On June 24, the U.S. Supreme Court handed down two important decisions making it harder for employees to bring discrimination suits about workplace harassment and retaliation. The first decision limits the definition of "supervisor" on the job, making it harder for employees harassed by those with limited authority over them to sue their employers. In the second case, the Court's opinion raises the level of proof required to establish that employers have "retaliated" against employees by firing or demoting them after they complain about discrimination.

Employers usually strive to treat all employees alike. This is normally good policy and practice. In some instances, though, the law requires otherwise. Most notably, the federal Americans with Disability Act ("ADA") and similar state laws require employers to treat an employee with a disability differently than other employees when different treatment - an accommodation of the employee's disability - would enable the employee to perform the essential functions of the position.

Employers' efforts to have policies and practices that treat employees alike while simultaneously complying with the requirements of the ADA sometimes creates challenges for employers. One area where this issue has garnered a lot of attention from the Equal Employment Opportunity Commission ("EEOC") has been with regard to employers' leave and attendance policies and practices. The EEOC recently has been cracking down on employers that automatically terminate employees who do not return to work at the end of their 12 weeks of Family and Medical Leave Act ("FMLA") leave. Instead of automatically terminating such employees, employers are required to perform an individualized inquiry on a case-by-case basis to determine whether additional leave, if requested, may be a reasonable accommodation under the ADA. A similar issue arises in the case of attendance policies that provide that all absences/tardies (regardless of reason) are treated the same, and that employees who reach a pre-designated number of absences/tardies are terminated or disciplined. While such policies seem like logical approaches because they eliminate the need for employers to evaluate the reason provided by an employee every time he or she is absent or tardy, they are problematic because they penalize employees that may have been protected by the ADA and/or FMLA.

The EEOC's enforcement efforts have resulted in multi-million dollar settlements and a host of new compliance requirements and conditions for certain employers. It is important for employers to review their leave and attendance policies and practices (including their FMLA, disability, and workers' compensation policies) with labor and employment counsel to ensure that the policies and practices are appropriately flexible when it comes to terminating or disciplining employees who are out on extended medical leaves or exceed permissible absence/tardy levels. As part of such a review, employers should consider implementing the following:

1. Eliminate any "automatic termination" language from leave and attendance policies. Employers should cease any policy or practice of automatically terminating or disciplining employees who exhaust a set amount of leave or accrue a certain number of absences or tardies. One alternative is to create a carve-out for leave/absences/tardiness necessitated by an employee's disability (which may need to be accommodated by the ADA or similar state law) or serious health condition (which may make the employee eligible for leave under the FMLA or similar state law).
2. Engage in the "interactive process" with employees to determine whether there is a "reasonable accommodation" that does not impose an "undue hardship." While the EEOC has committed to publishing guidance for employers on leave as a reasonable accommodation, it has not yet given any indication as to when such guidance will be issued. In the meantime (and probably even after the issuance of the guidance), there will be no bright line in determining how much leave to provide an employee as a reasonable accommodation. Instead, employers must conduct a "case-by-case" analysis of the specifics of each employee's circumstances and must invite the employee into that process as part of an "interactive" discussion. Employers should ensure that only well-trained staff serve as the company's representative in the interactive process. And, in instances in which the company does not provide additional leave as an accommodation because it determines that such leave would cause an "undue hardship" on the company, the reasons for that conclusion, including how the additional leave would impact the business and operations, should be well-reasoned and well-documented.
3. Consider giving one extension of leave to employees who request additional leave as an accommodation. Employers likely are not required to provide employees with an indefinite or open-ended leave of absence. Generally the employee must provide the employer with a reasonable estimate of when he or she will be able to return to duty, performing all essential functions, in order for a leave of absence to be a reasonable accommodation under the ADA. Nevertheless, whether the employee is seeking an indefinite amount of leave or a specific amount of leave, it may be a good practice to provide at least one extension of leave because establishing that a one-time extension would create an undue burden may be difficult.
4. Consider that an employee does not necessarily need to be able to return from work "without restriction." Employers' policies that require an employee to return to work from leave "100% healed," at "full duty," at "full capacity," or "without restrictions" likely violate the ADA because employers may need to provide a reasonable accommodation to returning employees. If the returning employee can perform the "essential functions" of his or her position either with or without a reasonable accommodation, the employee should be permitted to return.
5. Employers should make sure that they have accurate and detailed job descriptions for each position and that such descriptions are regularly reviewed and updated as appropriate. Courts will look to such job descriptions in analyzing the "essential functions" of the job and whether the employee can perform such functions with or without a reasonable accommodation.