The EEOC has also published guidance for employers called The Americans With Disabilities Act: Applying Performance And Conduct Standards To Employees With Disabilities where examples #33-36 all involve intermittent leave situations.
There is also one reported lawsuit from the Southern District of Florida where a discrimination lawyer argued to the Florida Commission on Human Relations (“FCHR”) that an employer terminated an employee to avoid the inconvenience and disruption caused by accommodation of his intermittent leave requests. Gonzalez v. Wells Fargo Bank, N.A., No. 12-80937-CIV, 2013 U.S. Dist. LEXIS 139916, at *6 (S.D. Fla. Sep. 27, 2013).
Florida employers are reminded that one of the six national priorities identified by the EEOC’s Strategic Enforcement Plan (SEP) is for the EEOC to address emerging and developing issues in equal employment law, including issues involving the ADA
If you need any assistance in determining in addressing an EEOC charge of discrimination concerning your Florida business or if you need guidance in any employment policies, please email the Law Office of David Miklas, P.A. or call us at 1-772-465-5111.
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The following recent case should give Florida businesses guidance on the Americans with Disabilities Act.
An employee began working for a business where she performed satisfactorily to merit a pay raise. During her employment, the employee suffered from Type 2 Diabetes and Stage 4 Renal Failure which substantially limited her endocrine functions. The employee provided the company with medical notes which showed her diagnosis of diabetes and renal insufficiency, and her need for lifetime accommodation to regularly attend medical appointments. The employer initially granted intermittent leave to the employee by permitting her to take 1-4 days a month. However, two months later, the business abruptly made the decision to terminate all intermittent leave accommodations effective in three months. This resulted in the employee believing that she either had to work without the accommodation previously provided or resign. The business did not engage in the interactive process to determine if the employee could be provided with other reasonable accommodations (including but not limited to transferring to other positions within the company). The employee claimed that the termination of intermittent leave caused her immense stress and anxiety as she felt she could no longer attend all the required medical appointments without repercussions leading to her resignation.
The employee filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) alleging disability discrimination. The EEOC conducted an investigation and found reasonable cause to believe that the company violated the ADA. When the EEOC was unable to secure a settlement agreement acceptable to the EEOC, it sued the employer in federal court. EEOC v. Hawaii Medical Service Association, Case No. CV-18-00253-LEK-WRP. After 18 months of litigation, the employer settled the lawsuit by agreeing to pay $180,000.
Does your Florida business have a maximum leave policy (sometimes referred to as a “no fault” leave policy)? In Florida, a common policy, especially for entities covered by the FMLA, is a flat limit of 12 weeks for both extended and intermittent leave. Also, some Florida companies that are not covered by the FMLA, set lower overall caps. Many Florida businesses have policies that limit unplanned absences. As an example, such a policy might allow employees to have no more than five unplanned absences during a 12-month period, after which they will be subject to progressive discipline or termination. Usually, employees with disabilities are not exempt from these policies. However, this EEOC publication explains that such policies may have to be modified as a reasonable accommodation for absences related to a disability, unless the employer can show that doing so would cause undue hardship.
The EEOC publication also explained that when an employer assesses whether to grant leave as a reasonable accommodation, the employer may consider whether the leave would cause an undue hardship. If it would, the employer does not have to grant the leave. Determination of whether providing leave would result in undue hardship may involve consideration of such things as whether the need for intermittent leave on specific dates is predictable or unpredictable (for example, the specific day that an employee needs leave because of a seizure is unpredictable; intermittent leave to obtain chemotherapy is predictable).
Intermittent leave may be required under the FMLA, but what about under the ADA?
In addition to this huge settlement amount, the employer agreed to review and revise its policies and procedures regarding compliance with the ADA and provide training in employment discrimination law such as disability discrimination, the interactive process, and reasonable accommodation. The employer also agreed to have a centralized accommodation unit to maintain and track all disability accommodation requests and disability discrimination complaints, and ensure appropriate record keeping, reporting, and monitoring.
So, yes, Florida employers should realize that intermittent leave may be required under the ADA.
Florida businesses should understand that this is not any type of new position taken by the EEOC. The EEOC has published the document called, Employer-Provided Leave and the Americans with Disabilities Act in which it explains that as part of the employer’s “interactive process” with the employee, the employer may need additional information to confirm that the condition is a disability under the ADA, including whether the leave will be a block of time (for example, three weeks or four months), or intermittent (for example, one day per week, six days per month, occasional days throughout the year).