4.85 Million Reasons Why Employers Should Revisit Inflexible Leave and 100% Healed Policies

Author: Melissa Burdorf, XpertHR Legal Editor

Under a recent settlement, Interstate Distributor Company, a large national employer has agreed to pay $4.85 million to resolve a disability discrimination lawsuit filed by the EEOC. This settlement is proof that the EEOC will go after an employer if their policies and practices fail to provide equal opportunities in the workplace.

As part of its complaint, the EEOC claimed that two of Interstate's policies violated the Americans with Disabilities Act (ADA):

Maximum Leave Policy: Under this policy, Interstate automatically terminated employees who could not return to work after exhausting 12 weeks of medical leave - rather than determining whether it would be reasonable to provide additional leave as an ADA accommodation; and
No Restrictions Policy: Under this policy, Interstate immediately rejected any employee's request to return to work with restrictions - rather than trying to determine if there were reasonable accommodations that would allow the employee to return to work with restrictions.

Under the ADA, an employer is required to provide a reasonable accommodation (any accommodation an employer can provide without significant difficulty or expense) that will enable a qualified individual with a disability to perform the essential functions of the job. The EEOC has repeatedly challenged employer's policies and practices that do not incorporate an interactive process to assess whether additional, definite leave may be a reasonable accommodation under the ADA.

In addition, the EEOC has found that an employer's strict adherence to policies that require employees to return to work with no medical restrictions (such as 100% healed policies or no restrictions policy) likely violates the ADA because such policies fail to take into consideration an employee's ability to perform the essential functions of the job with accommodations prior to rejecting the employee's return to work.

In addition to revising the two policies and paying out millions of dollars, the EEOC is also requiring the following undertakings from Interstate:

Post a notice - for all employees to see - about the settlement;
Notify the EEOC (every six months) about all terminations of employees, FMLA extensions, employees' requests for accommodations and employee complaints regarding disability discrimination;
Adopt and maintain a written policy that addresses how reasonable accommodations should be handled - such policy must include, for example, a provision requiring that the employer engage in an interactive process to make individualized determinations about accommodations (See Reasonable Accommodation Policy; and
Conduct mandatory ADA-focused equal employment opportunity training for non-supervisory, supervisory and HR employees annually, with a defined length of training for each of these groups.

Because the EEOC has not yet issued revised guidance on the topic of reasonable accommodations and leaves of absence under the ADA, employers should be proactive and consider taking these additional preventative steps when an employee is out on leave:

Review any leave-related policies, including attendance policies, to ensure that such policies do not have any inflexible maximum leave provisions.
Send a letter or call an employee that is nearing the end of his or her leave to remind him or her that their leave is about to expire. A follow-up letter can be sent as an extra measure.
If the employee fails to return to work upon expiration of his or her leave, send a letter advising the employee of the expiration of their FMLA right to reinstatement. Barring receipt of any additional information about their condition, the employee can then be advised that his or her employment is terminated. Employers should always keep in mind that the employee should always be given an opportunity to present any issues with regard to their condition that may impact their return to work at the conclusion of FMLA leave prior to termination. Failure to do so can result in a claim that the employer failed to comply with the ADA's interactive process requirements.
When handling challenging extended leave situations, consider each situation on an individualized basis (as required by the ADA) and consult with experienced employment counsel to ensure that ADA issues are appropriately addressed.