Lou Michels and Rod Satterwhite are partners in the Labor & Employment group at McGuireWoods LLP. Both handle employment litigation on behalf of employers, and advise companies on employment issues regularly.
posted on Friday, September 29, 2006 12:12 PM by Lou Michels

Fixed Maximum Leave Entitlements -- A Bad Idea

    The EEOC has just demonstrated, again, why it's a mistake for employers to set fixed limits on the amount of medical leave allowed employees before termination occurs.  Using one of its favorite targets, Denny's, Inc., the Commission filed suit in Baltimore this week under the Americans with Disabilities Act.  The suit attacks Denny's policy of enforcing a maximum 26-week medical leave entitlement (apparently reduced in some cases to 12 weeks) without assessing whether an employee is "disabled" and without making an individual determination of reasonable accommodation.

     Denny's disputes the claim, which originated in the termination of a Denny's manager following the amputation of one of her legs.

     The EEOC has long focused on fixed medical leaves as a target for action under the ADA.  The reasoning goes something like this - an employer that automatically terminates employees after a set amount of time is not making the kind of individual determination on the issues of disability and reasonable accommodation required under the ADA.  The Commission in some cases views the fixed absence period as a "floor" for reasonable accommodation.  In other words, by establishing a fixed time which the employee can be away from work with no adverse effect, the company is admitting that it can accommodate such an absence without an undue hardship.

     Under this view, the company is then required to separately assess whether the employee can return to work at the end of the medical leave period.  A request for an additional 2-3 weeks of time off, on top of an approved absence of 26 weeks, is generally viewed as a reasonable accommodation, notwithstanding the fact that the employee has already been away from work under the medical leave entitlement. 

     Employers can maintain medical leave maximums, but must remember that they will be required at the end of that period to make an individual assessment of the employee's ability to return to work.  In many cases, this will not be a problem, the employee will not be able to provide a definitive return to work date, or will be on long-term disability, typically situations where she is not qualified for her position under the ADA.  In those situations where an employee might be able to return to work at the end of a lengthy medical leave entitlement, the employer must be extra careful to document any adverse action and show that it is based on a review of requirements under the ADA standard.

Comments

# re: Fixed Maximum Leave Entitlements -- A Bad Idea

Friday, December 08, 2006 11:14 AM by R.J. Bohner, Jr.
I just don’t get this one. The EEOC’s own “Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act,” at para. 24, states:

Example D: An employer is seeking a reassignment for an employee with a disability. There are no vacant positions today, but the employer has just learned that an employee in an equivalent position plans to retire in six months. Although the employer knows that the employee with a disability is qualified for this position, the employer does not have to offer this position to her because six months is beyond a “reasonable amount of time.” (If, six months from now, the employer decides to advertise the position, it must allow the individual to apply for that position and give the application the consideration it deserves.)

(http://www.eeoc.gov/policy/docs/accommodation.html).

Therefore, the EEOC has said in its Guidance that holding a job open more than 6 months is unreasonable. Also, the ADA only applies to a “qualified individual with a disability”. Someone who cannot show up to work for more than 6 months is not “qualified” since regular attendance is an essential function of virtually all jobs. See Parker v. Sony Pictures Entertainment, Inc., 260 F.3d 100, 111 (2nd Cir. 2001) (upholding jury verdict on ADA failure to accommodate claim for employer that terminated plaintiff who it believed could not return to work after 6 month leave of absence); Fields v. St. Bernard Parish Sch. Bd., 99-3396, 2000 U.S. Dist. LEXIS 15637; 11 Am. Disabilities Cas. (BNA) 1845, at pp. 21-23 (E.D. La. Oct. 19, 2000 (affirming summary judgment on ADA claim of school teacher who was terminated six months after she had stopped working, holding that plaintiff was not a “qualified individual with a disability” within the meaning of the ADA because she did not have ability to appear for work and to complete assigned tasks within a reasonable period of time, which were “essential functions of her employment position.”); Balek v. Hobart Corp., No. 97 C 8130, at p.7-8, 1999 U.S. Dist. LEXIS 12938 (N.D. Ill. Aug.17, 1999) (granting summary judgment on plaintiff’s claim that defendant’s policy of discharging employees who were on disability leave for six months constitutes termination because of a disability in violation of the ADA. Defendant’s policy did not distinguish between disabled and non-disabled employees and the policy simply stated hat “employment may be terminated” for “illness or injury beyond 26 weeks of absences.” “Leave policies such as Hobart’s that are uniformly applied do not violate the ADA.” (citing 29 C.F.R. pt. 1630.5 app.)); Cino v. Sikorsky Aircraft, 42 F. Supp. 2d 147, 151 (D. Conn. 1998) (employer not required to make accommodations for employee who failed to report to work for six months; plaintiff’s long history of absenteeism and six month absence rendered him not qualified); Morton v. GTE North, 922 F. Supp. 1169, 1182-83 (N.D. Tex. 1996) (Employer did not violate ADA when, pursuant to policy of terminating any employee requiring more than six-months of short-term disability, it terminated plaintiff. The court granted defendant’s motion for summary judgment and denied plaintiff’s motion, holding that she did not have standing under the ADA because she was not a “qualified individual with a disability.”).