EEOC Finds "Neutral" Leave Policy Not So Accommodating under ADA

When it comes to the Americans with Disabilities Act (ADA), a totally "neutral" leave policy can be discriminatory, as a recent case against Verizon Communications, Inc., demonstrates.

Verizon had a "no fault" leave policy that subjected employees to progressive discipline (up to and including termination) after they reached a certain number of absences – regardless of the reason for them. The Equal Employment Opportunity Commission (EEOC) sued Verizon, maintaining that its failure to take into account the reasons for the absences violated the ADA because it did not provide reasonable accommodation for absences caused by disabilities. The case resulted in the largest ADA settlement in the EEOC's history: $20 million.

The lesson here is that no matter how non-discriminatory or neutral a company policy may seem, it must be flexible enough to provide reasonable accommodation for disabled employees. In the context of a leave policy, this requires a case-by-case assessment of whether the ADA applies before disciplining or terminating an employee for excessive absences. Employers should review their leave and other policies to ensure that this flexibility exists and should provide employment law and ADA training for their managers and HR personnel.

Posted by Ken Grosserode on August 10, 2011 Ken Grosserode, a Managing Legal Editor at WeComply, writes and edits the content for e-learning courseware and related compliance training resources. Earlier in his career, Ken worked for the U.S. Department of Justice after being accepted into the Attorney General's Honors Program. He later practiced law as an associate attorney at Berry, Appleman & Leiden LLP in San Francisco. Ken holds a J.D. from the University of San Francisco School of Law.