Have you heard the story about Zachary Christie, the six year old boy who brought a fancy camping utensil to school and was then suspended for bringing on the premises? According to a recent report the Cub Scout utensil functioned as a spoon, a fork, and a knife; and little Zachary wanted to use it to eat his lunch. The school district, however, viewed the gadget as a weapon. Since it has a zero-tolerance policy on the possession of weapons on school grounds, Zachary is facing 45 days in the grade school equivalent of the slammer: reform school. His mother and fianc? are working on his appeal.
I raise the Zachary Christie story because the workplace can have similarly inflexible policies.
Take for example employee leave policies that apply when an injured employee takes workers’ compensation leave. Typically companies set a time period within which an employee is expected to return, if the employee fails to return to work within that time period they can be terminated.
Just as Zachary Christie’s school district is facing harsh criticism for its overly strict policy, today such one size fits all workers’ compensation leave policies can land a company in hot water thanks to a recent case involving retailer Sears, Roebuck and Co.
Sears fired a service technician after his workers’ compensation leave had expired. The technician filed a discrimination claim with the Equal Employment Opportunity Commission. Upon further investigation the EEOC discovered that hundreds of Sears employees who had taken workers’ comp leaves were also terminated. Their point of contention was that these terminations occurred without consideration of whether a brief extension of time would allow them to return to work or whether a reasonable accommodation by the company (other than more time) would allow them to return.
The failure to look at the situation on a case by case basis to determine whether a reasonable accommodation or extension of time could be made was viewed by the EEOC as a violation of the Americans with Disabilities Act. Sears settled the class action suit for a record breaking $6.2 million. The press release from the EEOC touts the settlement as the “largest monetary amount ever in a single EEOC ADA suit.”
This new development adds an extra layer of complexity to the enforcement of company employment policies. Saying that you’re applying policies consistently will no longer be enough. Employers will need to go a step further and consistently conduct well documented individual reviews as well as establish a set of criteria that can be consistently applied in those documented reviews. It’s something you may want to discuss with your employment counsel.