Rigid Leave Policies Can Get You Into Trouble

Recently, United Parcel Service, Inc. (“UPS”) agreed to pay $2 million to end a nationwide disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (“EEOC”). The EEOC had charged UPS with violating the Americans with Disabilities Act (“ADA”) by maintaining an inflexible leave policy, whereby the company fired disabled employees automatically after 12 months of leave, without affording them the opportunity of taking additional leave or otherwise accommodating their return to work.

The settlement with UPS highlights the danger employers face if they have inflexible leave policies, even if those policies are generous like that of UPS. To better understand what the UPS settlement means for employers, DiMuroGinsberg partner, Jonathan R. Mook, addresses a number of the major questions involving this important issue:

What is the EEOC’s view on leave caps under the ADA?

Put simply, the EEOC says absolute leave caps are verboten. That’s because they do not allow for the possibility of reasonably accommodating a disabled employee by extending that individual’s leave beyond the cap. Leave to allow a disabled employee to obtain medical treatment or to recuperate may be a reasonable accommodation under the ADA. Whether leave is appropriate in a given instance is an individualized, interactive process between the person with a disability and the employer. An absolute leave cap does not allow for this process to occur and, hence, is considered to be a per se violation of the ADA by the EEOC.

A 12-month cap on leave is lengthy. Why can this amount of leave not be enough under the ADA?

A 12-month leave cap is, indeed, extremely lengthy. Nonetheless, there is a possibility that within a short time following the 12 months, a disabled employee will be able to return to work. Hence, the EEOC takes the position that 12 months may not be enough leave required by the ADA.

Should employers consider doing away with their leave caps?

I would not recommend that employers do away with the leave caps they have instituted. There are many practical reasons for an employer to have a cap. The ADA simply requires that before an employer terminates an employee when that employee’s leave exceeds the cap, the employer make an individualized assessment as to whether providing some reasonable additional leave will be sufficient to allow the employee come back to work.

How long should a leave cap be?

In light of the EEOC’s position on leave caps and the fact that even a 12 month cap on leave may need to be lengthened as a reasonable accommodation, I would recommend that employers institute a leave cap of substantially less than 12 months. Due to the FMLA, larger employers will need to have a leave cap of at least 12 weeks of medical leave, and possibly longer depending upon state laws. Thus, an employer should consider instituting a leave cap of at least 12 weeks. However, how much more than 12 weeks will depend upon the nature of the employer’s business and its workforce.

How should employers address requests for leave beyond the employer’s leave cap?

Just as with any other ADA request for reasonable accommodation, an employer should evaluate an employee’s request for additional leave, as well as other types of accommodations that may allow the disabled employee to return to work. One such accommodation might be transfer to a vacant position that the employee who is out on leave could perform.

If the employee keeps requesting an extension of his or her leave, at some point, the employer will be in a position to document why granting more leave would create an undue hardship. That may be because the position must be filled or the employee cannot provide medical evidence that with some specific amount of additional leave, the employee will be able to return to work.

Do the courts follow the EEOC’s position on leave as a reasonable accommodation?

Most do, but recently the Seventh Circuit Court of Appeals, in Severson v. Heartland Woodcraft, Inc., ruled that the ADA does not require multi-month leave. The Seventh Circuit covers Illinois, Indiana and Wisconsin, so its decision does not directly apply to Virginia employers. However, the Seventh Circuit’s position clearly will be cited as persuasive reasoning that should limit the amount of leave an employer must provide.

Without question, the amount of leave that an employer may be required to provide to an employee as a reasonable accommodation will continue to be the subject of debate in the courts. At some point in time, it is likely the Supreme Court will be called upon to provide some definitive guidance as to the proper analysis.

What’s the takeaway for employers?

Compliance with the ADA requires an individualized approach. When dealing with a disabled employee, employers may not refuse to consider possible accommodations because those accommodations would conflict with an employer’s rules. A leave cap is one of those rules that may need to bend as a reasonable accommodation. Under the ADA, there are no absolutes. If an employer is going to deny a possible accommodation, including additional leave, the employer should be able to justify that denial with fact based reasons as to why implementing the accommodation would be unreasonable and create an undue hardship.

This article was written by Jonathan R. Mook. For more information about this topic and other labor and employment law topics, please contact Jonathan Mook at 703-684-4333 or by email at jmook@dimuro.com.