The Employer, Vol. 9 No. 2

The Employer Vol. 9 No. 2.pdf

The EEOC, Attendance Policies, & the “Duty to Accomodate” Under the ADA


Many employers have what is known as “no-fault” attendance policies.  These policies typically assess points for a variety of attendance and punctuality infractions, but do so without regard to the reason behind the absence.  There are a number of advantages to such policies, not the least of which is that they relieve the employer from the often difficult job of trying to evaluate the “worthiness,” or lack thereof, of any particular absence or punctuality issue.

Those employers who are subject to the FMLA are well aware that these policies, though otherwise lawful, cannot be used when the underlying reason for the event is related to an approved FMLA leave.  However, it appears that the EEOC is trying to expand those same, or similar, principles found in the FMLA to the ADA (the Americans with Disabilities Act).

In particular, the EEOC is currently challenging, in a suit pending in Illinois, a no-fault attendance policy because in the opinion of the EEOC, that policy fails to provide any accommodation to individuals with disabilities who are having attendance-related problems.  To a certain degree, this is not news to employers in Ohio and Michigan.  For many years, the Sixth Circuit Court of Appeals (the federal Court of Appeals that has jurisdiction over Ohio and Michigan), has held that an employee who comes to the end of an employer’s “maximum leave of absence” policy and/or no-fault attendance policy may, as a form of reasonable accommodation, require “a little more leave.”  To that extent, the recent activities of the EEOC are not news.

However, another recent development by the EEOC may cause considerable concern to Ohio and Michigan employers.  In a case recently brought by the EEOC, an employer refused to allow an employee who needed a reasonable accommodation under the ADA to take “intermittent leave.”  This particular employer was not subject to the FMLA, which is the primary source for the existence and administration of intermittent leave, but the EEOC is now advancing the argument that intermittent leave should be seen as a reasonable accommodation under the ADA.

To that extent, this foray by the EEOC into a new form of reasonable accommodation (the use of intermittent leave when needed by an employee with a disability), could be very threatening to employers.  According to the EEOC, an employer who is not subject to the FMLA (or an employer whose employee has already used up all of the allowable FMLA leave) should nevertheless consider intermittent leave as a reasonable accommodation under the ADA!


It is not clear how hard the EEOC will push this issue in test cases across the country. However, the burdens of administering intermittent leave, and the many ways in which it can be abused, are well known. The efforts of the EEOC to extend that set of issues into the arena of reasonable accommodations under the ADA is a potentially very troubling notion and something that employers should watch with great concern.

Therefore, employers who have no-fault attendance policies and other policies that affect leaves of absence, should make certain that their job descriptions are up to date and that those descriptions require an employee’s regular and predictable attendance at the job site as an essential job function. If an employee thereafter asks for an accommodation, the employer should be prepared to engage in the interactive process that normally accompanies a request for an accommodation under the ADA.  Employers should now also understand that, at least according to the EEOC, one of the reasonable accommodations that they should consider may be the granting of intermittent leave, and/or avoid treating such intermittent absences as a potential disciplinary event under a “no-fault” attendance policy, such as required of employers under the FMLA.


EEOC Alleges LGBT Protected Class

In its continued efforts to focus enforcement actions on LGBT employees, recently the EEOC filed two lawsuits alleging sexual orientation is a protected class under Title VII.  While the EEOC has previously held in internal administrative hearings that sexual orientation is a protected class, to date no Court has made a similar holding. Further, in prior cases alleging discrimination LGBT employees, the EEOC has alleged the claims were sex discrimination.  One case, filed in Pennsylvania against a medical care center, alleged a gay male employee was harassed because of his sexual orientation and called anti-gay epithets.  The other case, filed in Maryland, alleges a lesbian employee was called names by co-workers and supervisors, that a supervisor made suggestive gestures, and was eventually fired because of her sexual orientation.  The claims, filed in March, are in the very early stages of litigation.  If successful, they could expand the protections of Title VII to specifically include sexual orientation.


OSHA Relaxes Pleading Standards in Whistleblower Cases

Employers can expect an increase in whistleblower complaints under new guidance from OSHA that relaxes the standard for determining whether a violation of a whistleblower statute exists.  OSHA’s Whistleblower Protection Program enforces the whistleblower provisions of 22 whistleblower statutes.  Rights afforded by these whistleblower protection laws protect employees against unfavorable personnel action relating to workplace safety or health issues, asbestos in schools, cargo containers, airline and commercial motor carrier issues, food safety issues, health insurance matters, securities laws, and other protected activity.

In its revision to the Whistleblower Investigations Manual, which became effective January 28, 2016, OSHA states that the standard in whistleblower cases is now whether there is “reasonable cause” to believe a violation occurred.  The Manual states that the investigation must reach an objective conclusion that a reasonable judge could believe a violation occurred.  The standard is somewhat lower than the preponderance of the evidence standard.  Picture2The evidence does not need to establish conclusively that a violation did occur.  This change replaces a previously more rigorous standard that required the complainant to show initially that protected behavior or conduct was a “contributing factor” in the alleged adverse personnel action.  The employer could argue that it would have taken the same adverse personnel action regardless of any protected activity under the old standard.

The “reasonable cause” standard will probably result in OSHA finding more cases that should proceed on the merits beyond the initial investigative stage, leading to great numbers of whistleblower complaints that require employers to defend.  The change underscores the need for employers to maintain documentation of all disciplinary actions and employee performance issues, and to ensure that the policies and performance expectations are clearly conveyed to employees.



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