Based on recent developments, employers wonder how much leave is really required under the ADA.  It seems that employers with even generous policies and practices have run afoul of the EEOC either in individualized cases, or, worse yet, in class claims.

Most recently, Verizon Communications Inc. settled for a record $20 million payout based on EEOC allegations that Verizon’s no-fault attendance policies did not adequately provide for an individualized assessment of an employee’s condition.  The EEOC has been focusing on such “no-fault attendance” and “maximum leave” policies.

How much leave is required, however, is not the correct question.  The better question is:  “What must be included in the employer’s process of evaluating an employee’s need for leave?”

Compliance with the ADA is often a “process driven” evaluation.  How you do something is almost as important as what you do.

For attendance policies

Review your attendance policy to ensure your process does not include “automatic termination” for reaching a particular level of “points”

  • note that failing to call in properly to report an absence is an occurrence/point
  • note that at a certain level of points, there will be a “review” for termination, including evaluation of any extenuating circumstances
  • such a review will evaluate if the employee had an impairment for which a reasonable accommodation is necessary
  • such a review will also determine if the employee has some reasonable explanation not just for failing to show up for work but also for failing to call in timely to report the absence

For leave policies

Review your leave of absence policy to ensure your process does not include “automatic termination” for reaching a certain number of weeks/months of leave.

  • note that after a particular maximum period has been exhausted, the Company will review the situation in light of the employee’s circumstances and the Company’s operational needs
  • that review should involve discussing options with the employee in question (the “interactive process”)
  • whatever general leave is provided to employees who are not eligible for FMLA must also be provided to FMLA-eligible employees after their FMLA leave has been exhausted
  • providing job-protected leave does not mean that the job must remain vacant and cannot be “filled;” rather, job-protected leave means that if the job is filled, it is filled only temporarily while the leave remains job protected