Employer Fails to Provide Leave of Absence to Probationary Employee, Pays the Price
January 14, 2015
Adam was a maintenance technician for EZEFLOW, a company which manufactures pipe fittings. He also was a marine corps veteran who served in both Iraq and Afghanistan.
Upon his discharge from the marines, Adam started his employment with EZEFLOW and quickly began experiencing seizures later determined to be caused by post-traumatic stress disorder (PTSD). Adam provided his employer a note from his doctor requesting that he remain off work for six weeks to deal with his medical condition.
The employer had a dilemma: Adam had only been working for the company for about 10 weeks at the time his doctor called for his leave of absence, which would begin about the time Adam’s probationary period with EZEFLOW would end. The company decided the probationary period took priority, and it terminated Adam instead of providing him any leave.
Hear that knock on the door? That’s the sound of the ADA coming to pay EZEFLOW an unwelcome visit. And the EEOC came along for the ride, too. Before you could say E-ZE-FLOW, the EEOC filed suit on behalf of Adam, alleging that the company violated the ADA because it terminated him instead of providing Adam the leave he requested. EEOC v. EZEFLOW (pdf)
Insights for Employers
The Court was not forced to make a decision here, as the case settled quickly after discovery began. In a consent decree entered by the court, the company agreed to pay Adam $65,000 and commit to extensive ADA training and non-discrimination in the future.
Let’s cut to the chase, as there are plenty of lessons in this short narrative:
1. We may wonder why the company was so quick to terminate Adam instead of providing him leave, but this scenario is not all that uncommon. On plenty of occasions, clients have called me wondering whether they need to provide a leave of absence or an alternative accommodation to an employee who recently began working. Keep in mind: there is no probationary status under the ADA you must treat these employees the same as the 20-year veteran. Employees enjoy the protections of the ADA during their candidacy and on day one of their employment. Even though FMLA does not apply in these situations, the ADA may very well apply, as was the case here.
2. One of EZEFLOW’s undoings was that it allegedly maintained a policy of providing up to 26 weeks of leave to non-probationary employees. In concept, I understand what the employer was aiming for, as it sought to provide a certain level of benefits to employees who had passed the probationary threshhold and enjoyed a more certain future with the company. However, these leave policies must be carefully weighed when a probationary employee seeks the same benefits as an ADA reasonable accommodation. Because the company did not make an exception to this policy for Adam pursuant to the ADA, it was a risky (and ultimately, costly) move under the ADA.
3. Remain committed to the ADA’s interactive process. To be clear, EZEFLOW didn’t have to roll over and automatically give Adam a six week leave of absence. It had the right to learn the basic facts of Adam’s medical condition, determine how it affected his job, and learn why a leave of absence was necessary and whether the length of such a leave would help him return to work. (Even the EEOC acknowledges in its guidance on reasonable accommodation an employer’s right to obtain this information.) Therefore, it is critical that we engage the employee in the interactive process at the earliest possible time. Talk to your employee! Doing so helps us understand what the employee might need to return to work (even if it’s a brief leave of absence), and it acts as a strong repellent to EEOC-initiated conciliation and litigation.
4. Conduct an undue hardship analysis and use this information in the interactive process. Before putting up a fight over whether to provide additional leave and how much to give, doesn’t it make sense first to analyze the impact the employee’s absence is having on your operations? If it’s not impacting your operations, that should be a key factor in granting additional leave. However, if it is impacting operations, you want to memorialize this earlier in the process — for example, were projects being pushed off or decisions being made by less capable employees? Was customer service adversely affected or were others required to take on more work? Click here for my list of “undue hardship” questions to consider. Once you have conducted this analysis, tell the employee about it. Both in person (if possible) and in follow-up correspondence, tell the employee (tactfully and with empathy to his situation) the difficult position you’re in – that x, y, and z are occurring as a result of his absence – and, as a result, it is critical that you obtain a reasonable estimate of when he will be able to resume all essential functions of his employment with or without an accommodation so that you can better assess whether leave can be provided as a reasonable accommodation. That’s what the employer did in a previous situation I wrote about, and the court endorsed the employer’s actions.