On July 17, 2018, the U.S. Equal Employment Opportunity Commission (EEOC) announced a $1 million settlement with Mueller Industries, Inc., settling a disability discrimination lawsuit based on its leave and attendance policies. 

• 180-Day Leave Policy: The Company maintained a maximum 180-day leave policy and terminated or failed to provide reasonable accommodation to employees with a disability who needed leave in excess of 180 days.
• Attendance Points Policy: The Company also implemented an attendance policy whereby points were issued for employee absences, regardless of the reason. Such policies are also referred to as no fault attendance policies.

A copy of EEOC’s Consent Decree with Mueller Industries is available here.  Notably, the Consent Decree mandates the revised policies and procedures include requirements for:

• Assurance that the Defendant look at each leave request and time off request made by a qualified individual with a disability on an individualized basis, that Defendant will engage in a good faith interactive process with the employee in attempting to provide the requested accommodation, and that requests for accommodation shall only be denied if granting the request would pose an undue hardship upon Defendant.
• Removal of requirement that employees who are on leave due to a medical condition for a specified time period be terminated and assurance that Defendant and its ADA Coordinator will consider additional leave as a form of accommodation and will consider the duration of such leave on a case by case basis pursuant to Defendant’s obligation to engage in interactive process and provide a reasonable accommodation under the ADA. 
• Emphasizing that Defendant’s revised policies under the ADA contains no requirement that employees be released to work without restriction or released to full duty. 

The EEOC has consistently taken the position that an employer’s strict adherence to a maximum leave policy or a no fault attendance policy violates the Americans with Disabilities Act (ADA).  For instance, in the EEOC’s Enforcement Guidance entitled, “Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act,” the EEOC addressed an employee’s need for leave beyond an employer’s set policy limits:

17. May an employer apply a “no-fault” leave policy, under which employees are automatically terminated after they have been on leave for a certain period of time, to an employee with a disability who needs leave beyond the set period?

No.  If an employee with a disability needs additional unpaid leave as a reasonable accommodation, the employer must modify its “no-fault” leave policy to provide the employee with the additional leave, unless it can show that: (1) there is another effective accommodation that would enable the person to perform the essential functions of his/her position, or (2) granting additional leave would cause an undue hardship.  Modifying workplace policies, including leave policies, is a form of reasonable accommodation.

Companies who have improperly maintained inflexible leave and attendance policies that do not provide reasonable accommodation to individuals with a disability have paid a hefty price for their violations.  Examples of large settlements with the EEOC for such violations include:

• Lowe’s Company, $8.6 million (2016)
• United Parcel Service, Inc., (UPS), $2 million (2017)
• Pactiv, $1.7 million (2015)