The Equal Employment Opportunity Commission (EEOC) has intensified its focus on employers’ leave of absence and attendance policies, especially in light of new rules expanding the interpretation of the Americans with Disabilities Act (ADA). This means that employers should reevaluate their policies to ensure that enough “flexibility” is built in to accommodate employees with disabilities who have exhausted their entitlement under the Family Medical Leave Act (FMLA), or who have run afoul of attendance policies, due to a disability.

What policies are putting employers at risk?
Policies appearing inflexible and therefore subject to attack have provisions that:

• Charge absences against an employee, regardless of the reason for the absence (a so-called “no-fault” attendance policy);
• Require a full medical release to return to work without restrictions; and
• Provide for an employee’s automatic termination after expiration of the employee’s leave entitlement under the FMLA.

What is wrong with these policies?
As we have mentioned in prior email blasts, the new interpretations of the ADA shift primary importance to the employer’s efforts to provide reasonable accommodation. Giving a disabled employee additional unpaid leave
beyond FMLA entitlement might be required as a reasonable accommodation. Therefore, an automatic termination policy could be seen as running afoul of the ADA if enforced against an individual with a disability. Another reasonable accommodation might be allowing an employee to return to work despite restrictions, rather than requiring a full medical release.

What can employers do?
To try and head off challenges to your policies, review your handbook. If any of the above-mentioned issues exist, the handbook should be revised to permit more flexibility. Specifically, additional leave should be considered on a case-by-case basis, and clear exceptions for FMLA and disability-related absences should be carved out. Policies requiring a full medical release should be eliminated.

None of this is to say that employees can ignore leave policies altogether. Employers can always take proactive measures to prevent abuse, such as requiring employees to follow procedures for requesting leave or reporting absences, and imposing restrictions on moonlighting during leave. And employers should not assume that they will be required to give additional, unpaid leave. But policies that rule out such leave without a case-by-case analysis can get you in trouble.