Russ Cawyer posts about the coming demise of the so-called "no fault" leave policy, better described as fixed leave policies. He notes that the EEOC has been aggressively pursuing companies who implement such policies. Under these policies, once an employee has been out on leave for a certain length of time, the employee is terminated no matter the cause of the leave. The problem with such policies is that they violate the requirement of the Americans with Disabilities Act for an individualized assessment of an employee’s need for leave. I discussed these automatic leave policies previously here. An employer maintains such policies at considerable risk. They might work for Family Medical Leave Act or worker’s compensation reprisal cases, but they will not work for ADA claims.
The EEOC held hearings on leave as an accommodation, a couple of weeks ago. Public comments regarding leave as an accommodation may be sent to: Commissionmeetingcomments@eeoc.gov. I typically only hear about the issue when some employee faces an issue with his/her employer. But, sure, many employees are getting short shrift from too many employers when the employee is out on prottracted leave. There is strong caselaw saying that too many absences render an employee unable to perform a key function of every job: attendance. This is a misleading characterization, but the point remains, employees need to attend work in some way to perform the job.
There is a middle ground, somewhere before the employee is out for a year or two but not before the employee has had an opportunity to recover from an ADA type illness. The EEOC will attempt to find that middle ground when they issue new regulations regarding leave as an accommodation.
Most cases currently find that absences of 1 year, 1,5 years are too long. Once an employee has been out that long, many judges have found that he/she is not capable of performing a key function of every job, attendance. If the employee cannot perform the function of attendance, then that employee is not entitled to accommodation. But, how long is too long for an employee to be out? Send your comments to: Commissionmeetingcomments@eeoc.gov. The EEOC is working on regulations to provide needed guidance. Government regs always work better when they have some grounding in real life.