Tuesday, March 12, 2013

Re-Visiting Leave as a Reasonable Accommodation Under the Americans with Disabilities Act

Attorney Ellen Girard Giorgiadis of Quarles & Brady wrote a nice brief discussion about leave as an accommodation under the Americans with Disabilities (ADA) and the Equal Employment Opportunity Commission's (EEOC) continued attack on employers with strict attendance policies upheld against individuals who may need more than the 12-week leave provided under the Family and Medical Leave Act (FMLA).

While it may be hard for some people to imagine that an employer may be found to have violated the ADA for not allowing an employee to be off work for more than 12 weeks, the EEOC and some courts have found this to be a reasonable accommodation and several cases the EEOC has prosecuted have resulted in multi-million dollar settlements:

  • In EEOC v. Sears Roebuck, filed in Chicago in 2004, the parties were embattled in a discovery war until 2009 when the case was resolved with a $6.2 million consent decree covering more than 250 claimants who had been separated under Sears’ 12-month leave policy.
  • In EEOC v. Denny’s, filed in Baltimore in 2006, the parties were embroiled in extensive discovery until 2011 when the parties entered into a $1.3 million consent decree covering 33 claimants who were separated pursuant to Denny’s maximum leave policy.
  • In EEOC v. Supervalu, filed in Chicago in 2009, the parties engaged in a fast-tracked discovery battle until 2010 when they entered into a $3.2 million consent decree covering more than 100 claimants who had been separated under Supervalu’s 12-month leave policy.
  • In EEOC v. Verizon, filed in Baltimore in 2011, the EEOC simultaneously filed a $20 million consent decree providing relief to 800 claimants who were disciplined or terminated under Verizon’s no-fault attendance and leave policies.
Back in August 2011, the EEOC had a panel discussion on the topic which prompted an article in the Wisconsin Law Journal on Wisconsin's case law on leave as a reasonable accommodation.  Then, back in April 2012, the 9th Circuit decided a case that held the plaintiff's attendance was an "essential job function" and that adjusting an employer's attendance policy was an unreasonable accommodation for purposes of the ADA--though it is important to keep in mind this was a fact-specific case.

Until Courts provide more guidance for employers to follow, it is best to be flexible and engage in the good 'ol interactive process when attendance becomes an issue for a disabled employee.  


  1. Has the re-visiting leave as a reasonable accommodation issue been decided by the US Supreme Court?