Editor: Julie Athey

EEOC continues to target inflexible medical leave policies

Employers need to be very aware that the EEOC is not letting up on its recent efforts to target employers that have what the agency considers to be inflexible leave policies. In the March 2010 of FMLA Compliance Bulletin, I wrote about two lawsuits the agency had filed - against UPS and Supervalu, Inc. - alleging that the two companies had violated the ADA by automatically terminating employees who had used up all the leave available to them under the FMLA and the companies' leave policies.

Now, one of those lawsuits has settled for a substantial sum of money, and the EEOC has filed another one alleging the same type of violations.

One lawsuit settled . . .

FMLA Manual Reference

Chapter Twelve: FMLA's Relationship to Other Laws - Americans with Disabilites Act - What the ADA Requires

The EEOC recently announced that it had reached a settlement in its lawsuit against Supervalu, Inc., to the tune of more than $3 million and extensive remedial relief. The lawsuit had targeted the employer's alleged practice of terminating employees with disabilities at the end of medical leave rather than allowing them to take additional leave or offering them other reasonable accommodations that would allow them to return to work.

The Supervalu settlement covers 110 employees in the greater Chicago area who were terminated under the policy since 2003. That makes for an average award of approximately $29,000 for each employee. It bears a striking resemblance to a consent decree the EEOC entered into with Sears Roebuck and Co. in 2009. In that case, Sears agreed to pay more than $6 million.

In addition to the monetary relief, Supervalu has agreed to:

  • Ensure that employees involved in making accommodation decisions undergo training on the types of accommodations that are available to employees who are unable to return from leave and/or when they return from leave.
  • Hire consultants to review and recommend changes to its current job descriptions, ensure that the descriptions of the physical requirements of the job are accurate, and provide recommendations on possible accommodations to common work restrictions in various types of jobs.
  • Report regularly to the EEOC on its efforts to accommodate employees with disabilities who are attempting to return from medical leaves of absence.
  • Revise its communications with employees to: 1) assure them that they need not be 100 percent healed in order to be considered for a return to work; and 2) inform them of some of the types of accommodations that may be available if they return to work with medical restrictions.

Another lawsuit filed

In a new lawsuit filed September 30, 2010, the EEOC similarly alleges thata company called United Road Towing had a policy under which employees were terminated automatically once they reached a predetermined maximum number of weeks off. As with the UPS and Supervalu lawsuits, the agency says United should have pursued an interactive discussion with each disabled employee to determine whether a reasonable accommodation would allow them to return to work once they had exhausted their available leave.

Lessons learned

In light of the EEOC's doggedness on this topic, employers are well- advised to revisit all of their leave policies and practices - not just those under the FMLA - to ensure they do not run afoul of the ADA. That is true even if your policy is more generous than the law requires. It may also make sense to have your employment law counsel examine your policies and make any necessary adjustments in light of the ADA's reasonable accommodation requirements.