You have attendance policies, right? I hope so. Most employers seem to have them–and you should. Your employees need to know what is expected of them. You are somewhat ham-stringed if you try to discipline an employee due to attendance issues when you don’t have a clear policy. Your first thought might be to make sure that you apply the same policy across the board no matter the circumstances. I mean, treating everyone exactly the same guarantees you’re not discriminating, right? Um, not always. When it comes to attendance issues, inflexible policies or applying policies in an inflexible way can get you in trouble–and it may actually lead to a finding of discrimination.
Take Meditronic, a Minneapolis-based company that manufactures medical equipment. It’s facing an EEOC lawsuit on this very issue. Here’s what allegedly went down:
April Jackson was a temporary employee placed by a temporary staffing agency as a forklift operator at Meditronic’s Greenwood, S.C. facility on October 3, 2016. Ms. Jackson was born with one kidney and an under-formed bladder. She missed work due to her condition. On February 10, 2017 she returned to work from a disability-related absence with a doctor’s note. The very same day, despite having been in the process of directly hiring her prior to her absence, Meditronic terminated her assignment, and refused to directly hire her, asserting she was in violation of its attendance policy.
Was Meditronic wrong for having an attendance policy? Of course not. So what was the problem? Ms. Jackson apparently was otherwise qualified for the job and had a disability. Under these facts, and under the ADA, Meditronic was obligated to provide her a reasonable accommodation. Its rigid application of its attendance policy, without consideration of her condition, effectively denied her a reasonable accommodation. Meditronic also violated its obligation to engage in the interactive process to attempt to provide a reasonable accommodation. Finally, its refusal to directly hire her was essentially a refusal to hire because of her disability.
Now, you may be thinking, “She was a temporary employee. The staffing company is the employer, not Meditronic, right? So Meditronic can’t be liable”. Wrong. Meditronic in this scenario was a joint employer. A company that hires temporary employees through a staffing agency, and that supervises, directs and controls the temporary employee’s work and work conditions is a joint employer along with the staffing agency. Both the staffing company and the Meditronic had an obligation to provide a reasonable accommodation. OK, so why does it appear that the EEOC only went after Meditronic? First, the EEOC or an employee can sue one or all joint employers. It doesn’t have to sue all the joint employers. Second, the facts here suggest that it was primarily, if not solely Meditronic that failed to engage in the interactive process or provide a reasonable accommodation. Meditronic certainly appears to be the primary wrongdoer here.
With that said, let’s flip the scenario around. If the staffing company were told by Meditronic not to provide a disabled candidate or to terminate a disabled candidate’s assignment, the staffing company might also be on the hook for complying with a discriminatory request. The point is: If you can’t take a certain action in a direct hire situation, then you most likely can’t take it with respect to a contingent worker. Discrimination is discrimination. Adding an extra layer by involving a staffing company does not take the same actions and render them legal.
The EEOC only filed suit in July, so it’s early, but hopefully we will hear about a settlement soon. I don’t see a trial turning out well for Meditronic, unless there are other mitigating facts.
So, how about a few do’s and don’ts?
DO: Have clear attendance policies;
DON’T: Apply them in a rigid, inflexible manner;
DO: Leave room for re-visiting attendance policies when an employee is asking for medical leave;
DON’T: Summarily deny any request for an accommodation of a disability, including a request for medical leave;
DO: Engage in the interactive process with an employee who requests an accommodation, and attempt to either provide the accommodation requested or come up with an alternative; DO: Document everything, from the moment you receive an accommodation request;
DON’T: assume that just because someone is a temporary employee provided by an outside staffing agency that employment laws do not apply to you or protect that employee. They probably do.
DO: contact the staffing agency of any such temporary employee if s/he makes a request to accommodate a disability.
That should be enough to get you started…
Watch my first of two television interviews on Stop My Crisis with Vivian Gaspar.
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