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April 2, 2012

Consistency and the ADA

Filed under: General HR Buzz7:00 am

Anyone who has HR as part of their responsibilities probably has the word “consistency” tattooed to their brain.  It is typically “rule No. 1” for HR professionals.  In fact, Olivia recently wrote a blog regarding the importance of being consistent in terms of company policies and practices.  Typically the steps in finding solutions involve the following steps:

1)      Has this situation occurred in the past?  Answer is “yes”.

2)      How was it handled?

3)      Solution to existing issue is answer in question (2).  Since a precedent has been established, we must be “consistent” and treat this situation the same as we have in the past.

Generally this is good advice and will provide a solid reasoning for most decisions.  However, in the case of the Americans with Discrimination Act (ADA), consistency may not always be the best answer.

The Equal Employment Opportunity Commission (EEOC) has recently been focused on companywide policies in place by employers that do not permit the kind of flexibility needed to comply with the ADA.  An example is a recent $20 million settlement with Verizon Communications related to a no-fault attendance policy.  The question at stake involved employees who had job-protected absences (under the ADA) but were counted against them because of the company’s no-fault attendance policy.

“Flexibility on leave can enable a worker with a disability to remain employed and productive — a win for the worker, the employer and the economy,” said EEOC Chair Jacqueline A. Berrien.  “By contrast, an inflexible leave policy may deny workers with disabilities a reasonable accommodation to which they’re entitled by law – with devastating effects.”

As a result, if you have a no-fault attendance policy you may want to consider adding some language to your policy clarifying that nonchargeable, job-protected absences will not be counted against the employee under this policy.  Additionally, employees should inform the employer if they believe an absence is for a job-protected reason.  By including this language, you may be protecting your company from having a claim filed against you.

If you are interested in reading more about this case, click here.  And if you’d like to read Olivia’s blog regarding consistency, you can access it at this website:  http://www.hrnblog.com/2012/02/02/consistency-a-resolution-you-need-to-keep/.

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