« Back Company Agrees to Settle Lawsuit Challenging its Maximum Leave Policy

August 10, 2017

This month, the United Parcel Service Inc. (“UPS”) agreed to settle an eight-year-old lawsuit brought by the Equal Employment Opportunity Commission (“EEOC”) challenging UPS’s policy of discharging workers who cannot return from medical leave after 12 months. EEOC v. United Parcel Serv., Inc., N.D. Ill., No. 1:09-cv-05291. In 2014, the court rejected UPS’s argument that its maximum 12-month leave policy was acceptable under the Americans with Disabilities Act (“ADA”) because regular attendance is an essential job function for its employees.

This settlement can be viewed as a “win” for the EEOC in its effort to restrict employers’ use of maximum leave policies. The EEOC has long taken the position that leave can be a reasonable job accommodation under the ADA. It is the commission’s position that maximum leave policies are not per se violations of the ADA, but an employer may be required to make exceptions to such policies for employees with disabilities. Such exceptions include potentially granting leave beyond the amount specified in a maximum leave policy. In spite of this long-held position, the EEOC has continued to receive charges challenging maximum leave policies. Last year, the commission formally reaffirmed and published its position in a May 2016 resource document, asserting that “such [maximum leave] policies may have to be modified as a reasonable accommodation for absences related to a disability, unless the employer can show that doing so would cause undue hardship.”
 
This lawsuit by the EEOC, and the ultimate settlement, serves as a reminder to employers that:
  1. Even though an employer has a leave policy providing a “maximum” amount of leave, it doesn't mean that the employer can always enforce it against an employee with a disability.
  2. Policies that limit the amount of leave provided to employees may violate the ADA when, in practice, these policies require the automatic termination of an employee with a disability after the employee reaches a prescribed, inflexible leave limit.
  3. Employers should utilize the interactive process to ensure additional leave is not available as a reasonable accommodation before terminating an employee under a maximum leave policy.

Please contact any member of Taft’s Labor & Employment group for additional information on how this directly affects your business.

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