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EEOC keeps eye on employers long after settlements

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NEW ORLEANS — Employers should be aware that the U.S. Equal Employment Opportunity Commission has and will likely continue to utilize consent decrees to force them to properly accommodate disabled employees.

In May, the commission reached an $8.6 million settlement with Mooresville, North Carolina-based Lowe's Cos. to resolve claims the retailer violated the Americans with Disabilities Act by terminating employees whose medical leaves of absence exceeded the company's 180- or 240-day maximum leave policy.

But a less-discussed aspect was the four-year consent decree that requires Lowe's to retain a consultant with ADA experience to review and revise company policies as appropriate, implement effective ADA training for both supervisors and staff, and develop a centralized tracking system for employee requests for accommodation, among other requirements.

“This is a very onerous requirement, and it is something that also allows the EEOC to keep poking into the window of that organization,” Matt Morris, Chicago-based vice president of FMLASource, a ComPsych Corp program that specializes in reviewing, approving, processing and tracking leave requests, told attendees of the Disability Management Employer Coalition conference in New Orleans on Wednesday.

“We're not just settling it for money to make things go away,” said Richard Mrizek, a trial attorney with the commission's Chicago district office. “We're also looking at what can we do that we think will solve the company's problems such as compliance going forward.”

In July 2014, a federal magistrate judge recommended in EEOC v. Supervalu (Jewel) that the Eden Prairie, Minnesota-based Supervalu Inc. supermarket chain be held in contempt of court and sanctioned for violating a court decree entered to resolve an ADA lawsuit. The court concluded that the company did not accommodate individuals as required by the consent decree, including looking for open jobs for these individuals or providing assistive devices, which led to Supervalu paying an additional $482,000 related to the decree violations.

“This is sort of an aberration, because most of the time … the consent decree process in my experience has been a positive one,” Mr. Mrizek said. “It's a messy situation to start out with, but as the process goes forward, both the EEOC and the company reach the same page. It didn't happen so quickly in Jewel, but I think at the end, Jewel has made some positive changes, and we're hopeful the lesson was learned.”

The commission's actions in these cases highlight the importance of employers following the agency's May 2016 statement on ADA leave, which stated that granting leave is a reasonable accommodation and that employers must provide equal access to leave under their leave policies.

Mr. Mrizek highlighted one case he was involved in, in which the unnamed company granted employees a year to attend graduate school but would not consider similar leaves for employees with cancer or other conditions.

“That's sort of a straight-up discrimination problem,” he said. “When you review your policies, when you construct your policies, you want to make sure you're not treating disabled people with more restrictive requirements than nondisabled people.”

Federal courts have contradicted the EEOC in some cases by finding that employers' time-specified leave policies were reasonable, but these will be fact-specific determinations. For example, if an employer has a six-month leave policy and rejects a request by the employee for one more week of accommodation, that could raise a red flag with the EEOC, Mr. Mrizek said.

“The important thing is not to be so rigid and inflexible when dealing with requests for additional leave,” he said.