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As Verizon Inc. recently learned, the Equal Employment Opportunity Commission takes the issue seriously.

In July, 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.

The Verizon settlement comes in the wake of a $6 million agreement the EEOC reached with Sears in 2009. In that 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.

The type of blanket attendance policies at issue in the Verizon and Sears cases run afoul of the ADA's individualized assessment requirements for determining when leave might be a reasonable accommodation, according to one expert.

"Employers should definitely review any blanket policies that they have related to people with disabilities," said Barry Taylor, legal advocacy director for Equip for Equality.

Taylor also said the settlements highlight the interactive process duties the ADA requires of employers.

"The ADA is very clear that 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 with disabilities," Taylor said. "Blanket policies ignore this requirement."

Mark Noonan, managing principal of Integro Insurance Brokers' casualty practice and an attorney, agreed. "Both cases underscore the need for a commonsense approach to attendance policies," he said. "The ADA and the ADA Amendments Act protect injured workers with disabilities and require employers to consider reasonable accommodations for workers with disabilities to allow them to return to work."

Richard Lenkov, an attorney with Bryce Downey & Lenkov LLC, said that the Verizon and Sears cases should make every employer stand up and take notice. This is especially true given the ADAAA's broader coverage.

"Employers should engage in an interactive process to determine whether reasonable accommodation is possible prior to enforcing a strict termination policy," Lenkov said.

Case-by-case determination. For employers, Noonan advised that common sense and flexibility are essential when employees are trying to return to their jobs. He also said that while no-fault policies might have good intentions, they have unintended consequences that could put employers in legal hot water.

"I believe their intent is to be nondiscriminatory in that everyone gets treated the same regardless of their circumstances," Noonan said. But "I have never been a fan of rigid personnel policies because too many times such policies discriminate."

Lenkov said that these types of polices can work, but employers should look carefully at the wording of the policies and apply them on a case-by-case basis.

"If [employers] have policies whereby employees are terminated after a certain amount of time, regardless of the reason, they should be concerned, but they don't necessarily have to scrap that policy altogether," Lenkov said.

"It's my interpretation of the EEOC findings that the problem . . . wasn't that employees with disabilities were terminated, but that the policies were applied across the board without consideration of a particular employee's situation," he added.

Read more at the WorkersComp Forum homepage.

August 4, 2011

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