Dillard’s to Pay $2 Million for Demanding Health Details

Posted December 28, 2012 in Labor and Employment by

Danny Johnston/ AP Photo, file

Has your employer ever asked you exactly what’s keeping you home sick? If so, it may be violating the Americans with Disabilities Act.

The EEOC announced on Dec. 18 that it has settled for $2 million a case against Dillard’s Department Stores that was based on a companywide policy that for employees’ absences to be excused, they had to disclose confidential health information – in violation of the ADA, according to the EEOC.

 

Expensive Outdated Policies

Dillard’s fired Corina Scott, a former cosmetics counter employee at a store in El Centro, Calif., after she complained that she and other Dillard’s employees were required – for the past 8 years – to disclose the exact nature of any medical condition they suffered in order to be approved for sick leave.

Additionally, said the EEOC, Dillard’s illegally fired employees under its maximum-leave policy. It violated the ADA’s accommodation requirement, as employees were limited in the amount of health-related leave they could take and the company didn’t interact with them to find out if they needed more time.

Dillard’s denies any wrongdoing in the settlement, and in a press release claims that it abandoned the excused absence program in 2007 and that neither of the two policies at issue are in effect any longer. 

However, in the settlement, the company did agree to change its policies. It also agreed to hire an ADA expert and implement other extensive changes including training, record-keeping and compliance coaching, according to the settlement.

 

Dillard’s: No Such Thing as “TMI”

The EEOC sued Dillard’s in federal court in California, alleging that the company’s “too much information” policy violated the ADA. An EEOC attorney told the Huffington Post that some employees revealed conditions including cancer or mental illness, as well as gynecological information in order to get an excused absence.

“While the class members had verifications from doctors to assure Dillard’s that the absences were due to medical reasons, many did not feel comfortable disclosing the specifics of their conditions to the company,” said the EEOC. 

Scott, who was absent from work for only four days, and others “were fired in retaliation for their refusal to provide details of their medical conditions, despite the fact that many of their own doctors advised them not to disclose specific medical information in accordance with the law,” explained the agency.

Those doctor’s notes stating that leave was necessary “for medical reasons” should have been enough. 

 

Employers Can Request Some Medical Info

“The EEOC argued that the policy was inconsistent with the requirement under the ADA that employers can only make inquiries into the disabilities of their employees when doing so is job-related and necessary for the conduct of business,” notes Michael Wilhelm, an employment lawyer with Briggs and Morgan in Minneapolis, on the Minnesota Employer.com blog.

What is considered “job-related” can be a fuzzy, Wilhelm tells Lawyers.com. “State laws vary, but some federal laws give employers the right to request medical information from employees for certain purposes.”

Under the ADA, explains Wilhelm, an employer can inquire into an employee’s medical condition if:

  • the employee requests an accommodation for a disability that is not readily apparent, and
  • the medical inquiry is job-related and consistent with business necessity. 

An employer can also “certify” an employee’s need for leave under the Family and Medical Leave Act if it’s for his or her own serious health condition, Wilhelm adds. 

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