Employment & Labor Insider

The following is based only on the allegations in a lawsuit that was filed this week by the Equal Employment Opportunity Commission. The employer hasn’t had a chance to give its side of the story.

However, I’ve seen situations like this in the real world, so even though these are only allegations, they have some good lessons for employers.

"Welcome! We've been waiting for you!"

When you’re sued by the EEOC, it’s never good. In this case, the EEOC is alleging that the employer fired an employee for absenteeism, in violation of the Americans with Disabilities Act.

The employee (we'll call her "Ginny") was hired in the autumn, and the following spring (less than 12 months post-hire) she was diagnosed with breast cancer. 

Presumably because she wasn’t yet an “eligible employee” for purposes of the Family and Medical Leave Act, Ginny submitted an ADA reasonable accommodation request to the employer's third-party administrator. Her request, backed up by her doctor, was that she be allowed to take intermittent leave for cancer-related illness and medical treatment.

According to the EEOC, this employer’s leave and accommodation policies were perfect. So, Ginny's request for leave was granted, right?

Uh, well . . .

Mistake No. 1: TPA red tape

(Try saying that three times fast.)

The employer used a third-party administrator to handle leave and reasonable accommodation requests. Nothing wrong with that.

Ginny submitted her intermittent leave request to the TPA. Nothing wrong with that, either.

Although under the employer’s policies, Ginny was entitled to medical leave, the TPA stopped processing her leave request. According to the lawsuit, nobody knows why.

But I have a suspicion.

I suspect that an employee (or bot) at the TPA thought (or "thought") Ginny was not eligible for leave because she was not entitled to FMLA leave. She hadn't been employed for 12 months. In other words, I think the TPA may have confused FMLA leave with leave as a reasonable accommodation under the ADA.

And, in case you’re saying, “But that would have been the TPA’s mistake, not the employer’s!,” you would be both right and wrong. It might have been the mistake of the TPA, but the TPA is an agent of the employer, and so the employer could still be legally responsible.

Plus, there is more to this alleged story. Stay with me.

Employers beware. Many employers use TPAs to administer requests for medical leave (FMLA and non-FMLA), which is fine. But don’t just take the TPA’s word for it if things don’t seem right to you. Where warranted, you can and should second-guess, and even direct the TPA to reconsider its decision. I’ve had more than one client who’s had to do this in real life.

"Are we having fun yet?"

Mistake No. 2: ADA/FMLA mix-up

Presumably because the TPA quit processing Ginny's ADA request, Ginny was charged attendance points for her cancer-related absences. But when Ginny’s supervisor met with her about her attendance, Ginny disclosed that she had breast cancer and that almost all of her absences were for cancer-related reasons.

According to the lawsuit, the supervisor said that she would have been able to cover Ginny’s absences by adjusting co-workers' work schedules.

But Ginny was still charged for all of her absences, which put her over the line for termination of employment.

I'm speculating again, but I suspect that the supervisor, like the third-party administrator, confused the FMLA with the ADA. In my experience, many employers and individual members of management think that if an employee is not eligible for FMLA leave, they’re done.

But the ADA and the FMLA are two different laws. Unlike the FMLA, the ADA has no “length-of-service” or “minimum hours” requirement. If an employee needs a reasonable accommodation for a disability on Day One (or even before Day One -- applicants have to be accommodated, too), the employer has to consider the request in good faith and either grant it or at least be open to other accommodations that might be more workable. If the employer says it cannot accommodate at all, there had better be a darned good reason. (And sometimes there is.)

Employers beware. Supervisors and managers should be aware that employees who are not eligible for FMLA leave may still be entitled to reasonable accommodations under the ADA. And those ADA accommodations can include intermittent or "block" leave.

Mistake No. 3: Who checked with HR? Anybody?

Again, I’m both speculating and assuming that the allegations in the lawsuit are true. With that disclaimer, here’s my thinking:

You’re a supervisor, and you have an employee who is about to be fired for poor attendance. She tells you that most of the absences have been related to her breast cancer. She is not eligible for FMLA leave. What do you do?

"Decisions, decisions . . ."

Devil: "The TPA denied her request for intermittent leave, so you can still fire her!"

Angel: "But it's breast cancer!"

My hope is that the supervisor would contact Human Resources. The HR folks should know what to do and be willing to do it. And if they don't know what to do, they are usually authorized to contact the company's employment lawyers for advice.

The EEOC's lawsuit does not allege that an HR representative dropped the ball. Instead, it alleges that Ginny told her supervisor that her absences were due to cancer and that she got fired for attendance anyway. Assuming these allegations are correct, that leads me to believe that this supervisor might not have contacted HR before pulling the plug on Ginny's employment.

A pre-termination call to HR might not resolve everything, but HR is often able to straighten things out before they become irremediable. At the very least, I would expect HR to conduct a pre-termination audit of the employee’s attendance record and remove any points assessed for what should have been “protected” absences. In this case, according to the EEOC, that would have reduced Ginny's point total from "past the point of termination" to "give that woman an attendance bonus!" 

Employers beware. Require your frontline supervisors and managers to contact HR before following through on any termination. You won't regret it.

Mistake No. 4: Not settling before the EEOC filed suit?  ;-)