A recent $20 million EEOC settlement with Verizon illustrates the hazards that the disability laws pose for employers. According to the complaint in EEOC v. Verizon Maryland, Inc., Case No. 11-CV-01832-JKB (D. Md. Jul. 5, 2011), Verizon had a “no fault” attendance policy, which assigned “chargeable absences” to any absence except for certified leave under the Family Medical Leave Act, jury or military duty, death in the immediate family, or excused time without pay. An employee who accumulated sufficient chargeable absences was subject to discipline, up to discharge. The policy did not excuse disabled employees who needed leave as a reasonable accommodation for their disabilities. As a result, according to the complaint, disabled employees were treated unfairly based on their disabilities.
In the consent decree that settled the case, Verizon agreed to pay $20 million to the affected employees, and to implement a new attendance policy, under which it would determine on a case-by-case basis whether an absence should be chargeable. If each of the following is satisfied the absence will not be chargeable: (a) the employee has a mental or physical impairment that substantially limits one or more major life activities of such individual as defined by the ADA; (b) the employee’s absence was caused by a disability; (c) the employee requested a period of time off from work due to a disability; (d) the employee’s absences have not been unreasonably unpredictable, repeated, frequent or chronic; (e) the employee’s absences are not expected to be unreasonably unpredictable, repeated, frequent or chronic; (f) Verizon was able to determine, from the request through the interactive reasonable accommodation process, a definite or reasonably certain period of time off that the employee would need because of a disability; and (g) the employee’s need for time off from work as a reasonable accommodation does not pose a significant difficulty or expense for Verizon’ s business.
The EEOC settlement came on top of a settlement with the California Department of Fair Employment and Housing based on allegations that its attendance policy led to violations of the California Family Rights Act. Under that settlement agreement, Verizon agreed to pay up to $6 million to California employees affected by the policy.
Claims under the disability laws have increased over the past several years. The EEOC reports the number of disability complaints ranged between 15,000 and 18,000 from 1997 to 2007, and then rose to 19,453 in 2008, 21,451 in 2009 and 25,165 in 2010. A study by the UCLA Law|Rand Center for Law & Public Policy reported that disability complaints rose 69 percent between 1997 and 2008.
Because the disability laws are complex and overlap with workers compensation and leave statutes, managers and human resource professionals should be sure they have a firm grasp of the applicable principles before taking adverse action of any kind against those with disabilities. Here are two rules of thumb: