EEOC Releases Updated Employment Retaliation Enforcement Guidance

Last month, the EEOC issued a draft of updated enforcement guidelines covering its investigations of retaliation allegations.   These were last updated in 1998.   As discussed below, the Guidelines take a few positions worth noting by employers. For instance, the EEOC explains that employees who make false allegations during an internal EEO investigation are protected from disciplinary actions.  Similarly, internal or formal complaints about incidents which are not yet severe or pervasive enough to constitute actionable harassment are also protected. However, there is no protection under the opposition clause for “complaints about trivial matters that no reasonable person could believe could become harassment or other discrimination.”  The EEOC also specifically finds that HR employees and managers are protected from retaliation and notes that disciplinary action against employees for violating pay confidentiality policies may be unlawfully retaliatory if the employee was also complaining about pay discrimination.

The first section discusses the types of “participation” and “opposition” that could constitute protected activity.  The obvious areas including filing a Charge, threatening to file a Charge, pursuing an internal EEO complaint, participating in an internal or EEOC investigation, rejecting sexual advances, refusing to discriminate against subordinates, and requesting a reasonable accommodation for a disability or religious practice.   However, the EEOC also included in this reporting a sexual assault to the police, reporting alleged discrimination to the news media or the employer’s customers, picketing, and passively refusing to comply with an unlawful direction to discriminate.  Even though an employee engages in protected activity, however, does not mean that he or she is immune from disciplinary action for also engaging in improper conduct or poor job performance.   Accordingly, employees cannot attempt to prevent disciplinary action simply by engaging in protected activity.

Even if the employee is incorrect about whether discrimination or harassment occurred, the employee need only have a reasonable good faith belief that the underlying employment action is illegal to be covered by the opposition clause.   For instance, an employee may protest workplace conduct before it becomes serious and pervasive enough to constitute harassment. (However, there is no protection under the opposition clause for “complaints about trivial matters that no reasonable person could believe could become harassment or other discrimination.”).  The EEOC will consider the employee’s opposition conduct to be protected unless his or her complaint is patently specious.  As an example, the EEOC described an employee who complained about an unfair pay raise, but did not make any comparison to anyone outside his protected class.   Similarly, an employee who complains about not receiving a promotion even though she admittedly did not possess the required degree or license would not have a reasonable belief about possible discrimination. 

That being said, the EEOC does not require a reasonable belief about the legality of the underlying activity when the employee is covered by the participation clause (i.e., filing a charge or participating in an EEOC investigation).  This is true even if the underlying alleged discriminatory action was legal or the Charge was untimely.  It even notes that the employee’s allegations may be malicious, defamatory and wrong, but still be protected.  Even though it recognizes that many federal courts – including the Sixth Circuit which has jurisdiction over Ohio and the Eleventh Circuit with jurisdiction over Georgia – do not consider internal EEO and harassment complaints to be covered by the participation clause unless the employee also filed a Charge with the EEOC, the EEOC explicitly states that it views internal EEO complaints to be protected “participation” which does not require the employee to have a reasonable belief about the validity of the allegations or to even tell the truth.  (Nonetheless, the EEOC continues to discuss situations involving internal EEO complaints under the opposition standard throughout the Guidance).  Accordingly, this would prevent an employer from taking disciplinary action against an employee who provided incorrect (and possibly false and fabricated information) during an internal EEO or harassment investigation:

Thus, the application of the participation clause cannot depend on the substance of testimony because, “[i]f a witness in [an EEO] proceeding were secure from retaliation only when her testimony met some slippery reasonableness standard, she would surely be less than forth-coming.” These protections ensure that employers cannot intimidate their employees into forgoing the complaint process and that those investigating can obtain witnesses’ unchilled testimony. 

Encompasses Internal Complaints. The Commission also views “participation” as encompassing internal EEO complaints to company management, human resources, or otherwise made within an employer’s internal complaint process before a discrimination charge is actually filed with the EEOC or a state or local Fair Employment Practices Agency.  The text of Title VII prohibits retaliation against those who “participated in any manner in an investigation, proceeding, or hearing under this subchapter.”

There were a few areas of protected activity that the EEOC discussed more extensively than others.  First, it emphasized that the actions of HR employees, managers and supervisors would be constitute protected activity even if their job duties involved remedying harassment and discrimination and granting reasonable accommodations, etc.  The EEOC also suggested that an employee’s violation of pay confidentiality policies could constitute protected conduct and notes that the NLRA and certain Executive Orders governing federal contractors and subcontractors cover the confidentiality of compensation information.  However, all of the examples provided in the Guidance involved employees who were protesting pay discrimination based on specific information, which would constitute protected opposition discussed earlier in the Guidance.

Employment and other actions can be retaliatory even if they do not constitute actionable discrimination because the retaliation standard is broader than the discrimination standard.   An action can constitute retaliation if it would deter a reasonable person from engaging in protected conduct, even if it does not actually deter the plaintiff.  The standard obviously includes various employment actions, but can also include non-employment actions, such as retaliation against someone associated with the protected employee, defamation, bad-mouthing the employee to the media, poor job references, surveillance, closer scrutiny of performance, disclosing confidential information about the employee, etc.   That being said, minor and trivial actions are still not actionable.

An employee’s opposition activity can lose statutory protection when the employee’s opposition manifests itself in an unreasonable manner. As examples, the EEOC discusses employees who make an unreasonable number of specious complaints, badgers a co-worker to provide or change a witness statement, or involves illegal conduct (such as threat of violence).  “Opposition to perceived discrimination does not serve as license for the employee to neglect job duties. If an employee’s protests render the employee ineffective in the job, the retaliation provisions do not immunize the employee from appropriate discipline or discharge.”   

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

  

Pregnancy Discrimination: Abstract New EEOC Guidelines vs. Real World

At the end of last month, the EEOC updated the pregnancy discrimination guidelines it issued last summer in the wake of March’s Supreme Court’s decision in Young v. UPS.   Ignoring the Court’s significant criticisms of last year’s guidelines, the EEOC notes in its press release that it made only a few changes to reflect the Court’s new pregnancy discrimination standard.  It has completely replaced the former guidelines on its website with the new guidelines, so it’s virtually impossible to evaluate the breadth and significance of the changes.   Coincidentally, about a week later, the Sixth Circuit dismissed the FMLA and pregnancy discrimination claims of an employee who was fired during her pregnancy because she could not perform the essential functions of her job and refused to return FMLA forms.   Huffman v. Speedway LLC, No. 14-1668 (6^th Cir. 7-1-15).

Last summer’s EEOC’s pregnancy discrimination guidelines provided that employers should provide light duty and time off to pregnant employees under the same conditions as other non-pregnant employees.   In particular, the EEOC’s standard was that pregnant employees “be treated the same for all employment-related purposes as other persons no so affected by similar in their ability or inability to work.”  As examples, the EEOC posited that pregnant employees must be provided with light duty if light duty is provided to employees with work related injuries and must provide the same reasonable accommodation provided to an employee with a disability if it also would not create an undue hardship. 

In March, however, the Supreme Court strongly criticized the EEOC’s new positions on pregnancy discrimination and refused to give them any significant weight in its decisionmaking. Both before and immediately after the passage of the PDA, the EEOC guidelines required only that pregnancy be treated the same as other medical conditions:

“Disabilities caused or contributed to by preg­nancy . . . for all job-related purposes, shall be treated the same as disabilities caused or contributed to by other medical conditions.”

  In rejecting the recent EEOC guidance, the Court cited concerns with the EEOC’s

timing, “consistency,” and “thor­oughness” of “consideration.” The EEOC promulgated its 2014 guidelines only recently, after this Court had granted certiorari in this case. In these circumstances, it is fair to say that the EEOC’s current guidelines take a position about which the EEOC’s previous guidelines were silent. And that position is inconsistent with positions for which the Government has long advocated. . . . Nor does the EEOC explain the basis of its latest guidance. Does it read the statute, for example, as embodying a most-favored-nation status?   Why has it now taken a position contrary to the litigation position the Government previously took?   Without further explanation, we cannot rely significantly on the EEOC’s determination.

 

The new guidelines strike significant portions of its prior discussions and examples about finding pregnancy discrimination when a pregnant employee is treated differently than another employee with similar abilities to work (particularly with respect to light duty requests) and, instead, attempt to explain the Supreme Court’s similarly new position on pregnancy discrimination.   “Employer policies that do not facially discriminate on the basis of pregnancy may nonetheless violate the provision of the PDA where they impose significant burdens on pregnant employees that cannot be supported by a sufficiently strong justification.” 

A plaintiff need not resort to the burden shifting analysis set out in McDonnell Douglas Corp. v. Green in order to establish an intentional violation of the PDA where there is direct evidence that pregnancy-related animus motivated the denial of light duty. Absent such evidence, however, a plaintiff must produce evidence that a similarly situated worker was treated differently or more favorably than the pregnant worker to establish a prima facie case of discrimination.

According to the Supreme Court's decision in Young v. United Parcel Serv., Inc., a PDA plaintiff may make out a prima facie case of discrimination by showing "that she belongs to the protected class, that she sought accommodation, that the employer did not accommodate her, and that the employer did accommodate others 'similar in their ability or inability to work.'" As the Court noted, "[t]he burden of making this showing is not 'onerous.'" For purposes of the prima facie case, the plaintiff does not need to point to an employee that is "similar in all but the protected ways." For example, the plaintiff could satisfy her prima facie burden by identifying an employee who was similar in his or her ability or inability to work due to an impairment (e.g., an employee with a lifting restriction) and who was provided an accommodation that the pregnant employee sought.

Once the employee has established a prima facie case, the employer must articulate a legitimate, non-discriminatory reason for treating the pregnant worker differently than a non-pregnant worker similar in his or her ability or inability to work. "That reason normally cannot consist simply of a claim that it is more expensive or less convenient to add pregnant women to the category of those ('similar in their ability or inability to work') whom the employer accommodates."

Even if an employer can assert a legitimate non-discriminatory reason for the different treatment, the pregnant worker may still show that the reason is pretextual. Young explains that

[t]he plaintiff may reach a jury on this issue by providing sufficient evidence that the employer's policies impose a significant burden on pregnant workers, and that the employer's "legitimate, nondiscriminatory" reasons are not sufficiently strong to justify the burden, but rather-when considered along with the burden imposed-give rise to an inference of intentional discrimination.

An employer's policy of accommodating a large percentage of nonpregnant employees with limitations while denying accommodations to a large percentage of pregnant employees may result in a significant burden on pregnant employees. For example, in Young the Court noted that a policy of accommodating most nonpregnant employees with lifting limitations while categorically failing to accommodate pregnant employees with lifting limitations would present a genuine issue of material fact.

That being said, the Sixth Circuit soon thereafter affirmed the summary judgment dismissal of pregnancy discrimination and FMLA claims brought by a pregnant plaintiff who was fired during her pregnancy when she could not perform all of the essential functions of her position and refused to return the FMLA forms (after having already provided other letters from her physician explaining her work restrictions).  Huffman v. Speedway LLC, No. 14-1668 (6^th Cir. 7-1-15).

According to the Court’s opinion, the plaintiff worked as a shift leader and sometimes worked in the store alone.  About four months into her pregnancy, she presented a doctor’s note explaining that she could not work more than 8 hours and needed a 15 minute break every four hours.  Her request was granted.  After experiencing some hip pain a month later, her doctor sent a note that she should not engage in activities which could cause her to fall or drop something on herself. When the employer asked the plaintiff which job duties were concerning to her, she identified: taking out the trash, standing for long periods of time, squatting, bending, leaning over, climbing ladders and lifting heavy objects.   Seeking more expert opinion on the plaintiff’s abilities, the employer requested her physician to evaluate her abilities to perform her job duties.  The physician indicated that she should perform light medium work, not lift over 20 pounds, not climb, and not frequently lift over 10 pounds, but that she could bend, squat, kneel, stand and walk for short periods.  He also advised her to avoid certain job duties for the remainder of her pregnancy, including cleaning the coolers, making tea, emptying trash, stocking outside, cleaning baseboards, walls, windows and restrooms, etc.  The plaintiff admitted that this mean that certain job duties would not be performed whenever she worked alone.

The employer indicated that it could not accommodate these medical restrictions, that the plaintiff could not return to work until the restrictions were lifted and that she should take FMLA leave or, if ineligible, personal leave.  Despite her having already provided a detailed medical opinion, the employer then sent her an FMLA forms to complete, which the plaintiff refused to do since she wanted to remain at work.  The employer explained that it might provide her with personal leave after she exhausted FMLA leave, but it would not guarantee returning her to her shift leader position after the FMLA period lapsed.  She was also informed that if she refused to complete the FMLA paperwork, she would be fired for job abandonment.  While the plaintiff took vacation days, her FMLA deadline passed and the employer denied her FMLA leave.  However, it offered her personal leave if she returned the paperwork within two weeks.  Again, the plaintiff refused.  Accordingly, her employment was terminated several weeks later and the litigation ensued.

The Court dismissed her involuntary/interference FMLA leave claim on the basis it was not ripe.  In the Sixth Circuit, a plaintiff cannot sue for being involuntarily placed on FMLA leave (when the plaintiff wants to remain at work) until after the plaintiff seeks FMLA leave and is denied on the grounds that it had been exhausted because of the involuntary FMLA leave.

While being forced to take unpaid leave has an effect similar to being suspended without pay, the statute does not grant employees the right to be free from suspension. Several of our sister circuits have therefore held that involuntary FMLA leave does not directly injure an employee’s FMLA rights. . . .

We nonetheless recognize that involuntary FMLA leave has the potential to indirectly interfere with an employee’s FMLA rights. An employer who forces an employee who does not have a job-restricting serious health condition—i.e., an employee who remains capable of performing all essential job duties—to take FMLA leave may improperly exhaust the twelve weeks of leave to which the employee is statutorily entitled each year. . . . But the injury to the employee’s FMLA rights would remain inchoate unless she develops a serious health condition within a year and requests FMLA leave. If the employer were to grant the employee the full twelve weeks of leave to which she is entitled—i.e., not counting the previous involuntary FMLA leave against her annual limit—the employee would not suffer a cognizable injury under the FMLA. Therefore, an involuntary-leave interference claim “ripens only when and if the employee seeks FMLA leave at a later date, and such leave is not available because the employee was wrongfully forced to use FMLA leave in the past.”

The Court refused to recognize her opposition to involuntary leave as an FMLA retaliation claim either:

Because involuntary leave cannot by itself violate the FMLA, opposing involuntary leave is not protected conduct under the statute. Therefore, termination for refusing involuntary leave is not retaliation.

The Court rejected the plaintiff’s argument that the employer’s citation to her pregnancy as a reason to place her on involuntary medical leave constituted direct evidence of discrimination.   In light of her own physician’s instructions, this was not a stereotyping case.  Bizarrely, the plaintiff attacks the employer’s policy (which mostly quotes the FMLA regulations) that medical conditions related to pregnancy may constitute a serious health condition under the FMLA.  The Court correctly found the policy does not distinguish between providing leave for pregnancy and other serious health conditions.  In any event, the Court decided that the employer was too straightforward to be trying to hide discrimination:

Even if Speedway had misidentified the reason for Huffman’s FMLA leave, the paperwork would not be direct evidence because we are not required to conclude that Speedway acted with discriminatory motive. The existence of an ulterior motive that Speedway was trying to cover up with an “invented reason” must be inferred. A second inference is required to conclude that the ulterior motive was pregnancy discrimination.

 

Ultimately, the plaintiff’s discrimination claim failed because she failed to submit any admissible evidence that non-pregnant employees were treated more favorably.  All she had was her own hearsay testimony based on what she heard from co-workers who believed that other employees had been placed on light duty when faced with similar medical restrictions.

 

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

EEOC Issues New Guidance For Employers Under the ADA on Holding Employees Accountable for Performance and Conduct Standards.

Yesterday, the EEOC issued a question-and-answer guide for employers on how to address performance and conduct issues with employees with disabilities. “The new guide makes clear that employers can apply the same performance standards to all employees, including those with disabilities, and emphasizes that the ADA does not affect an employer’s right to hold all employees to basic conduct standards. At the same time, however, employers must make reasonable accommodations that enable individuals with disabilities to meet performance and conduct standards. . . . Other topics addressed include issues related to attendance, dress codes, and drug and alcohol use, and the circumstances in which employers can ask questions about an employee’s disability when performance or conduct problems occur.”

For instance, the EEOC guide provides that “[a]n employee with a disability must meet the same production standards, whether quantitative or qualitative, as a non-disabled employee in the same job. Lowering or changing a production standard because an employee cannot meet it due to a disability is not considered a reasonable accommodation. However, a reasonable accommodation may be required to assist an employee in meeting a specific production standard.”

By way of example, the EEOC described the following situation: “Last year Nicole received an “above average” review at her annual performance evaluation. During the current year Nicole had to deal with a number of medical issues concerning her disability. As a result, she was unable to devote the same level of time and effort to her job as she did during the prior year. She did not request reasonable accommodation (i.e., inform the employer that she requires an adjustment or change as a result of a medical condition). The quantity and quality of Nicole’s work were not as high and she received an “average” rating. The supervisor does not have to raise Nicole’s rating even though the decline in performance was related to her disability.”

Even if the employee raises the issue of her disability upon receiving notice of the lower performance evaluation rating, the employer is not required to raise the performance evaluation rating because of the employee’s late notice or belated request for an accommodation. Nonetheless, once a request for a reasonable accommodation is made, the employer should explore the accommodation before issuing future corrective action or performance evaluations. For instance, if the employee requests an accommodation after the employer verbally warns the employee that a written warning will be issued if her performance does not improve within a month, the employer is not required to withdraw the one-month evaluation warning period, but should engage in the accommodation process (i.e., request medical documentation and explore the proposed accommodation) before instituting the one-month evaluation period. Importantly, if the employee waited until being informed of his/her termination from employment to inform the employer of a disability and request a reasonable accommodation, the employer is generally not required to postpone the employee’s termination. “The employer may refuse the request for reasonable accommodation and proceed with the termination because an employer is not required to excuse performance problems that occurred prior to the accommodation request. Once an employer makes an employee aware of performance problems, the employee must request any accommodations needed to rectify them.”

“When an employee does not give notice of the need for accommodation until after a performance problem has occurred, reasonable accommodation does not require that the employer (1) tolerate or excuse the poor performance; (2) withhold disciplinary action (including termination) warranted by the poor performance; (3) raise a performance rating; or (4) give an evaluation that does not reflect the employee’s actual performance.”

The EEOC also explained that “[i]f an employee’s disability does not cause the misconduct, an employer may hold the individual to the same conduct standards that it applies to all other employees. In most instances, an employee’s disability will not be relevant to any conduct violations.” By way of example, the EEOC described “[a] blind employee has frequent disputes with her supervisor. She makes personal phone calls on company time, despite being told to stop. She routinely walks away from the job to smoke a cigarette despite warnings that she can do so only on breaks. She taunts the supervisor and disobeys his instructions regarding safe use of equipment. The employee’s actions are unrelated to her disability and the employer may discipline her for insubordination.”

“The ADA generally gives employers wide latitude to develop and enforce conduct rules. The only requirement imposed by the ADA is that a conduct rule be job-related and consistent with business necessity when it is applied to an employee whose disability caused her to violate the rule. Certain conduct standards that exist in all workplaces and cover all types of jobs will always meet this standard, such as prohibitions on violence, threats of violence, stealing, or destruction of property. Similarly, employers may prohibit insubordination towards supervisors and managers and also require that employees show respect for, and deal appropriately with, clients and customers. Employers also may (1) prohibit inappropriate behavior between coworkers (e.g., employees may not yell, curse, shove, or make obscene gestures at each other at work); (2) prohibit employees from sending inappropriate or offensive e-mails (e.g., those containing profanity or messages that harass or threaten coworkers); using the Internet to access inappropriate websites (e.g., pornographic sites, sites exhibiting crude messages, etc.); and making excessive use of the employer’s computers and other equipment for purposes unrelated to work; (3) require that employees observe safety and operational rules enacted to protect workers from dangers inherent in certain workplaces (e.g., factories with machinery with accessible moving parts); and (4) prohibit drinking or illegal use of drugs in the workplace. . . . Whether an employer’s application of a conduct rule to an employee with a disability is job-related and consistent with business necessity may rest on several factors, including the manifestation or symptom of a disability affecting an employee’s conduct, the frequency of occurrences, the nature of the job, the specific conduct at issue, and the working environment. These factors may be especially critical when the violation concerns “disruptive” behavior which, unlike prohibitions on stealing or violence, is more ambiguous concerning exactly what type of conduct is viewed as unacceptable.”

By way of example, the EEOC provided the following hypotheticals to illustrate these principles:
Example 17: A telephone company employee’s job requires her to spend 90% of her time on the telephone with coworkers in remote locations, discussing installation of equipment. The company’s code of conduct requires workers to be respectful towards coworkers. Due to her psychiatric disability, the employee walks out of meetings, hangs up on coworkers on several occasions, and uses derogatory nicknames for coworkers when talking with other employees. The employer first warns the employee to stop her unacceptable conduct, and when she persists, issues a reprimand. After receiving the reprimand, the employee requests a reasonable accommodation. The employee’s antagonistic behavior violated a conduct rule that is job-related and consistent with business necessity and therefore the employer’s actions are consistent with the ADA. However, having received a request for reasonable accommodation, the employer should discuss with the employee whether an accommodation would assist her in complying with the code of conduct in the future.

Example 20: An employee informs her supervisor that she has been diagnosed with bipolar disorder. A few months later, the supervisor asks to meet with the employee concerning her work on a recent assignment. At the meeting, the supervisor explains that the employee’s work has been generally good, but he provides some constructive criticism. The employee becomes angry, yells at the supervisor, and curses him when the supervisor tells her she cannot leave the meeting until he has finished discussing her work. The company terminates the employee, the same punishment given to any employee who is insubordinate. The employee protests her termination, telling the supervisor that her outburst was a result of her bipolar disorder which makes it hard for her to control her temper when she is feeling extreme stress. She says she was trying to get away from the supervisor when she felt she was losing control, but he ordered her not to leave the room. The employee apologizes and requests that the termination be rescinded and that in the future she be allowed to leave the premises if she feels that the stress may cause her to engage in inappropriate behavior. The employer may leave the termination in place without violating the ADA because the employee’s request for reasonable accommodation came after her insubordinate conduct.

The EEOC also recognized that “[a]n employer may enforce conduct rules that are not found in workplace policies, employee handbooks, or similar documents so long as they are: (1) job-related and consistent with business necessity, and (2) applied consistently to all employees and not just to a person with a disability. Many times, the proscribed conduct is well understood by both the employer and employees as being unacceptable without being formally written, such as a prohibition on insubordination.” By way of example, “Mary’s disability has caused her to yell at and insult her supervisor and coworkers. There is no formal policy addressing such conduct, nor need there be. Prohibiting an employee from acting belligerently towards a supervisor or coworkers is job-related and consistent with business necessity, and thus Mary’s supervisor may discipline her as long as the same discipline would be imposed on a non-disabled employee for the same conduct.”

With respect to attendance expectations, ”[e]mployees with disabilities are entitled to whatever forms of leave the employer generally provides to its employees. This means that when an employee with a disability seeks leave under an employer’s regular leave policies, she must meet any eligibility requirements for the leave that are imposed on all employees (e.g., only employees who have completed a probation program can be granted advance leave). Similarly, employers must provide employees with disabilities with equal access to programs granting flexible work schedules and modified schedules. . . . Although the ADA may require an employer to modify its time and attendance requirements as a reasonable accommodation (absent undue hardship), employers need not completely exempt an employee from time and attendance requirements, grant open-ended schedules (e.g., the ability to arrive or leave whenever the employee’s disability necessitates), or accept irregular, unreliable attendance. Employers generally do not have to accommodate repeated instances of tardiness or absenteeism that occur with some frequency, over an extended period of time and often without advance notice. 73 The chronic, frequent, and unpredictable nature of such absences may put a strain on the employer’s operations for a variety of reasons, such as . . . (1) an inability to ensure a sufficient number of employees to accomplish the work required; (2) a failure to meet work goals or to serve customers/clients adequately; (3)a need to shift work to other employees, thus preventing them from doing their own work or imposing significant additional burdens on them; (4) incurring significant additional costs when other employees work overtime or when temporary workers must be hired. Under these or similar circumstances, an employee who is chronically, frequently, and unpredictably absent may not be able to perform one or more essential functions of the job, or the employer may be able to demonstrate that any accommodation would impose an undue hardship, thus rendering the employee unqualified.”

By way of example, “[a]n employee with asthma who is ineligible for FMLA leave works on an assembly line shift that begins at 7 a.m. Recently, his illness has worsened and his doctor has been unable to control the employee’s increasing breathing difficulties. As a result of these difficulties, the employee has taken 12 days of leave during the past two months, usually in one- or two-day increments. The severe symptoms generally occur at night, thus requiring the employee to call in sick early the next morning. The lack of notice puts a strain on the employer because the assembly line cannot function well without all line employees present and there is no time to plan for a replacement. The employer seeks medical documentation from the employee’s doctor about his absences and the doctor’s assessment of whether the employee will continue to have a frequent need for intermittent leave. The doctor responds that various treatments have not controlled the asthmatic symptoms, there is no way to predict when the more serious symptoms will suddenly flare up, and he does not expect any change in this situation for the foreseeable future. Given the employee’s job and the consequences of being unable to plan for his absences, the employer determines that he cannot keep the employee on this shift. Assuming no position is available for reassignment, the employer does not have to retain the employee.”

As an another example, “an employee works as an event coordinator. She has exhausted her FMLA leave due to a disability and now requests additional intermittent leave as a reasonable accommodation. The employee can never predict when the leave will be needed or exactly how much leave she will need on each occasion, but she always needs from one to three days of leave at a time. The employer initially agrees to her request and the employee takes 14 days of leave over the next two months. Documentation from the employee’s doctor shows that the employee will continue to need similar amounts of intermittent leave for at least the next six months. Event planning requires staff to meet strict deadlines and the employee’s sudden absences create significant problems. Given the employee’s prognosis of requiring unpredictable intermittent leave, the employer cannot plan work around these absences. The employer has already had to move coworkers around to cover the employee’s absences and delay certain work. The on-going, frequent, and unpredictable nature of the absences makes additional leave an undue hardship, and thus the employer is not required to provide it as a reasonable accommodation. If the employer cannot reassign the employee to a vacant position that can accommodate her need for intermittent leave, it is not required to retain her.”

“Although employers may have to grant extended medical leave as a reasonable accommodation, they have no obligation to provide leave of indefinite duration. Granting indefinite leave, like frequent and unpredictable requests for leave, can impose an undue hardship on an employer’s operations. Indefinite leave is different from leave requests that give an approximate date of return (e.g., a doctor’s note says that the employee is expected to return around the beginning of March) or give a time period for return (e.g., a doctor’s note says that the employee will return some time between March 1 and April 1). If the approximate date of return or the estimated time period turns out to be incorrect, the employer may seek medical documentation to determine whether it can continue providing leave without undue hardship or whether the request for leave has become one for leave of indefinite duration.”

Insomniacs can read the full guidance at http://www.eeoc.gov/facts/performance-conduct.html#conduct.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.