Imagine having to choose between your job and taking care of your sick child. How would you feel if you were told you could go to the emergency room, but it would be treated as an unexcused absence and you could be fired? A recent lawsuit says these are the choices Walmart workers face every day: work or be punished for taking sick days. Were Walmart workers punished for taking sick days?

Photo credit: Mike Mozart — some rights reserved under Creative Commons Public License

In this blog post I will review the report “Pointing Out: How Walmart Unlawfully Punishes Workers for Medical Absences” and the lawsuit filed by A Better Balance. I will also discuss sick leave laws under the Americans with Disabilities Act (ADA) and the Family Medical Leave Act (FMLA).

The Report on Walmart and Medical Absences

In November 2016, the non-profit organization A Better Balance filed a complaint with the Equal Employment Opportunity Commission (EEOC) on behalf of Arleja Stevens, a Walmart employee. She said pregnancy complications had led to sick time and eventually caused her to lose her job at Walmart. The complaint said that company policies related to unexcused absences and medical time off work violated the ADA and the FMLA, as well as state laws. In June 2017, A Better Balance filed a lawsuit based similar allegations with a different plaintiff. A second EEOC complaint was filed a less than two months later.

The legal proceedings are based on a report published by A Better Balance in June. The report covered surveyed of over 1,000 Walmart workers (identified through social media). It compiled stories about Walmart’s “absence control program”. Among the results, A Better Balance reported that 78% of workers who were absent because of a medical emergency were punished for it. 85% of Walmart employees saw this discipline as a problem. A Better Balance alleges it was also against federal and state laws.

Walmart’s Absence Control Program Raises Concerns

Walmart uses a discipline system where employees receive points for violations of company policy. This can include anything from poor performance to disrespecting supervisors. It also applies to absences. Each unauthorized absence is one point. Arriving over 10 minutes late for a shift is half a point. If an employee fails to notify the company at least one hour before the missed shift, the no-call/no-show is four points.

Walmart workers can lose their jobs if they accumulate enough points. During the first six-month period, an employee can be terminated when he or she receives four points – one no-call/no-show. Even long-time employees can be terminated for receiving 9 points in a six-month period. Having any points on their records can keep employees from being assigned additional hours or receiving raises or promotions.

Official company policy says an employee can have an absence excused by notifying management three weeks in advance and receiving approval. However, most managers across the country refused to receive or review doctors’ notes from employees.

FMLA And Unexcused Medical Absences

The legal complaints center around the way the “absence control program” prevented sick and disabled workers from using the federal Family Medical Leave Act to protect their jobs. This law allows workers at companies with at least 50 employees, who have worked at least 1,250 hours in the last 12 months to receive up to 12 weeks of unpaid medical leave and come back to the same job. To qualify for FMLA, a worker must have a medical condition which:

• Requires overnight hospitalization
• Incapacitates the employee (or a family member) for more than 3 days in a row and require ongoing medical care
• Are chronic, cause occasional periods where the employee (or family member) is unable to work, and requires ongoing health care
• Includes pregnancy, child birth, or adoption of a new child

FMLA applies to the employee or anyone in his or her close family (spouses, parents, or children). To use it, workers must notify their employers in advance, or as soon as they are able after an emergency. The complaints say that Walmart’s policies prevented its workers from using the FMLA by labelling qualifying events as unexcused absences and assessing points.

ADA Scheduling Accommodations

A Better Balance also alleges that Walmart’s policy of not considering medical notes violated the Americans With Disabilities Act. This federal law prevents discrimination against workers with disabilities and requires employers to provide reasonable accommodations for documented medical needs. This can include adjusted schedules and time off work to attend treatments. Employees don’t need to know they are requesting accommodations. It is up to the employer to start an interactive process when it is notified the employee is having difficulty at work because of a medical condition. A Better Balance said that Walmart actively avoided this process by having managers ignore the medical reasoning behind employee absences.

State Laws Protect Pregnancy and Paid Sick Leave

The Walmart complaints also show how state laws can provide additional protections beyond federal law. 25 states explicitly require accommodations for pregnant employees such as time off for morning sickness and prenatal appointments. Several states also require companies to allow employees to develop paid time off. Walmart’s policies are alleged to have ignored these state laws as well.

Protecting Workers’ Rights Under Federal and State Law

Employees of large companies like Walmart can feel like they are fighting a giant when they assert their rights under the FMLA and the ADA. The skilled employment discrimination attorneys at Eisenberg & Baum, LLP, can help you identify problems in your company policy, negotiate on your behalf, and file complaints with the appropriate state and federal agencies, and in court when negotiations fail. Contact us today to schedule a free initial consultation and get your case started.