Human resource professionals know that administering leave policies and practices is one of the most difficult tasks for any employer. An employer’s obligations to provide reasonable accommodation to a disabled employee and to engage in the interactive process, paired with privacy issues regarding an employee’s medical information, make decisions regarding extension of medical leaves, returns from leave, and termination of employment when an employee is unable to return from leave, a particularly delicate balancing act. The EEOC’s recent legal challenge to a UPS policy requiring that employees “be administratively separated” from employment after 12 months on medical leave offers insight into a new EEOC approach to challenging medical leave policies that contain hard and fast rules about return to work.
In EEOC v. United Parcel Service, Inc., the EEOC is advancing a class action challenge to the longstanding UPS medical leave policy that essentially requires that an employee on medical leave for 12 months be separated from employment unless the employee can return to work after 12 months of leave without restrictions. The EEOC has characterized the policy as a “qualification standard” that illegally screens out a class of individuals with disabilities and argues that is it not job-related and not consistent with business necessity. UPS, on the other hand, claims that an employee’s ability to regularly attend work and not miss multiple months on the job is an “essential job function,” not a qualification standard. They rejected UPS’s attempt to dismiss the case with these arguments and the case will proceed toward a jury trial.
While some courts have held that regular attendance can be an essential job function; those holdings have been quite fact specific. Moreover, at least in California, the FEHA regulations implemented in 2013 impose a specific obligation on employers to engage in an interactive process regarding reasonable accommodation when an employee’s protected medical leave under FMLA or workers’ compensation, expires. Accordingly, rather than focusing on a specific time frame, an employer’s focus should always be on the interactive process and whether a reasonable accommodation may assist in returning the employee on leave to his or her job.
In light of the obligation to reasonably accommodate and also engage in the interactive process, employers should take the following steps to make sure their medical leave policy or practice does not run afoul of the law. At a minimum, an employer should:
Review any written policy to make sure it does not contain arbitrary time frames or return to work guidelines that undercut the employer’s obligation to engage in the interactive process around reasonable accommodation with each employee;
Make sure any written policy or established practice creates a structure which invites employees to engage in the interactive process rather than stopping the process with artificial hurdles;
Carefully document exchanges with the employee around extensions of leave and possible return to work;
If an employee makes a request for reasonable accommodation that includes an extension of leave for a specific period of time, always consider the request even if the request is outside the articulated limits of the company’s policy;
If the company is considering terminating an employee rather than extending a leave, ask how the company would prove that the extension of the leave would cause undue hardship to the business. It is usually advisable to consult with counsel before making the final termination decision.