By Erin Dougherty Foley and Kimberly Shen, Summer Fellow
Seyfarth Synopsis: On July 14, 2022, the U.S. Court of Appeals for the Seventh Circuit affirmed summary judgment in an Americans With Disabilities Act discrimination and retaliation case filed by an employee with multiple sclerosis. In rejecting the plaintiff’s claims, the Court’s decision points to the importance of employers having legally compliant paid-time off policies
Many employers have had that experience of trying to manage that one employee who is constantly calling in “sick” and taking what feels like excessive time off. While some employees take time off for legitimate reasons, recurring unscheduled absenteeism can pose long-term problems for a company, especially if the employee is taking excessive paid time off.
When tackling this issue, employers should be wary when “that” employee is missing work for a reason that also qualifies as a legally protected absence. A recent decision from the U.S. Court of Appeals for the Seventh Circuit points to the importance of creating a legally compliant time-off policy regarding employee absences.
In Parker v. Brooks Life Science, Inc., Suzanne Parker, a woman with multiple sclerosis, started working for her employer as a part-time receptionist in 2017.
Throughout her employment, Parker had multiple supervisors and received mixed feedback on her work performance. In particular, Parker needed coaching regarding her misuse use of paid time off (PTO). The company’s PTO policy stipulated that employees must receive prior approval from their supervisors for planned time off and must enter the PTO hours they used in the company’s payroll software. Employees did not have to use their accumulated PTO if they arranged to switch shifts, but employees who wanted to plan schedule changes needed to receive their supervisor’s approval in advance. Meanwhile, for unplanned absences, Parker’s supervisor required her direct reports to request and enter PTO if a change to the schedule amounted to a change of thirty minutes or more.
Parker’s supervisor learned that during her absence, Parker had taken unapproved time off and made schedule changes multiple times. Her supervisor later approved Parker’s requests for time off, but reprimanded Parker for repeatedly violating the company’s PTO policy. In response, Parker acknowledged that she needed to do a better job at following the company’s policy. Her supervisor understood Parker’s statements to be admissions and contacted HR, recommending termination. After receiving approval from HR, the supervisor informed Parker that her employment with the company was being terminated.
After her termination, Parker filed a charge with the Equal Employment Opportunity Commission (“EEOC”), claiming that she had been discriminated against on the basis of her disability. Parker then sued her employer, alleging she had experienced employment discrimination and that her termination was an act of retaliation due to her request for a reasonable accommodation, in violation of the American with Disabilities Act (“ADA”), 42 U.S. C. § 12101. [Fun fact, the ADA was enacted into law 32 years ago this week!]
The Court’s Decision
A district court granted summary judgment in Brooks Life Science, Inc.’s favor, and Parker appealed the decision. After hearing her case, the U.S. Court of Appeals for the Seventh Circuit affirmed the lower court’s decision. The Seventh Circuit held that Parker failed to produce evidence that allowed a reasonable juror to infer a link between her request for time off for pain treatment and her termination. Even though Parker tried to argue that the fact she was fired three days after she asked for an accommodation, the Seventh Circuit found that the timing of her termination alone was not enough to establish that she had been fired due to her disability because Parker’s supervisor only learned of Parker’s unauthorized schedule changes in the intervening period between when she granted Parker’s requested accommodation and when she ultimately terminated Parker. Moreover, the Seventh Circuit noted that Brooks Life Science, Inc. had produced extensive email documentation regarding Parker’s performance issues, including emails regarding Parker’s failure to follow company PTO policy on multiple occasions, Parker’s taking unauthorized time off, Parker’s unresponsiveness to coaching, and Parker’s substandard work quality. Most notably, in one email, Parker’s supervisor had written: “Not only have I discussed this with [Parker] multiple times, but included HR. She will not follow policy and is not meeting the expectations clearly laid out for her. . .I have tried to reinforce the expectations, and I spend more time managing [Parker] tha[n] I think is beneficial to the company.” As a result, the Seventh Circuit concluded that Parker’s refusal to adhere to Brooks Life Science, Inc.’s PTO policy and failure to follow her supervisor’s instructions and coaching led to her termination.
Best Practices for Employers
The Seventh Circuit’s decision in Parker v. Brooks Life Science, Inc. reflects the importance of employers maintaining a legally compliant PTO policy. While Brooks Life Science, Inc. had experienced a favorable legal outcome in part due to the company’s documentation regarding the plaintiff’s consistent failures to follow the company’s clearly defined PTO policy, employers everywhere should still ask themselves if their PTO policies cover all their legal bases.
Employers looking to design a legally compliant PTO policy should aim to include the following:
- Expected business hours and number of hours worked each week
- Requirements for the clock-in/clock-out procedure
- Expectations for paid and unpaid leave, including when and how employees qualify for leave and how much they accrue each week
- Processes for requesting leave, including deadlines for vacation requests and blackout periods
- Consequences if an employee fails to adhere to the policy
Whether employers are creating their first PTO policy or revising an existing policy, employers should always ensure their PTO policy lays out clearly defined expectations. Employers should also make sure that their PTO policy is shared among all employees, supervisors, and managers. After all, taking steps to ensure that everyone understands the rules of the PTO policy could ultimately work wonders in protecting companies from discrimination or retaliation lawsuits later down the road.
For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Counseling & Solutions Team or the Workplace Policies and Handbooks Team, or the Leaves of Absence Management and Accommodations Team.