What Are Maximum Leave Policies?
Maximum leave policies cap the amount of leave an employee may take from work. They are sometimes referred to as no-fault attendance policies and can take many forms. While facially neutral, maximum leave policies are problematic when applied to leave taken for a disability because they can unfairly penalize disabled workers and overlook an employer’s obligation to provide reasonable accommodations.
Types of Maximum Leave Policies
A common policy for employers covered by the Family and Medical Leave Act (“FMLA”) provides employees with a maximum of 12 weeks of leave. Here is how an employer may apply such a policy:
Example: An employee provides her employer with a doctor’s note stating she needs time off work for a disability. After that, the employee regularly visits her doctor regarding her condition. At each visit, the doctor extends the employee’s leave of absence. The employee has been out of work for ten (10) weeks when she receives a letter from her employer. The letter explains that the employee’s 12 weeks of leave under the FMLA is about to expire and that her employment will terminate if she does not return to work.
Smaller employers, not covered by FMLA, may have a policy giving employees a fixed number of unplanned absences per year. Under these policies, an employee may be subject to termination for exceeding the allotted number of absences. Here is how an employer may apply such a policy:
Example: An employer has a policy allowing only seven absences in 12 months. An employee has an episodic disability, such as epilepsy or major depressive disorder. As a result of the disability, the employee suffers from periodic and unexpected symptoms that prevent her from working. She informs her employer that she may have unplanned absences or arrive to work late as a result. The employee then has ten unplanned absences in a year because of her disability. As such, the employer terminates her employment pursuant to its no-fault attendance policy.
Even a policy that provides employees a greater amount of leave may violate state and federal laws if it applies to employees with disabilities who need leave beyond the set period. For instance, in EEOC v. Sears, Roebuck and Co., Sears terminated employees on disability leave under their one-year maximum leave policy. A federal court entered a $6.2 million settlement for the employees Sears had fired under the 12-month leave policy.
The Problem With Maximum Leave Policies
It is important to note that a no-fault attendance policy with an exclusion for absences covered by a leave law or provided as a reasonable accommodation may not violate state and federal law. Instead, maximum leave policies run afoul when they apply to employees with disabilities who are either unexpectedly absent because of their condition or need leave beyond that provided by a company’s maximum leave policy. Here’s why:
Disability Discrimination
The ADA and FEHA prohibit employers from discriminating against employees based on their disability. An employer engages in disability discrimination when they penalize or terminate an employee for reasons related to disability.
For example, in Humphrey v. Memorial Hospital Ass’n, an employee who suffered from OCD engaged in time-consuming and compulsive rituals that often caused her to be late to work or miss work entirely. Her employer terminated her employment for the repeated absences and tardiness caused by her condition. The employee brought a claim for disability discrimination under the FEHA and ADA. In that case, the court of appeal explained that “[f]or purposes of the ADA, with few exceptions, conduct resulting from a disability is considered to be part of the disability, rather than a separate basis for termination.” And as such, “a jury could reasonably conclude that some of [the employee’s] attendance infractions amounted to conduct resulting from her disability…” and that she was fired “because of her disability” in violation of the ADA and FEHA.
Thus, a no-fault attendance policy that imposes discipline on employees who violate the policy for reasons related to their disability is a form of disability discrimination.
Failure to Accommodate and Engage in the Interactive Process
The ADA and FEHA also require employers to make reasonable accommodations for the known or perceived disabilities of an employee unless doing so would be an undue hardship. A reasonable accommodation may include providing an employee with a leave of absence for treatment or recovery. This means even if you have exhausted the maximum leave provided by company policy, your employer must consider providing you with an extended leave of absence as a reasonable accommodation.
There is not a minimum amount of time off work an employer must provide an employee as a reasonable accommodation. However, the law requires employers to engage in an interactive process “to determine effective reasonable accommodations” for an employee’s disability. Thus, if you ask your employer for extra time off work to recover from a disability, and your employer denies you additional leave solely because of the company’s maximum leave policy, then your employer has likely violated the ADA and FEHA.
EEOC Prosecution of Employer Maximum Leave Policies
The Equal Employment Opportunity Commission (“EEOC”), responsible for enforcing the ADA, has obtained substantial settlements against employers with inflexible leave policies. In doing so, the EEOC has explained:
[e]mployers may not apply a no-fault leave policy (under which the employees are automatically terminated after they have been on leave for a specified period of time) to an employee with a disability who, as a reasonable accommodation, needs additional leave beyond the employer’s set period; rather, the employer must provide the employee with additional leave unless (i) granting additional leave would cause undue hardship, or (ii) there is another effective accommodation that would enable the employee to perform the essential functions of his or her position.
The EEOC has also published guidance regarding no-fault attendance policies. The guidance reiterates that an employer may not apply a no-fault attendance policy to an employee with a disability. Instead, with few exceptions, the employer must “modify its no-fault leave policy.” The EEOC goes on to state that modifying workplace policies, including leave policies, is a form of reasonable accommodation.
Conclusion
All in all, your employer may not fire you under an inflexible maximum leave policy without first engaging in the interactive process and considering whether they could provide you with an extended leave of absence as an accommodation. If you have been or fear you may be fired pursuant to a maximum leave policy, please contact our office.
For more information on leaves of absence, check out my practice areas page on Medical Leaves.
