Is the EEOC Trying To Require Unforeseeable Intermittent Leave As a Reasonable Accommodation Under the ADA (Again)?

By Joseph S. Murray, IV

The EEOC filed two lawsuits in the past couple of months that show one of two things: (1) massive companies are cruel and heartless, with HR Departments that don’t understand the ADA, or (2) the EEOC, despite its own statements in guidances and regulations, continues to believe that the ADA allows employees to take repeated, unforeseeable intermittent leave.[1]

In August, the EEOC filed a lawsuit against Macy’s, Inc., alleging Macy’s fired an employee with asthma for a one-day absence due to complications arising from her disability. EEOC Sues Macy’s For Disability Discrimination (Aug. 16, 2017). In late September, the EEOC filed a lawsuit against Whole Foods Market Group, Inc. alleging that Whole Foods terminated an employee with polycystic kidney disease after she missed work two times in December 2015, due to hospitalizations related to her kidney disease. Whole Foods Market Sued by EEOC for Disability Discrimination (Sep. 28, 2017). In both cases, the EEOC alleges that the companies violated the ADA by failing to modify their leave and absentee policies as reasonable accommodations to allow the employees to take leave related to their disabilities.

If the EEOC’s allegations are true, then both Macy’s and Whole Foods are bad employers and potentially face significant damages. The ADA requires employers to modify policies and schedules in these circumstances when such modifications are reasonable accommodations. See 42 U.S.C. §12111(9). Further, unpaid leave is a reasonable accommodation, especially if the unpaid absence is a single day. See 29 C.F.R. Pt. 1630 App. § 1630.2(o). The 4th Circuit Court of Appeals has also readily agreed that short term absences may be a reasonable accommodation under the ADA. Cf. Wilson v. Dollar Gen. Corp., 717 F.3d 337, 345 (4th Cir. 2013) (The “two-day leave request was not unreasonable on its face, in accordance with our [prior] holdings.”).

The EEOC has had significant success in litigating cases against employers who fail to make reasonable accommodations to leave policies that disproportionately affect individuals with disabilities. For instance, the EEOC sued Verizon Communications alleging that Verizon failed to make exceptions to its no fault attendance policy as a reasonable accommodation. In 2011, Verizon paid $20 million to resolve the suit and made changes to its leave policies. Verizon to Pay $20 Million to Settle Nationwide EEOC Disability Suit (July 6, 2011).

But what if the EEOC’s allegations are wrong? I’m going to assume that companies as large as Macy’s and Whole Foods, with large HR departments, did not decide to terminate employees for a single missed day. My experience is that these types of terminations are a culmination of absences, tardiness, and miscommunications. They did not terminate their employees because of a single day, but because of all of the days leading up to that last day. And if this is true, then the EEOC’s cases will face significant difficulty before the courts.

In fact, the EEOC has lost these very types of cases before: In EEOC v. Yellow Freight Sys. Inc., 253 F.3d 943 (7th Cir. 2001), the EEOC alleged that Yellow Freight violated the ADA when it failed to provide a reasonable accommodation for an employee who missed significant amounts of work due to a disability. Prior to the employee’s termination, Yellow Freight engaged in the interactive process with the employee and, at the same time, processed the employee through Yellow Freight’s progressive discipline process. Ultimately, Yellow Freight refused the employee’s accommodation request of “sick days, if needed[,] without being penalized”; the employee refused a 90-day leave of absence; and Yellow Freight terminated the employee due to excessive absences.

In upholding summary judgment for Yellow Freight, the 7th Circuit determined that the employee was not a qualified individual with a disability since he could not fulfill the essential job function of regular attendance. The court noted that every circuit that had addressed this issue held that “in most instances the ADA does not protect persons who have erratic, unexplained absences, even when those absences are a result of a disability.” Further, the court quoted the 4th Circuit’s decision in Tyndall v. Nat’l Educ. Ctrs., 31 F.3d 209 (4th Cir. 1994), extensively for support of its determination: “Except in the unusual case where an employee can effectively perform all work-related duties at home, an employee ‘who does not come to work cannot perform any of his job functions, essential or otherwise.’” Tyndall, 31 F.3d at 213; see also Halpern v. Wake Forest Univ. Health Scis., 669 F.3d 454, 465 (4th Cir. 2012) (stating that the Tyndall court found “the dismissal of an employee for attendance problems did not constitute discrimination, even if her disability caused her absences”). Since regular attendance was an essential function of the Yellow Freight position and the employee could not maintain regular attendance, the 7th Circuit upheld the award of summary judgment to Yellow Freight.

I expect that Macy’s and Whole Foods will rely on these case in defending the lawsuits.[2] The EEOC alleges that the Macy’s employee worked in a store and the Whole Foods employee was a cashier—it is highly likely that regular attendance is an essential job function for these positions. Even if the EEOC can show that the employees’ absences are not significant or erratic and therefore the employees are qualified individuals with disabilities, Macy’s and Whole Foods may still argue the employee’s absences are an undue hardship. The EEOC’s own guidance[3] notes that individuals who are chronically or frequently absent can create undue hardships due to an employer’s inability to ensure a sufficient number of employees; inability to serve customers/clients adequately; need to shift other employees’ duties; and costs in overtime or temporary labor.

Making predictions or assumptions from two cases is a fool’s errand, but unless Macy’s and Whole Foods really are this heartless and incompetent at HR matters, it appears the EEOC continues to push for unforeseeable intermittent leave as a reasonable accommodation.[4]

[1] Yes, there is the muddled middle ground in between that will be hashed out in court, but nuance is no fun.

[2] The case against Macy’s is in the U.S. District Court for the Northern District of Illinois (7th Circuit) and the case against Whole Foods is in the U.S. District Court for the Eastern District of North Carolina (4th Circuit).

[3] The Americans With Disabilities Act: Applying Performance and Conduct Standards to Employees with Disabilities.

[4] Alternatively, the EEOC may be continuing the push that regular attendance or actually being present at work is not an essential job function of any job. Cf. EEOC v. Ford Motor Co., 782 F.3d 753 (6th Cir. Apr. 10, 2015).