The ADA and Leave Policies - Don't Get Burned!!

The Equal Employment Opportunity Commission (EEOC) reported that Interstate Distributor Company, a trucking firm, agreed to pay $4.85 million to settle a lawsuit alleging pattern and practice violations of the Americans with Disabilities Act (ADA).  Read the EEOC’s press release here.  According to Interstate’s policy, if an employee, after exhausting 12 weeks of leave needed additional leave time Interstate automatically terminated them rather than determining if it would be reasonable to provide additional leave as an accommodation.  Under this policy, if an employee had restrictions, Interstate refused to allow them to return to work and failed to determine if there were reasonable accommodations that would allow the employee to return to work with restrictions. Interstate’s leave policy stated that employees on leave were automatically terminated after exhausting 12 weeks of leave unless they were able to return to full-duty work without limitation.  

This is a pretty straight forward policy – easy to administer; no discretion, objective on its face.  So, what’s the problem?

The EEOC charged that Interstate violated federal law by refusing to make exceptions to this "no restrictions" policy.  That’s the problem.  The EEOC holds the position that employers must make an individualized determination for each employee that has exhausted a leave of absence as to whether the employee can return to work with or without reasonable accommodation for a disability. The EEOC has been successfully pursuing this legal theory in court.  Enforcement of ADA claims remains a high priority for the EEOC and systematic violations, i.e., widespread or pursuant to employer’s policy or practice, are of special interest. 

Bottom Line  Employers would be wise to have their employee handbooks, policies and procedures reviewed and updated regularly to confirm that they are in compliance with the law.  Employers should have attendance policies and practices that address how reasonable accommodations will be provided – acknowledging that for paid or unpaid leave might be a reasonable accommodation for employees with disabilities.  Employers should also routinely provide EEO training for their managers and human resources personnel to insure that understanding and appropriate implementation of policies and procedures.  

Please contact the law office of Joycelyn McGeachy-Kuls if you're facing this issue or have any questions or visit our website at jmkuls.com for more information.  

Do You Really Want to Replace An Employee on FMLA Leave?

According to the Family and Medical Leave Act (FMLA), an employer must return an employee to the same or an equivalent position upon return from FMLA leave.  The question that many employers have is “What is an equivalent position?”

The regulations state that an "equivalent position" is one that is virtually identical to the employee's former position in terms of pay, benefits and working conditions, including privileges, perquisites and status. It must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority.  Still not clear?  The courts are might offer some guidance.   

Here's the scenario: 

A female computer teacher went on maternity leave.  Due to complications during delivery and a medical condition that her infant had, the teacher required a lengthy FMLA leave. Her school district hired a substitute teacher to take over her assignments during her leave of absence.   A few weeks later, the teacher on leave was informed by the school principal that he decided to replace her permanently.  The school district gave the teacher on leave the option of returning to a full-time classroom teacher position instead of a computer teaching position.  When she declined the classroom position, the school district terminated her employment.  The teacher is suing alleging FMLA interference and retaliation.  Read the filings here.

 

This case is currently being litigated but this scenario is not unique.  Employers are often tempted to make changes in their organizations when a current employee is out for period of time and especially when things seem to be going well with a new employee or the new arrangement.  However, replacing an employee on FMLA will likely expose your organization to litigation. 

The Bottom Line for Employers:

• Avoid permanently replacing employees while they're on FMLA leave.  Chances are, once you’ve found some way of insuring that their work is being performed, you can wait a few weeks or months until the employee returns to work.  

• If you can't wait and are returning an employee to an equivalent position, you should be able to articulate your reason for this decision (and its timing).  You should also be able to demonstrate that the new position requires the same level of duties, skill, responsibility, and offers the same compensation, earning potential, authority and career path and promotion opportunities within your organization as the prior position.