8-16-11; Count your blessings at Thanksgiving this year—it won’t take as long as previous years because the folks in Washington have cut our blessings in half and continue to “carve” away...

In the most recent of what is becoming a growing concern for employers across the U.S., the lack of effort to determine consideration for reasonable accommodations in H.R. attendance policies is becoming more and more expensive. In July 2011, the EEOC announced it reached a $20 million agreement -- the largest settlement in Americans with Disabilities Act history -- with Verizon to settle claims that company subsidiaries violated the ADA by failing to make exceptions to its "no-fault" attendance plan. From our view, Verizon fell into the HR trap of thinking strict and arguably “blind” adherence to its attendance policy would shield them from claims of discrimination. As we demonstrate below, the EEOC clearly goes on the attack when strict attendance/termination policies don’t adjust for workers claiming what they feel are life-changing disabilities.

The EEOC viewed the failure to make HR exceptions to be Verizon's decision to not accommodate employees whose "chargeable absences" were supposedly due to disabilities. As we have previously reported in this KC&A Update, prior issues investigated by the EEOC resulted in a $6 million agreement the EEOC reached with Sears in 2009 and a similar issue resolved with Supervalu in January 2011 for $3.2 million. In the Sears case, the EEOC challenged Sears' policy of automatically terminating employees who were on workers' comp due to a disability resulting from a work-related injury. In the Supervalu case, the ADA alleged violations in claiming Supervalu (Jewel-Osco) had a policy and practice of terminating employees with disabilities when medical leaves of absence ended rather than bringing them back to work with reasonable accommodations. Allegedly Supervalu had a policy where disabled employees must be completely healed to return to work and approximately 1,000 employees were terminated under this policy since 2003.

We assure our readers such a strict policy is certain to result in a suit being filed by the federal government and if you fired numerous employees due to such a policy, you may be facing seven-figure exposure. The Equal Employment Opportunity Commission has taken a position such a policy is unlawful under the ADA. The type of blanket attendance policies at issue in the Verizon, Supervalu and Sears cases run afoul of the ADA's individualized assessment requirements for determining when leave might be a reasonable accommodation. We urge all US employers to take a strong look at their blanket attendance and termination policies to ensure they do not run afoul of the EEOC with regard to issues related to people who arguably have disabilities.

It should be noted the ADA is very clear that U.S. employers have a requirement to engage in the interactive process and conduct an individualized assessment to determine whether it can provide a reasonable accommodation to employees claiming disabilities. This cannot be done with a wave of the hand or a simple eyeball test to see if the person “looks disabled.” We strongly encourage employers to document, document, document in an effort to evidence your review. It also should be noted the ADA doesn’t force you to “find work” for the disabled, it simply forces you to attempt to make a reasonable accommodation. If every job in your facility involves a lifting requirement and you make a reasonable effort to determine if certain shifts or certain duties can be avoided, you have more than likely met the burden even if there is an ultimate determination that no job can be accommodated. There are other factors which the EEOC may take into consideration and if you have a large and diverse workforce at a facility, they will be more strict to compel accommodation. Conversely, if you have a relatively small workforce, the ability to accommodate is obviously inverse. The main goal is to perform an individual review for the specific situation and make a determination based upon that individual employers circumstance and disability.

The irony of being punished for a blanket attendance/termination policy has not escaped some of our clients—many of whom have noted their “blanket” policies were generally a response to efforts to determine nondiscriminatory standards in that everyone gets treated the same regardless of their circumstances. It is our belief the EEOC is not attacking these policies directly, but they expect a more detailed review of individual claims to ensure employees with disabilities are given consideration of that particular employee's situation.

We continue to see clients who struggle with issues when workers are off work for extended periods and note the EEOC still hasn’t answered the fundamental question of whether an employer can ever terminate a worker who is on TTD. Basically, all they do is attack and attack. We ask does the work injury causing “disability” equal infinite or at least indefinite job security to the extent the injured worker could always continuously or later claim the need for reasonable accommodation to allow them to get back into your workforce?

We also remind you of the pertinent questions that arise include what an HR department should do when and if:

1.           The injured worker is off for the entire autotermination period and doesn’t claim a disability and/or request accommodation until after they have been terminated;

2.           The injured worker who is fully recovered to MMI during the autotermination period and then aggravates the injury at a later time, again losing substantial time from work;

3.           A union employer is more than willing to accommodate an employee who is ready to return to work before or after the autotermination period has run but the applicable union or interpretation of their union rules won’t allow it;

4.           An employee is off for multiple reasons, some of which are related to injury and some of which are wholly personal and unrelated to the work injury.


We still believe one “solution” to this problem is to maintain the status quo, sort of. First, autoterminate everyone consistent with your current policy that isn’t suffering from a claimed work injury. Second, for those with pending workers’ compensation claims, if they ask for accommodation to return to work prior to the running of the autotermination period, actively address the request and keep careful records of both the request and your decision(s) on reasonable accommodation. Third, for injured workers with pending workers’ compensation claims who don’t request accommodation prior to the autotermination period, when your autotermination period is over, don’t terminate; put them on “inactive” or leave of absence status, pending further action. If such injured workers later request reasonable accommodation due to their work injuries and allegations of disability, consider the request, confer with your defense counsel and take whatever action necessary to determine if there is a reasonable accommodation available and avoid running afoul of the ADA. If they don’t seek reasonable accommodation and cannot return to work, at some distant point, take them off the inactive or leave of absence status.  Our other strong suggestion is to offer value for a release agreement to ensure nothing arises in the future which creates difficulty in defending.

As always—DOCUMENT.

·         At the time the auto-termination is approaching or about to trigger, we feel the employer should ask the employee in writing if he/she has been or will soon be released to work under any temporary or permanent restrictions. Document non-response or response.

·         If there is a total medical restriction from all work in your file, we recommend you place a memo in the personnel file that you carefully considered reasonable accommodation potential under ADA but there is a continuing total prohibition from all work and therefore, you are proceeding with termination, as the employee cannot and will not be able to perform the essential job functions of their position. This remains “legal” under Illinois law based upon the rulings in Hartlein v. Illinois Power and Hayden v. Industrial Commission.

·         If the employer finds out the treating doctor has any type of light duty restrictions prior to or as you near an auto-termination deadline, we feel the employer should evaluate whether the stated restrictions can be “reasonably accommodated” and ideally, the employer should even ask the employee if he/she has any suggestions for either (a) modifying the prior position to allow accommodation or (b) whether there are any open positions that would fit the restrictions, allowing the employee to be returned to those positions.

·         If the employer has no open positions and cannot safely and reasonably accommodate the restrictions with a job modification, we recommend the employer document the effort made to consider such accommodation and place such memorandum in the employee’s personnel file. You may then proceed with termination with some modicum of defense should the issue arise later.

We already have an exit document created for your consideration to use when an injured or disabled worker is leaving your employment. The concept has not been tested in litigation but we bet someone will take a shot at it soon. The idea is to affirmatively ask anyone you are firing to tell you in writing if they could return to work with reasonable accommodation and to outline the requested accommodation. If you want our sample document, send a reply.

Remember, the employer’s obligation is one of “reasonableness” and employers need not overhaul an entire facility or production line to accommodate persons with disabilities. However, simple accommodations such as step stools, chairs, inexpensive modifications to existing equipment should and must be considered before termination.