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.