- Blood Bank of Hawaii has agreed to pay $175,000 to settle a disability discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC).
- The non-profit blood collection company required employees to return to work without limitation at the end of the 12 weeks allowed under the Family and Medical Leave Act (FMLA), the EEOC says. It also allegedly fired employees who had exhausted leave under the FMLA but needed more time, or who were unable to return to work without restrictions, in violation of the Americans with Disabilities Act (ADA).
- Under a two-year consent decree, the organization agreed to retain an EEO consultant, designate an in-house ADA coordinator, revise and distribute its ADA policy, provide training, and provide a log for accommodation requests under the ADA. "We continue to see employers not properly engaging in the interactive process," regional attorney for the EEOC's Los Angeles District, Anna Park, said in an EEOC statement announcing the settlement.
Addressing inflexible leave policies that discriminate against individuals with disabilities is one the priorities identified in the EEOC's current Strategic Enforcement Plan.
When an employee has exhausted the leave the employer provides as a benefit, including leave exhausted under a workers' compensation program, FMLA, or state or local laws, an employer must consider providing unpaid leave to an employee with a disability as a reasonable accommodation if the employee requires it, so long as it does not create an undue hardship for the employer, the EEOC says in Employer-Provided Leave and the Americans with Disabilities Act.
Several employers have been taken to court over inflexible leave policies. In a lawsuit filed late last month, the EEOC alleged one of the largest tank truck carriers in the United States violated federal law when it applied an inflexible leave policy to fire two employees with disabilities who had exhausted their medical leave. Similarly, employees sued United Airlines earlier this year, claiming that United violated the ADA with its 100% healed return-to-work policy.
Employers are expected to engage in an interactive, good-faith process to determine worker accommodations. Communication is key, and it may take some back-and-forth for employers and employees to arrive at an effective accommodation. The 7th U.S. Circuit of Appeals complicated the question of leave as an accommodation, however, stating in Severson v. Heartland Woodcraft, Inc. that "a multimonth leave of absence is beyond the scope of a reasonable accommodation under the ADA."
Regardless, experts have said that employers are still required to engage in the good-fath process. An employer can show its good faith in many ways, including meeting with the employee; requesting information about the employee’s conditions and limitations; asking the employee what accommodation is desired; showing some signs of having considered the request; and offering and discussing available alternatives if the request is overly burdensome.