“Don’t come back until you’re 100%” . . . “Get your doctor to lift these restrictions, then we’ll talk” . . . “The maximum amount of leave you can take is six months – that’s just our policy.”
These are just some of the many tactics employers use to avoid dealing with disabled employees in need of accommodations or medical leave. Discriminatory medical leave policies are becoming a huge issue facing today’s disabled workforce, especially in California. Most recently, V. James DeSimone, a prominent employee rights attorney, published a great article on this same topic, explaining why inflexible “100% Healed” policies are both illegal and a growing problem. Indeed, almost all employment attorneys regularly deal with employers who use their own policy as a means to push sick and disabled workers out the door, which is why this is a topic worthy of discussion in this week’s blog.
Background: What Employers Must Do When an Employee Becomes Disabled
Under both California and Federal law, employers have several affirmative obligations stating they must engage and accommodate sick, injured or disabled employees. First, the employer must engage in what’s known as a “good faith interactive process” in order to determine if any reasonable accommodations can be made to allow the disabled employee to continue working. The term “good faith” is deliberately included to prevent employers from merely creating the appearance of considering accommodations rather than actually investigating the possibility (which tends to happen quite a bit).
Second, as long as the employer won’t suffer any significant financial difficulty, it must accommodate the disabled employee in whatever ways it reasonably can. The most common reasonable accommodations include: restructuring the employee’s job duties or workstation, transferring the employee to a part-time, light-duty or vacant position, allowing the employee to work from home, allowing the employee to take a medical leave or simply allowing the employee to take additional medical leave. The basic point is that, if the accommodation isn’t a problem for the employer, they cannot refuse simply because they don’t feel like it.
These laws exist because the time spent on a medical leave should be focused on healing and a return to normalcy, not fearing the loss of your job, which is why courts will impose extremely harsh penalties on employers who violate these laws in bad faith. Such penalties include an award of backpay, front-pay, emotional distress and (the dreaded) punitive damages to the disabled employee who has been wrongfully terminated, all of which can total anywhere from thousands to millions of dollars depending on the situation at hand. For example, see this year’s $21.7M (single plaintiff) disability discrimination verdict against Valley Vista Services, Inc.
Slippery Soap: How Employers Try to Get Around These Medical Leave Laws
Yet with all that on the line, some employers still try to tempt fate by “getting smart” with their company policy in an effort to (1) avoid their obligations and/or (2) push sick and disabled employees out the door. One of the most common tactics used to accomplish this is the “100% healed policy,” meaning the employer will simply not allow the disabled employee to return to work unless they are completely healed or cleared of all work restrictions by their doctor, thereby eliminating the employer’s obligation to consider any accommodations at all.
Super smart move, right? Well, not so much when you consider the fact that both California and Federal courts, in addition to the California Commission on Health and Safety and Worker Compensation, consider this to be an illegal practice against public policy and/or a per se violation of the Americans with Disabilities Act. Employers are therefore held liable when they try to enforce a blanket refusal of all accommodations or alternatively order the employee to get his or her doctor to “lift all work restrictions” as a condition of returning back to work.
Alternatively, employers will sometimes have “maximum leave policies” aimed at getting rid of disabled employees who are already on medical leave but may need more time to heal. With this, employers will sometimes cite to an established “company policy” designating that they must terminate employees if they cannot return to full duty by a specific, fixed period (usually anywhere from four to six months). This type of policy usually stems from an employer’s incorrect assumption that, as long as they give the employee the legally-mandated 12 weeks of protected leave (required under the Family Medical Leave Act and California Family Rights Act), they’re “in the clear” to terminate that employee as soon as those 12-weeks expire.
Unfortunately (for employers), simply waiting 12 weeks does not absolve them of their affirmative obligation to engage in the interactive process and provide reasonable accommodations. In fact, the DFEH regulations were recently changed to explicitly state that an employer’s obligation to engage is affirmatively triggered when a worker’s medical leave is about to expire. In essence, employers still have the duty to investigate what reasonable accommodations, including additional leave, might help the employee to return and/or perform the essential functions of their job. When employers simply terminate those employees for “exceeding the maximum leave,” they are essentially sidestepping those obligations in violation of the law.
“No Fault Attendance Policies”
In addition, maximum leave policies often operate as a “no fault attendance policy,” which is defined as a policy that permits employees a specified number of absences for a given period of time and subjects them to disciplinary action when they exceed that number, regardless of the reason for the absence. As you might imagine, no fault attendance policies tend to interfere with the rights of employees who take protected FMLA or CFRA leaves of absence. As mentioned above, qualified employees are entitled to 12 weeks of (unpaid) medical leave that protects their job while they’re gone. When employers put up roadblocks or otherwise discourage employees from taking a protected leave, they can be held liable. Maximum leave policies, by their very nature, count protected leave against the employee, which is exactly what the law prohibits.
Picture it like this: maximum leave policies state that, once your “leave bucket” is full (no matter what the reason), that’s it, you will be disciplined and/or lose your job. Employers then allow disabled employees to go on a protected leave (under FMLA or CFRA) but then proceed to “fill the bucket” with protected leave time, thereby operating to discourage and/or punish the employee by marching them that much closer to an automatic termination, despite the fact that the whole point of protected leave is that the employee is not supposed to suffer any adverse consequences. In response to this shady practice, the DFEH has specifically modified its regulations to say this is illegal. In addition, courts have routinely held that employers cannot use this tactic to get rid of disabled employees and that they must make exceptions to their no fault attendance policies for those workers on protected leave.
Even then, these laws still aren’t enough to stop some employers from trying, as evidenced by the general increase in the number of disability discrimination lawsuits in California and in other states in recent years. Even the EEOC has stated that one of the hottest areas of the agency’s litigation involves their efforts to root out inflexible leave policies, “particularly those that eliminate an employer’s legal obligation to explore and make reasonable accommodations for employees returning from medical leaves of absence.”
Hopefully, as inflexible leave policies become more and more of an issue, employers will become more receptive to properly engaging and providing accommodations to disabled workers, regardless of what any (outdated) company policy might say. At the very least, as more and more lawsuits are filed, employees themselves may learn to spot these illegal policies and better-recognize when their rights have been violated.
Image: Don Adams; Get Smart – NBC