Jottings By An Employer's Lawyer

Monday, August 31, 2009

Employees in Limbo Land - EEOC Challenges the Solution

One of the great dilemma's for employers are employees who go on long term leaves of absence. Absent some sort of policy that puts a deadline on how long that leave can be, I have seen employers with untold numbers of individuals who may or may not still be employees. My term for them: "lost in limbo land."

In Texas, where workers compensation retaliation has always been a major cause of action, the law has evolved so that a leave policy which results in termination after a fixed period of time, applied uniformly without regard to whether the leave of absence was based on a work related or non-work related injury, is a valid defense to those claims. For a long time, we have cautioned that the EEOC took the position, at least theoretically, that such policies could be a violation of the ADA. However, during the Bush administration, as far as I know, they did not pursue litigation to that effect.

But as we all know it's now a new day and Employment Law 360 ($) has the story of a recent lawsuit filed in the the Northern District of Illinois, that raises that specific issue, UPS Medical Leave Policy Violates ADA .

The key paragraph from the Complaint:

Since at least 2002, UPS has maintained an inflexible 12-month leave policy which does not provide for reasonable accommodation of employees with disabilities and which instead provides for termination of their employment, in violation of Sections 102(a)and 102(b)(3)(A) and (b)(5)(A) of Title I of the ADA, 42 U.S.C. ยงยง 12112(a) and 12112(b)(3)(A)and (b)(5)(A).

Accompanied by this message from Stuart J. Ishimaru, the acting Chairman of the EEOC:

This case should send a wake-up call to corporate America that violating the Americans with Disabilities Act will result in vigorous enforcement by the EEOC. The ADA has been the law of the land for nearly two decades now, and employers simply have no excuse for failing to abide by its provisions.

With all due respect to acting Chairman Ishimaru, its not all that clear. And in fact, in the story, UPS denies that it has an automatic policy, instead saying it has granted exceptions to its policy for employees who seek accommodation under the ADA, and the 12 month deadline is "not automatic or absolute."

Although there is a long way from a complaint to an appellate decision that would provide a definitive answer, this one at least initially appears to be set up to do so.

Hopefully, as this case wends it way through the judicial process, the courts will understand that this is an issue that has significant practical impact and one in which a ruling that does not take into account the need for employers to have control over who and who is not an employee in situations involving long term absences, could wreak considerable havoc.

Update 9.14.09: This is obviously not a one time idea by the EEOC, or at least the Chicago Region, as Employment Law 360 ($) is reporting a second employer has been sued for having a one year leave policy. See, EEOC Targets Supervalu In New ADA Class Action.This suit is also filed in the Northern District of Illinois but it also merited its own press release from the Commission.


Good post highlighting a frustrating issue for both employers and employees!

Important to double check with state law in addition to the ADA. Here in Washington state I think there is a very good argument that as long as there is a potential return date - even if in the distant future - an employer cannot terminate an employee while on long term disability leave. This is because of Washington caselaw which states that unpaid leave can be a reasonable accommodation to a disability.

UPS may be arguing that it does not have an automatic or inflexible policy, but I have seen similar language in *many* executive level employment contracts. And every time, I argue against the inclusion of that paragraph.

This will be an interesting case to follow - thanks for discussing it.
Thanks for highlighting an issue that is frustrating to both employers and employees!

I think it is also important to look at state law in addition to the ADA for answers to this question. Here in Washington, the state anti discrimination law has been interpreted by our courts to make it clear that leave without pay is a reasonable accommodation for a disability. So, I have argued that as long as there is a potential return to work date - even if it is far in the future - means an employer cannot terminate the worker while on leave.

UPS may be arguing that its policy is not automatic or inflexible, but I certainly have seen such policies written into many executive level contracts. I'm usually arguing to have the language removed.

This will be an interesting case to watch - thanks for discussing it.
It has always struck me funny as I have cautioned my clients that the EEOC takes this ridiculous position regarding extended leaves beyond the FMLA 12 weeks that the EEOC in essence says, "attendance at work is not an essential function of work." What a joke. Here's hoping the EEOC gets tossed on its can in this case. Twelve months of leave is plenty. Indefinite leave, by its very definition is unreasonable.
The EEOC got JPMorgan Chase & Co. to pay $2.2 million in 2006 (see online) and United Blood Services to pay $650K in 2001 (see online) due to inflexible leave limits.

The point is that the EEOC says the ADA requires an individualized assessment of "reasonable accommodation," rather than a blanket/uniform/inflexible rule.

Time off (including additional time off beyond a company policy or the 12 weeks of FMLA) is only a reasonable accommodation when it is likely to allow an employee to work; accommodations are only "reasonable" when they're likely to help an employee to work. There's no ADA requirement to accommodate employees to not work.
This is a very troubling issue for employers. Personally, I have always struggled with leave as a reasonable accomodation for a disability under the ADA (and under the state law counterparts), as there seems to be no consistent policy or rationale for when it is or is not required. The comments by the EEOC, however, are reflective of an administrator totally out of touch with the reality of employers.
Pom, the EEOC "got" the employers to pay b/c the employers were tired of the bleeding, not b/c the EEOC was right. Not one single case that I've seen has supported this position. Moreover, your "the ADA requires accommodation of leave if it allows an employee to return to work" is hogwash. The ADA applies to those with disabilities who can perform the essential functions of a job, with or without a reasonable accommodation.

Call me foolish, but doing the job is typically an essential function of the job. You can't be performing your job's essential functions while on leave.

The EEOC is attempting to legislate an indefinite leave leave requirement b/c the EEOC doesn't like the fact that FMLA limits leave to 12 weeks. Employers are getting killed by this government and nobody seems to care.
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