A new report published by the advocacy group A Better Balance highlights the practices of Walmart - the nation's largest private employer - toward employee requests for medical and disability related leave. The study suggests that Walmart routinely violates employee rights by, among other things, failing to inform them of potentially protected absences, giving employees "disciplinary points" for taking absences to care for themselves, their children, spouses or parents and refusing to consider physician notes.
An article discussing the report in the New York Times goes even further, highlighting multiple instances of employees who were disciplined and/or fired after violating the company "points" system - even where the absences were likely legally protected. According to the article, Walmart - which employs approximately one million people - assigns disciplinary points for unexcused absences and other infractions. Nine points in a six-month period can result in an employee's being fired, whereas new employees may be fired for accruing four points in their first six months.
These types of point systems are used in large companies throughout the US. In theory they work well - providing a progressive discipline approach for employees and allowing employees to know exactly where they stand. In practice, however, we have personally found that many companies leave too much to chance in their point system implementation, allowing supervisors leeway in determining what absences may result in assessment of points.
This becomes a problem, for example, when an employee is penalized for taking a leave that would otherwise be protected under the Family & Medical Leave Act ("FMLA"). Longer term, full time employees of larger companies are generally protected by the FMLA, which would allow them to take up to 12 weeks of leave to care for themselves or a loved one suffering from a serious health condition. Supervisors routinely penalize employees for having taken such leave, without notifying them of their FMLA rights, and by doing so they are potentially violating the law. The FMLA prohibits employers from penalizing employees for taking protected leave, and even assigning an employee a "point" for an absence that was protected can constitute a violation of the law.
The sort of practices alleged in the report, including failing to consider doctor's notes and giving disciplinary points for disability related absences, also potentially violate the New York State Human Rights Law as well as the Americans with Disabilities Act. Each of these laws prohibits discrimination or retaliation based upon disability, and each generally requires an employer to engage in an "interactive process" with employees to determine whether a reasonable accommodation may be necessary if the employee suffers from a disability.
These stories bring to light the serious issues that employees of large companies face. Employees often feel alone and without recourse against massive corporations, and only through strong reporting and aggressive legal action can employees hope to level the playing field.
If you have questions about medical leave or discrimination/retaliation at work contact us today.
