UPS just settled an 8-year disability discrimination lawsuit for $1.7 million. The employees in question had all had leaves of absence of more than one year and failed to return to work. So UPS
fired them. What’s wrong with that? They hadn’t come to work in more than a year–and an employer still has to hold their job? I’ve already written about one-year leaves of absences generally not being reasonable accommodations (Click here for that post). So how can UPS have gotten into so much trouble here? As you might guess, there’s more to it than that. Read on to learn more…
(image from jandjpartyjanitorial.com)
How can an employer that allows an employee more than one year of medical leave be in violation of the ADA? The answer: when the employer states that any worker who does not return to work after twelve months is automatically terminated. The lead plaintiff suffered from multiple sclerosis. She did return to work after a 12-month leave and then experienced side-effects from her medication. She needed two weeks’ time off to adjust. UPS fired her because she had already been out for 12 months. The EEOC often refers to this type of policy as an inflexible leave policy. Whatever the amount of time given in a leave policy, if it does not consider specific circumstances, then in at least some situations, it will probably result in the employer denying a disabled employee a reasonable accommodation.
What would have been reasonable about this employee’s request? She’d already been out on leave for a year. For many employers, a 12-month leave is not a reasonable accommodation. Wouldn’t this employee’s request have posed an undue hardship? In this case, perhaps not. The fact that UPS allowed for leaves of up to 12 months suggests that such leaves were not automatically an undue hardship. Now, the purpose of any reasonable accommodation is to enable a qualified individual with a disability to perform their essential job functions. The purpose of leave under the ADA is to enable someone to recover from an impairment/illness/injury so that they can return to work and perform their essential job functions — with or without other reasonable accommodations.
Furthermore, an employer who receives a request for an accommodation by a qualified individual with a disability must, under the ADA, engage in the interactive process. In other words, they have to consider the request and have a dialogue with the employee to determine if the request might be a reasonable accommodation, whether there might be equally or more effective accommodations, and then proceed from there. UPS did not even do that. An employer that rejects an accommodation request out of hand as UPS apparently did here, also raises a big red flag as far as the EEOC is concerned.
Now, you might be thinking, if this employee had already been out for one year, returned to work and then needed to be out again a few weeks later, wouldn’t that show that any additional leave in fact was not a reasonable accommodation? In this case, no. The employee needed an additional two weeks to adjust her medication, and then, presumably, could return to work and perform her essential job functions. In that case, the additional two weeks, could be a reasonable accommodation, and UPS’s refusal to even consider the request would have been an ADA/ADAAA violation.
Is there any way that time off beyond a year could be an undue hardship? Absolutely! UPS might even have been able to show that, but remember, this case ended in a settlement, not a verdict after trial. Had the case gone to trial, UPS might well have had evidence that it had already incurred significant hardship — and expense–by reason of the one-year leave. Of course it might have had to spend significantly more money in legal fees to do that. Then again, it already must have incurred loads of legal fees, considering the case had dragged on for about eight years and resulted in a $1.7 million settlement.
Was there anything else that the EEOC found wrong with UPS’s policy? Well, yes. The EEOC argued that UPS’s return-to-work policy was essentially a qualification standard that an employee must meet in order to keep his/her job. This too violates the ADA.
So, does this mean that an employer should not be generous with its leave policies? No, not at all. It means that the length of leave time alone does not necessarily mean that an employer is compliant with the ADA. The issue here was the rigid, inflexible manner in which UPS applied its policy. The result would likely have been the same had the UPS required employees to return to work after 6 months or 3 months and not entertained a request for extended leave. (Note also that policies that require an employee to return to work without restrictions or 100% healed also violate the ADA. Employees who can return to work and perform their essential job functions with other reasonable accommodations are still protected under Title I of the ADA/ADAAA.)
So here’s the bottom line: Make sure that your return-to-work policies are sufficiently flexible to take these types of situations into account. Treat requests for extended or additional leave the same way you would any other request for additional accommodations under the ADA/ADAAA. In other words, when you get such a request, you and the employee should “talk amongst yourselves, discuss”.
OK, I think we’re done here for now. See you next week!
Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.
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