The EEOC also recently filed a lawsuit in federal court in Chicago challenging the common employer policy of requiring employees to be “administratively separated” from employment after 12 months’ medical leave. The suit has withstood the employer’s motion to dismiss the complaint. EEOC v. United Parcel Service, Inc., 2014 U.S. Dist. LEXIS 17187 (N.D. Ill. 2014).

 

In this case, the employer terminated employees who had been on medical leave for 12 months unless they could return to work without restrictions.  The employer argued that its policy complied with the Americans with Disabilities Act because an employee’s ability to come to work regularly and not be absent for months on end is an “essential job function.”  In other words, the employer contended, it maintained a lawful “attendance policy” rather than an unlawful “100% healed” qualification that could screen out disabled individuals.  The EEOC countered that the mandatory termination policy was in fact a “100% healed” policy that operated as an unlawful qualification standard because its blanket application prevented an individualized assessment of whether an impaired individual could return to work with a reasonable accommodation.

 

Whatever the outcome of this case, the practical lesson is that in medical leave cases, employers should:

  • enter into a dialogue with the employee;
  • make an individualized determination of whether the employee can return to work with a reasonable accommodation; and
  • document throughout the leave how the employee’s absence is creating a hardship for the organization.