From ADA Compliance Guide, ©Thompson Publishing Group, Inc.
Employers that fire workers when their ADA leave exceeds company-imposed leave caps got a wake-up call on Aug. 21 when the EEOC settled for $650,000 an ADA claim involving a leave policy.
Inflexible policy
The medical policy of Blood Systems Inc. and United Blood Services, its subsidiary,unlawfully called for the automatic discharge of persons who took leave for any reason for more than 120 days, according to the agency.
An ADA complaint was filed with the EEOC by 23 employees with disabilities who were terminated under the policy. The policy''s strictness did not permit the company to consider information that would have allowed the employees to return to work, said Pamela Moore-Gibbs, a Chicago-based trial attorney for the EEOC in an interview with a Guide editor.
For example, one employee with a disability had a physician release form that would have allowed the employee to return to work a week or two after the company medical leave had expired, she noted. An exception to the leave cap should have been made, she said, but instead it was rigidly enforced and the worker was fired.
Individual assessment
Each employee faces a different situation, so employers should avoid a cookie-cutter approach, she advised, urging employers to look at each case separately. Blood United''s policy did not allow for any individualized assessment, she stated.
The ADA requires a case-by-case determination of whether a leave extension beyond the cap would be a reasonable accommodation or result in an undue hardship, according to the EEOC.
An interactive process between the employee and the employer should be used to make this determination, Moore-Gibbs recommended. A policy of automatic termination simply does not allow for that exchange to take place, she explained.
Consistent rules
In its Technical Assistance Manual on Title I of the ADA, the EEOC states that while employers may establish attendance and leave policies that are uniformly applied to all employees, they may not refuse leave needed by a worker with a disability if other employees can take leave.
Employers are not obligated to provide paid leave, the EEOC says, but accommodations may include leave flexibility and unpaid leave. "If they had just considered an extension of leave there probably would not have been a violation," Moore-Gibbs remarked.
Policy modified
In addition to paying the employees a combined total of $650,000, the employer agreed to modify its policy to individually consider requests to extend leave.
United Blood will require managers to undergo ADA training, keep records and report to the EEOC on requests for extended medical leaves.
The ADA does not require an employer to keep employees on leave indefinitely, but it does prohibit an inflexible cap on leave, emphasized John Hendrickson, an EEOC attorney.
Flexibility is key
No doubt, employers are entitled to enforce medical leave policies. They are not required to continue the employment of workers on medical leave forever. The ADA does not say that, and the EEOC does not say that. What the law does require is that an employer not enforce an ironclad limit against an employee with a disability without looking at the employee individually and without considering whether some flexibility would get the employee back to work performing the essential functions of his or her job," Hendrickson concluded.