For more than 15 years Texas employers have used the application of uniformly enforced neutral absence control policies setting a maximum duration an employee can be away from work as a defense to workers’ compensation retaliation claims. The defense was first solidified by the Supreme Court of Texas in in its 1996 Continental Coffee Prod. v. Casarez case. See 944 S.W.2d (Tex. 1996). Employers who end the employment relationship with a worker’s compensation claimant for violating reasonable absence control rule will not normally be liable for workers’ compensation retaliatory discharge claims if rule is uniformly enforced (i.e., it is applied to all types of absences and not just those arising from on-the-job injuries). Following Casarez Texas employers routinely included neutral policies setting forth neutral absence control policies that set maximum durations of time for employees to be away from work (excepting from the maximum duration certain types of statutory protected leaves like FMLA and USERRA leave).
The continuing viability of the neutral absence control policy is in jeopardy with the passage of the ADA Amendments Act. The ADA Amendments Act substantially expanded the number of employees who can claim disabled status and are therefore entitled to reasonable accommodation. Reasonable accommodation may include modification of employer policies that might enable the employee to be able to return to work –including, perhaps, an extension of a leave of absence past the maximum set forth in the employer’s written policies.
The EEOC has been targeting inflexible leave of absence policies as violating the ADA with greater frequency. Last September the EEOC sued UPS challenging the company’s policy of allowing a maximum 12 months of medical leave claiming that the policy does not adequately accommodate employees with disabilities. The EEOC also sued Supervalue, Inc./Jewel-Osco over their leave of absence policies that limited the amount of leave an employee could take and challenged another policy that limited participation in the employer’s light duty program to only those employees recovering from a work-related injury –something court’s had previously held was permissible. The EEOC also challenged another leave of absence policy it characterized as "inflexible" on behalf of a pregnant employee against D.R. Horton by using the ADA rather than the Pregnancy Discrimination Act. Indicating that the EEOC’s efforts are having some success, the EEOC recently obtained a consent degree against Sears and a $6.2 million settlement of ADA claims arising from Sear’s use of an inflexible workers’ compensation leave of absence policy that terminated the 235 employees upon the exhaustion of the leave of absence period. Clearly, inflexible neutral leave policies having setting forth maximum durations for leaves of absence are in the cross-hairs of the EEOC.
The ADA Amendments Act and challenges to neutral absence control and maximum duration of leave policies put Texas employers to a Hobson’s choice. The uniform, mechanical application of such policies provide an employer a defense to a Texas workers’ compensation retaliation claim. Now, however, the policy might give rise to a claim of failure to reasonably accommodate an employee with a disability who needs an extension of the maximum leave period to return to work. Employers should reevaluate their leave of absence policies to make sure they are sufficiently flexible as to provide reasonable accommodation to qualified individuals with disabilities. By making exceptions to neutral absence control or maximum duration of leave policies, the exceptions may dilute the protections those policies once provided against workers’ compensation retaliation claims.
Photo courtesy of Sharon Ellman, Ellman Photography.