commission (EEOC) is on the lookout for both inflexible leave of absence policies and no-fault attendance policies. While few employers welcome news of a targeted enforcement initiative, the best defense is a good offense.
According to the EEOC, the Americans With Disabilities Act requires employers to engage in a case-by-case analysis of an employee’s individual needs to determine whether leave beyond what is typically provided would constitute a reasonable accommodation. Even the most generous leave of absence policies, including those providing up to one year of leave, may be viewed as circumventing the interactive process if they require termination after a certain period. Similarly, policies that require the employee’s “full medical release” to return to work may be subject to close EEOC scrutiny because the ADA requires employers to accommodate work limitations if reasonably possible.
No-fault attendance policies are receiving particular scrutiny because they charge an absence against an employee regardless of the reason for the absence. Thus, problems occur when the employer fails to recognize absences that relate to a disability or that fall under the Family and Medical Leave Act (FMLA).
Now is the perfect time to take a closer look at your employee handbook. If your policy provides for automatic termination after a fixed period of leave, consider an alternative policy that instead states that requests for additional leave will be considered on a case-by-case basis. If you have a no-fault attendance policy, provide clear exceptions for FMLA leave and disability-related absences. Also, eliminate polices that require employees to be clear of all restrictions before they may return.
Kelley E. Kaufman, Esq., is an associate with McNees Wallace & Nurick LLC and practices in the Labor and Employment Law and Employee Benefits practice groups.