UPS has just settled a lawsuit brought by the Equal Employment Opportunity Commission (EEOC) alleging the company’s inflexible leave policy discriminated against disabled workers.  The fact pattern of the lead claimant shows the type of situations that generate these issues.  An employee took a 12-month leave of absence, returned to work for a few weeks, but then required more time off.  She claims she could have returned to work after an additional two-week leave, but UPS fired her for exceeding its 12-month maximum leave policy.  The case is EEOC v. United Parcel Serv., Inc., No. 1:09-cv-05291 (N.D. Ill.), proposed consent decree 7/28/17. 

The case was settled before being finally resolved, but the judge hearing the case had rejected UPS’s argument that its 12-month leave maximum was a permissible attendance policy under the ADA because regular attendance is an essential job function with workers.  The EEOC has consistently argued against employer maximum leave policies and addressed its position in a May 2016 resource document.

In an unusual part of the consent decree, UPS agreed to include the requirement that human resources personnel seek legal counsel before firing a worker who has reached the end of a medical leave of absence.  UPS also agreed to pay some $2 million to be distributed among more than 70 workers affected. 

Editor’s Note: This firm has provided numerous articles in previous newsletters giving employers suggestions on how to avoid the problems faced by UPS.  These potential solutions include adding wording into the policies or to individual employees near the end of their maximum leave that they must reapply for any extensions of their leave, and any such extensions are to be considered provided they are reasonable and do not work an undue hardship on the company.  Case law suggests that extensions need not be for an indefinite period, but the issues are so controversial that advice of counsel is helpful.

Wimberly, Lawson, Steckel, Schneider & Stine

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