DOES YOUR MEDICAL LEAVE POLICY COMPLY WITH THE AMERICANS WITH DISABILITIES ACT?

Employers often implement and enforce medical leave policies in a rigid manner that does not comply with the Americans with Disabilities Act (ADA).  Such practices expose employers to claims of discrimination and to substantial damage awards.

This HR Law Insider article presents a recent example of an employer that tried to enforce a medical leave policy only to learn — the hard way — that it was violating federal law.

On Monday, the EEOC announced that  healthcare provider Dialysis Clinic, Inc. agreed to pay $190,000 to a former employee with breast cancer and furnish other relief to settle a federal disability discrimination lawsuit filed by the EEOC.  It was alleged that the dialysis clinic violated the ADA law by firing and then refusing to rehire a long-time nurse who needed more medical leave to complete her treatment for breast cancer.

DIALYSIS CLINIC MAKES A CLASSIC MISTAKE AND PAYS FOR IT

Francisca Lee had worked as a nurse at the Dialysis Clinic’s Sacramento Southgate location for 14 years when she took medical leave for mastectomy surgery and chemotherapy treatments.  After four months, Dialysis Clinic notified Lee by mail that she was being terminated for exceeding the time limit dictated by its medical leave policy, the EEOC said.  This was done despite Lee being on approved medical leave and cleared by her doctor to return to work without restrictions in less than two months.  Lee was told that she would have to reapply for open positions. However, when Lee did apply two months later, she was rejected, and, not long after, Dialysis Clinic hired a newly licensed nurse.

After an investigation by EEOC investigator Monica Colunga and after attempting to resolve the case through pre-litigation conciliation efforts, EEOC sued Dialysis Clinic.

EEOC San Francisco Acting Regional Attorney Jonathan Peck said, “Ms. Lee was a long-term employee who only needed two more months to recover and return to work.  Extending her medical leave would have posed little burden on Dialysis Clinic. Employers with inflexible leave policies lose the opportunity to help a valued employee return to work – and they’re violating the law.”

THE ADA REQUIRES FLEXIBILITY IN APPLYING LEAVE POLICIES AND OTHER TERMS AND CONDITIONS OF EMPLYMENT

Terminating a qualified employee because of a disability violates the ADA.  The law  requires an employer to provide reasonable accommodation to an employee or job applicant with a disability, unless doing so would impose an undue hardship for the employer.  Providing an extended medical leave can be a reasonable accommodation.

According to the consent decree settling the suit, Dialysis Clinic agreed to pay $190,000 in damages; revise its policies concerning reasonable accommodation; provide anti-discrimination training to human resources personnel; and post notices regarding the lawsuit. In addition, the employer will periodically report to the EEOC on its handling of extended medical leave requests.

“As a nurse, you understand that sometimes the healing process takes time,” said Lee. “I am pleased to know that Dialysis Clinic will now take steps to ensure that employees can take the time they need for medical reasons without having to worry about losing their jobs.”

CONCLUSION

Any time an employer is confronted with an employee that may need medical leave or some other accommodation to help with a serious medical condition, it should evaluate and determine whether it is complying with the ADA (and, for companies 50 employees or more, the Family Medical Leave Act).

The process of deciding on whether a reasonable accommodation is possible and practical is oftentimes difficult.  There is often great friction between the employee’s medical needs and the employer’s legitimate business needs.

If a requested accommodation poses an “undue burden” on the employer –if it is not objectively reasonable because it will pose too great a burden on the business — the employer is not required to provide that accommodation.  Any time an employer refuses an accommodation on the basis that it would create an undue burden, it should know that its decision may be scrutinized by the EEOC and, ultimately, by a jury.

In sum, when making a decision as to whether to accommodate a sick employee, (1) know that the ADA requires an accommodation unless it would impose an undue burden; (2) maintain openness and flexibility in enforcing leave and other policies; and (3) consult with counsel to ensure that you are making a decision that, if tested, is fully supportable.

PS  October is breast cancer awareness month.  Hopefully, through our collective efforts, this terrible disease will soon be eradicated.

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