Martha Zackin

EEOC Issues Resource Document on Leave of Absences under the ADA

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On May 9, the U.S. Equal Employment Opportunity Commission issued a new Resource Document that advocates the use employer-provided leaves of absence as accommodation for an employee’s disability.  According to the press release announcing the publication of the document, titled Employer-Provided Leave and the Americans with Disabilities Act, this new resource attempts to address the “troubling trend” that is the “prevalence of employer policies that deny or unlawfully restrict the use of leave as a reasonable accommodation.” Claiming that the Resource Document creates no new agency policy, the EEOC describes the document as simply “one in a series of EEOC Resource Documents” that “consolidates existing guidance on ADA and leave into one place.”

The Resource Document covers six main topics, giving specific examples for each. These topics, and one example provided for each, are:

  1. Equal Access to Leave Under an Employer’s Leave Policy. Here, the EEOC simply asserts that “employees with disabilities must be provided with access to leave on the same basis as all other similarly-situated employees.” Given that this has been the law of the land for many years, it is likely that the EEOC included this statement in its Resource Document to demonstrate that it is not creating new agency policy, but simply consolidating existing guidance into one place.

Example: An employer permits employees to use paid annual leave for any purpose and does not require that they explain how they intend to use it. An employee with a disability requests one day of annual leave and mentions to her supervisor that she is using it to have repairs made to her wheelchair. Even though he has never denied other employees annual leave based on their reason for using it, the supervisor responds, “That’s what sick leave is for,” and requires her to designate the time off as sick leave. This violates the ADA, since the employer has denied the employee’s use of annual leave due to her disability.

  1. Granting Leave as a Reasonable Accommodation. The EEOC describes its policy as requiring employers “to change the way things are customarily done” (emphasis in the original). To that end, an employer must consider providing unpaid leave to an employee with a disability as a reasonable accommodation, when the employer does not offer leave as an employee benefit, when the employee is not eligible for leave under the employer’s policy, or when the employee has exhausted his or her available leave. The practical effect of this principle is to extend FMLA leave, or to provide FMLA leave to employees who are not eligible for such leave.

Example: An employer’s leave policy does not cover employees until they have worked for six months. An employee who has worked for only three months requires four weeks of leave for treatment for a disability. Although the employee is ineligible for leave under the employer’s leave policy, the employer must provide unpaid leave as a reasonable accommodation unless it can show that providing the unpaid leave would cause undue hardship.

  1. Leave and the Interactive Process Generally. According to the Resource Document, “[w]hen an employee requests leave, or additional leave, for a medical condition, the employer must treat the request as one for a reasonable accommodation under the ADA” (emphasis added). If the request for leave cannot be addressed under an employer’s existing leave program, the FMLA or similar state or local law, or the state workers’ compensation program, the employer must engage in the “interactive process,” to obtain relevant information to determine whether the employee has a condition that is a disability under the ADA, and to determine the feasibility of providing the leave as a reasonable accommodation.

Example: An employee with a disability is granted three months of leave by an employer. Near the end of the three month leave, the employee requests an additional 30 days of leave. In this situation, the employer can request information from the employee or the employee’s health care provider about the need for the 30 additional days and the likelihood that the employee will be able to return to work, with or without reasonable accommodation, if the extension is granted.

  1. Maximum Leave Policies. Many employers have maximum leave policies that provide for automatic or administrative termination for all employees who exceed the maximum amount of leave. The Resource Document makes clear that although such policies are not per se unlawful, employers must consider modifying maximum leave policies to grant leave beyond the maximum allowed as a reasonable accommodation for disability-related absences. In other words, employers must make a case-by-case assessment of an employee’s situation and need for leave before terminating the employee in accordance with a maximum leave policy.

Example: An employer is not covered by the FMLA, and its leave policy specifies that an employee is entitled to only four days of unscheduled leave per year. An employee with a disability informs her employer that her disability may cause periodic unplanned absences and that those absences might exceed four days a year. The employee has requested a reasonable accommodation, and the employer should engage with the employee in an interactive process to determine if her disability requires intermittent absences, the likely frequency of the unplanned absences, and if granting an exception to the unplanned absence policy would cause undue hardship.

  1. Return to Work and Reasonable Accommodation (Including Reassignment). The EEOC unequivocally states that an employer “will violate the ADA if it requires an employee with a disability to have no medical restrictions” before returning to work. In other words, a “100% healed or recovered” policy is unlawful if the employee can perform the essential functions of the job with or without reasonable accommodation. The EEOC also takes the position that if an employee cannot perform the essential functions of his or her job even with a reasonable accommodation, the employer must place the employee in a vacant position for which he or she is qualified without requiring the employee to compete with other applicants for the position.

Example: An employee with a disability requests and is granted two months of medical leave for her disability. Three days after returning to work she requests as reasonable accommodations for her disability an ergonomic chair, adjusted lighting in her office, and a part-time schedule for eight days. In response, the company requires the employee to continue on leave and informs her that she cannot return to work until she is able to work full-time with no restrictions or accommodations. The employer may not prohibit the employee from returning to work solely because she needs reasonable accommodations (though the employer may deny the requested accommodations if they cause an undue hardship). If the employee requires reasonable accommodations to enable her to perform the essential functions of her job and the accommodations requested (or effective alternatives) do not cause an undue hardship, the employer’s requirement violates the ADA.

  1. Undue Hardship. The EEOC reiterates that employers are not required to provide reasonable accommodation if to do so would cause “undue hardship.” Importantly, the EEOC clearly states that “indefinite leave – meaning that an employee cannot say whether or when she will be able to return to work at all – will constitute an undue hardship.” Otherwise, however, the EEOC offers no further clarity to what constitutes “undue hardship” beyond what has already been provided in previous guidance. As always, factors to be considered include the amount and/or length of leave required, the frequency of leave, the predictability of intermittent leave, and the impact on the employer’s operations and its ability to serve customers and clients in a timely manner.

Example: An employee has exhausted both his FMLA leave and the additional eight weeks of leave available under the employer’s leave program, but requires another four weeks of leave due to his disability. In determining whether an undue hardship exists, the employer may consider the impact of the 20 weeks of leave already granted and the additional impact on the employer’s operations in granting four more weeks of leave.

The concept of leave as a reasonable accommodation is not new. For many years, the Equal Employment Opportunity Commission has taken the position that a leave of absence is a form of reasonable accommodation under the Americans with Disabilities act if necessitated by an employee’s disability, including leave that exceeds a company’s normal leave allowance. Nevertheless, and despite the fact that the EEOC claims that the document creates no new agency policy, employers are on notice that the EEOC will scrutinize all refusals to grant an employee a leave of absence as a reasonable accommodation. Beware.

Martha Zackin

Supreme Court Backs EEOC in Religious Accommodation Case

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By Martha J. Zackin

In a much anticipated decision, the United States Supreme Court today held that Abercrombie & Fitch violated the prohibition against religious discrimination, as set forth in Title VII of the Civil Rights Act of 1964, by refusing to hire a Muslim applicant who wore a headscarf (a hijab) during a job interview.  In so holding, the Court rejected Abercrombie & Fitch’s argument that an employer cannot be liable for discrimination unless it can be shown that the employer had actual knowledge of the applicant’s need for a religious accommodation.  Instead, the Court stated, an employer violates Title VII if its actions are motivated by a desire to avoid accommodating a religious practice even if the employer is not certain that an accommodation will be needed.  Importantly, the Court left for another day the question whether an employer may be liable under Title VII if it has neither knowledge nor suspicion that an applicant or employee may require a religious accommodation.

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Martha Zackin

OFCCP Issues Notice of Proposed Rulemaking, Seeking to Update its Sex Discrimination Guidelines

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By Martha J. Zackin

On January 28, 2015, the Office of Federal Contract Compliance Programs announced a Notice of Proposed Rulemaking, seeking to update its sex discrimination guidelines applicable to federal contractors and subcontractors covered by Executive Order 11246.

According to the press release published to announce its proposal, OFCCP’s “sex discrimination guidelines are woefully out of date and don’t reflect established law or the reality of modern workplaces.”  The proposed rule would rescind existing guidance, and align OFCCP’s regulations with those regulations applicable to Title VII of the Civil Rights Act of 1964. Read more →

Martha Zackin

EEOC Issues New Guidance on Treatment of Pregnant Employees

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By Leigh C. Tinmouth

The Equal Employment Opportunity Commission (“EEOC”) recently issued an  enforcement guidance relating to the treatment of pregnant employees (the “Guidance”).  The Guidance reaffirms the EEOC’s position that, although pregnancy itself is not a disability under the Americans with Disabilities Act (“ADA”), many temporary pregnancy-related impairments may qualify as disabilities.  Temporary impairments that may qualify as disabilities include, for example, carpel tunnel syndrome, gestational diabetes, preeclampsia, and even nausea resulting in severe dehydration.  Per the EEOC, therefore, employers may be required to offer reasonable accommodations to employees with such pregnancy-related impairments.

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Martha Zackin

Inflexible Leave Policies – EEOC Position is Clear Despite Court’s Disagreement

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On June 30, 2014, the Equal Employment Opportunity Commission touted its recent agreement with Princeton HealthCare System to settle litigation challenging PCHS’s “inflexible” leave of absence policy under the Americans with Disabilities Act.

According to the press release published by the EEOC, PHCS maintained a fixed leave policy whereby employees were terminated if they were unable to return to work at the end of FMLA-covered leaves of absence, or after a shorter period if ineligible for Family and Medical Leave Act-related leave.  This blanket policy, the EEOC asserts, violates the ADA because it fails to consider leave as a reasonable accommodation.  To settle the case, PCHS will pay $1,350,000 and eliminate its inflexible leave policy.  The EEOC press release also celebrates of “significant resolutions of EEOC cases involving leave and attendance policies, including its settlements with Interstate Distributor, Supervalu, Sears and Verizon. Read more →

Martha Zackin

EEOC Hands Out New Religious Discrimination Complaint

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On September 25, the EEOC issued a press release announcing CONSOL Energy and Consolidation Coal Company violated federal law when they refused to accommodate a long-time employee’s religious belief.  Apparently, the companies installed a biometric hand scanner to track employee time and attendance.  The employee in question, Beverly Butcher, believed that that there was relationship between hand-scanning technology and the Mark of the Beast,* such that submitting to handscanning technology would violate his sincerely held religious beliefs as an Evangelical Christian.

The money quote in the EEOC’s press release is this:

In religious accommodation cases, the standard is not whether company officials agree with or share the employee’s religious beliefs…Instead, the focus is on whether the employer can provide an accommodation without incurring an undue hardship.

Whether an employer believes that biometric technology is the Mark of the Beast, and thus a prelude to the End of Days, is not relevant.  All that matters under the law is whether the employer reasonably accommodates an employee’s sincerely-held religious belief if it can do so without undue hardship. Here, the companies allowed employees to submit manual time cards if their handprints could not be read with a biometric scanner.  Accordingly, the EEOC asserts, this same accommodation should have been offered to Mr. Butcher.

 

*Biblical reference to the Mark of the Beast may be found in Revelation 13:16-17.

Martha Zackin

Abercrombie & Fitch Loses Another to the EEOC

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For the past few years, Abercrombie & Fitch has been fighting to uphold its “Look Policy,” described by the website Buzzfeed as “effortless sex-meets-Ivy League aesthetic.”  A&F’s Look Policy, as reported by Buzzfeed, provides that its employees must, among other things, represent A&F with “natural class” and “American style.”  The Look Policy governs hairstyle, clothing, shoes, makeup, fingernail polish, and tattoos, and prohibits facial hair, hats and other head coverings.

After A& F settled a lawsuit with the EEOC in 2004 for $50,000,000, A&F modified its practices and policies, including its Look Policy, to be more inclusive.

Nevertheless, the A&F Look Policy continued to prohibit hats and other head coverings.  As a result, A&F has continued to face lawsuits alleging that its refusal to waive the Look Policy to allow for the wearing of head scarfs as accommodation to the sincerely held religious beliefs of Muslim women violated Title VII and applicable state law.  A&F lost one such case in 2011, when a federal court in Tulsa, OK found that Abercrombie Kids subjected a 17-year-old Muslim girl to religious discrimination when it refused to hire her for a sales position because she wore a hijab, or head scarf, in observance of her sincerely held religious beliefs.   Recently, a different federal court reached the same conclusion, finding that A&F had engaged in religious discrimination when it terminated a Muslim employee who refused to take off her hijab while working in the store.

The facts of EEOC v. Abercrombie & Fitch were not disputed.  In short, an A&F employee, Umme-Hani Khan, was a devout Muslim whose sincerely held religious belief required her to wear a hijab while in public or in the presence of men who are not immediate family members.  After wearing a hijab in “store colors” for four months, Ms. Khan was disciplined after a District Manager visited the store and noticed Ms. Khan was in violation of the Company’s Look Policy.  A&F asked Ms. Khan to remove her hijab while in the store; Ms. Khan refused and her employment was terminated.

A&F tried to defend against the EEOC and Ms. Khan’s claim of religious discrimination by arguing that it could not reasonably accommodate Ms. Khan without undue hardship.  More specifically, A&F argued that compliance with the Look Policy is critical to the Company’s success, and that deviations from the policy “detract from the in-store experience” and negatively affect its brand.  In support of its argument, A&F offered testimony from its employees, all of whom expressed their personal belief that Ms. Khan’s hijab would cause harm to the Company.  Notably, A&F failed to offer any sales reports, surveys, customer complaints, or any concrete evidence to support its undue hardship claim.

The Court rejected A&F’s argument, stating that the evidence A&F had presented was speculative.  By failing to produce more than some employees’ subjective belief that violation of the Look Policy could result in declining sales, A&F failed to raise a triable issue as to whether an undue hardship would have resulted from allowing Ms. Khan to wear her hijab.   Accordingly, the court granted summary judgment to the EEOC, and against A&F.

The EEOC is continuing to target companies that refuse to alter dress codes as accommodation for employees’ sincerely held religious beliefs.  Just last week, the EEOC issued a press release announcing that it filed suit against two companies operating a chain of KFC stores for terminating female employees, whose Pentecostal beliefs require that they wear skirts, refused to wear the KFC uniform pants.

This issue is not going away.  HR and front-line managers should know that all requests for accommodation (based on the requester’s religious beliefs or disability) must be considered, and that refusals may need to be defended.