Another Reminder That Inflexible Employment Policies and the ADA Don’t Play Well Together – Court Refuses to Dismiss EEOC Action Based on “100% Healed” Policy

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One theme that resonates throughout court decisions and EEOC filings over the last few years is that application of inflexible employment policies to disabled employees often runs afoul of the Americans with Disabilities Act (ADA). Such is the case with “100% healed” policies, which require employees returning from leaves of absence to do so without any medical restrictions or face termination. As applied to a person with a disability, most courts hold that such a policy is a per se ADA violation. See, e.g., Powers v. USF Holland, Inc., 667 F.3d 815 (7th Cir. 2011).

On February 11, 2014, the court in EEOC v. United Parcel Serv., Inc., Case No. 1:09-cv-05291 (N.D. Ill. Feb. 11, 2014) provided yet another example of why inflexible employment policies and the ADA don’t mix. In this class action, the EEOC alleged that UPS maintained an inflexible 12-month leave policy, which provided that employees will be “administratively separated from employment” after 12 months of leave. The EEOC contended that this leave policy acted as a “100% healed” requirement and limited the ability of qualified individuals with a disability to return to work. Therefore, the EEOC alleged that UPS’s leave policy violated 42 U.S.C. § 12112(b)(6) because it operated as a qualification standard, employment test, or other selection criteria that screens out or tends to screen out a class of individuals with a disability and is not job-related or consistent with business necessity.

In the face of legal precedent holding that a “100% healed” policy is per se impermissible because it prevents individualized assessment and operates to exclude disabled employees who are qualified to work, UPS argued that this was irrelevant because the ability to regularly attend work and not miss multiple months is an essential job function and not a qualification standard. Without an actionable qualification standard, UPS contended that the EEOC’s § 12112(b)(6) claim failed.

The district court rejected this argument and denied UPS’s motion to dismiss. The court indicated that although regular job attendance can be an essential job requirement, the EEOC’s § 12112(b)(6) claim was not premised on attendance, “but rather on UPS’s imposition of a 100% healed requirement on those seeking to return to work.” As such, the court found that “the twelve-month policy can be considered a qualification standard—a medical requirement that an individual must meet in order to maintain his or her position with UPS—and not an essential job function.” Since the policy’s requirements fell within the definition of a qualification standard and the policy applies to qualified individuals with disabilities, the EEOC was allowed to proceed on this class action claim.

The decision in UPS is a strong reminder for employers to review their policies and to pay particular attention to any policies with inflexible requirements that may be applied to disabled employees. A main focus of the ADA is to ensure that employers interact with disabled employees to determine on an individual basis whether the employee can perform the essential functions of a job with or without reasonable accommodation. A “100% healed” policy and other inflexible leave policies bar this interaction and present employers with legal risk under the ADA.