March 2014

By: James B. Sherman, Esq.

A federal judge in Illinois recently refused to dismiss a class action case against United Postal Service in which the EEOC challenged the company’s policy that employees will be “administratively separated from employment” after 12 months of leave. The EEOC’s lawsuit alleged that UPS’s policy acted as a “100% healed requirement” and called for termination of employees who may be qualified but disabled. Because the policy allegedly called for termination unless employees were released to return to work within a specified time period (i.e. 12 months), the EEOC alleged (and the court agreed) that this violated UPS’s obligation under the ADA to make an individualized assessment of each employee to determine if she or he could perform the essential functions of their job, with or without reasonable accommodations.

Employers with similar policies that call for the termination of employees after they have been away from work for a certain amount of time should remember their obligation under the ADA to engage in an individualized interactive process with any disabled employee. This applies to any practice or policy used, for example, upon expiration of FMLA leave, for lengthy absences due to work-related injuries or illnesses (ie. worker’s compensation), instances involving insured short or long term disability coverage, or any other reason for a lengthy absence. Employers that terminate employees who may be disabled under the ADA, for extended absences without first exploring whether they can return to work through reasonable accommodations, do so at their own risk. For a review of your company’s leave policies and to avoid becoming the next employer sued by the EEOC in a class action ADA case, contact this article’s author, James Sherman, or any of the experienced attorneys of Wessels Sherman.