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Employer Alert: The EEOC Is Targeting Leave Policies That Violate The ADA

November 01, 2009 BY Meredith Guerrero

            With the passage of the Americans With Disabilities Amendment Act of 2008 (“ADAA”), which expanded coverage of the Americans With Disabilities Act (“ADA” or the “Act”), the federal government has made no secret of the fact that they are ramping up enforcement of the ADA.  Now more than ever, employers must carefully consider how they address disability discrimination in the workplace.  Most recently, the Equal Employment Opportunity Commission (“EEOC”) has targeted their efforts against employers whose medical leave policies impose strict leave periods that do not allow employees who are covered by the Act to take extended leave as a reasonable accommodation.  The EEOC has taken the position that inflexible leave policies that allow for termination immediately when leave is exhausted may violate the ADA by failing to contemplate accommodation of employees covered by the Act, as evidenced by two lawsuits recently filed by the EEOC.

Recent Cases

            On September 29, 2009, Sears Roebuck & Co. (“Sears”) agreed to pay $6.2 million to settle a lawsuit filed against it by the EEOC, in which the EEOC claimed that Sears’ workers’ compensation leave policy violated the ADA because it was inflexible and did not allow disabled employees to take additional leave as a reasonable accommodation.  This settlement is the largest obtained by the EEOC for a single lawsuit, and also requires Sears to amend its workers’ compensation leave policy and train its employees in ADA compliance.

            The action was filed in federal court in November of 2004 on behalf of a class of Sears employees.  The case arose from a charge of discrimination filed with the EEOC by John Bava, a former Sears service technician. According to the EEOC, Bava was injured on the job, took workers’ compensation leave, and, although still disabled by his injuries, repeatedly attempted to return to work. The EEOC alleged that Sears never providedBava with a reasonable accommodation that would have allowed him to return work.  Instead, Sears fired him when his leave expired. According to the EEOC, discovery in the lawsuit revealed that hundreds of other employees who had taken workers’ compensation leave were also terminated when their leave expired and that Sears never seriously considered whether a brief extension of their leave could be a reasonable accommodation. 

            On August 27, 2009, the EEOC filed suit against United Parcel Service (“UPS”) in U.S. District Court in Chicago, alleging that UPS violated the ADA by implementing an inflexible leave policy that fails to accommodate employees covered by the Act.  The lawsuit alleges that an administrative assistant at UPS took a 12-month leave of absence from work when she began experiencing symptoms of what was later diagnosed as multiple sclerosis.  She allegedly returned to work for a few weeks following her leave, but soon thereafter needed additional time off for complications arising from treatment she received for her medical condition.  The employee alleges that that she could have returned to work after an additional two-week leave of absence, but was terminated by UPS for exceeding its 12-month leave policy. According to the EEOC, UPS’s leave policy violates the ADA because it fails to take into account potential reasonable accommodations such as extended leave and sidesteps the interactive process required under the ADA.   

            In a press release issued August 28, 2009 by the EEOC, acting chairman Stuart J. Ishimaru stated that the lawsuit against UPS “should send a wake up call to Corporate America that violating the Americans With Disabilities Act will result in vigorous enforcement by the EEOC.  The ADA has been the law of the land for nearly two decades now, and employers simply have no excuse for failing to abide by its provisions.”

            EEOC Chicago Regional Attorney John Hendrickson stated that “policies . . . which set arbitrary deadlines for returning to work after medical treatment unfairly keep disabled employees from working. Sometimes a simple conversation with the employee about what might be needed to return to work is all that is necessary to keep valued employees in their jobs.”

Interplay With the FMLA

            As most employers are already aware, the Family Medical Leave Act (“FMLA”) provides that covered employers (i.e., employers who employ 50 or more employees for 20 or more weeks in the current or preceding calendar year) must provide eligible employees up to 12 weeks of unpaid, job-protected leave for serious health conditions during which the employee is unable to perform his or her job.  An employee is eligible for FMLA leave if he or she has worked for a covered employer for at least one year, for at least 1,250 hours over the previous 12 months.  However, an employee covered by the ADA may be entitled to leave beyond that required by FMLA if the leave can be considered a reasonable accommodation that would allow the employee to perform his or her job. 

            Under the ADA, a “qualified individual with a disability” is identified as “an individual with a disability who satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires, and who, with or without reasonable accommodation, can perform the essential functions of such position.”  29 C.F.R. § 1630.2(m)(2006).  When an individual is unable to perform the essential functions of a job without an accommodation, “the burden of  identifying an accommodation that would allow a qualified individual to perform the job rests with that individual, as does the ultimate burden of demonstrating that such an accommodation is reasonable.”  Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278, 1286 (11th Cir. 1997). 

            The federal regulations provides that an accommodation request is “reasonable” only if the accommodation actually assists the employee in performing the essential functions of his job and is not an “undue hardship” on the employer.  29 C.F.R. § 1630.2(o)(2006).  While a leave of absence might be considered a reasonable accommodation under the ADA, federal courts have consistently held that a request forindefinite leave of absence generally should not be considered a reasonable accommodation, as this would not assist the individual in performing his or her job.  In Wood v. Green, 323 F.3d 1309 (11th Cir. 2003), the U.S. Court of Appeals for the Eleventh Circuit explained that a “reasonable accommodation is by its terms most logically construed as that which, presently, or in the immediate future, enables the employee to perform the essential functions of the job in question.”  Id. at 1313 (emphasis added).


            In light of the EEOC’s recent crack-down on leave policies that allow for termination immediately when leave is exhausted, employers should immediately review their leave policies and ensure that the policy does not apply an arbitrary leave requirement that fails to allow for the possibility of flexibility for employees covered by the ADA, as amended by the ADAA.  Employers should also carefully consider any request for leave beyond that provided by the company’s leave policy by an employee who may be covered by the Act, keeping in mind that the ADAA has redefined the term “disability,” making it easier for an individual seeking protection under the Act to qualify as disabled within the meaning of the Act.   If you need assistance updating your policy, please contact Joe Chancey at (404) 885-6222 or [email protected], Megan Noble at (404) 885-6142 or [email protected], or Meredith Guerrero at (404) 885-6321 or [email protected]

The Journal is a publication for the clients of Drew Eckl & Farnham, LLP. It is written in a general format and is not intended to be legal advice to any specific circumstance. Legal Opinions may vary when based upon subtle factual differences. All rights reserved. 

Editorial Board:

H. Michael Bagley