That maximum leave policy you have is now no good

In ADA cases terminating employees after 12 months of leave may get you a lawsuit.

Many companies have leave policies that invoke a 12 month limit on the leave, after which the employee on leave is terminated. I have worked with long-term disability policies that had similar provisions. If you have such a policy you may want to rethink it, the EEOC just settled a case that shows they do not think those policies are acceptable.

Long case with UPS

In 2009 the EEOC filed a lawsuit against United Parcel Service (UPS) for a violation of the Americans with Disabilities Act. The EEOC felt that the policy of terminating employees after 12 months of leave violated the rights of employees with disabilities. According to the law firm of Norris McLaughlin & Marcus, P.A., “In the settlement, UPS agreed to update its leave policies, conduct training on the policies, and pay $2 million in damages…The settlement highlights the EEOC’s longstanding position that maximum leave policies or “no fault” leave policies may have to be modified for employees requiring leave beyond the maximum amount permitted in the policy, when the leave is required to accommodate an employee’s disability.”
I covered a topic similar to this in Yes, leave can be considered a reasonable accommodation even when not covered by the FMLA.

Steps that might help

In my post Terminations after extended leave is NOT a sure thing I offered some steps that an employer might be able to take with employees that have been on an extended leave. These include:

  • Make sure you take the request for extended leave seriously.
  • Begin a DOCUMENTED and interactive conversation with the employee to understand the nature of their need for an extended leave.
  • Review how the company has handled their absence to date.
  • Document all the alternatives that have been considered.
  • DOCUMENT the business necessity of rejecting any request for extended leave as an accommodation.
  • Involve counsel as needed.

This is an ADAAA situation and requires documented, interactive discussions. You can no longer rely on a 12 month expiration period on leave, as the UPS case shows.
This area is more complicated than the space in this blog allows so if you are seeking more guidance you can read the Enforcement Guidance:  Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act from the EEOC. Read these guidelines BEFORE you terminate any employee who has been on an extended leave for medical reasons. The standard has been set with UPS.

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