We have said it before — the EEOC believes that leave is a reasonable accommodation and automatic termination when FMLA leave runs out violates the Americans with Disabilities Act. Even though at least one federal court has made clear it disagrees, the EEOC continues to press the point and has recently filed a lawsuit against the Blood Bank of Hawaii for failure to provide reasonable accommodations for and then firing employees who required additional leave time for their disabilities.
The EEOC contends that the blood bank had “a rigid maximum leave policy” under which employees with disabilities who ran out of FMLA leave were not granted a leave of absence as a reasonable accommodation. The complaint also alleges that employees returning from leave were required to return to work without limitations. As a result, some folks lost their jobs. The EEOC thinks this violates the ADA.
According to the EEOC:
“Employees should never be terminated or forced to resign simply because they need additional leave for their disabilities.”
The EEOC is looking for disability cases. It has issued guidance on leave as a reasonable accommodation, and going after inflexible leave policies is one of six national priorities identified by the Strategic Enforcement Plan. With that in mind, make sure you don’t end up as a target.
- Check your policies. If any of them state or suggest that an employee who exhausts FMLA leave will immediately be terminated, change them. The EEOC has made it clear it wants no bright lines.
- Train your managers and supervisors. Make sure people understand that the company will always consider a reasonable accommodation. It might be some amount of leave, it might not. What you want to avoid is a supervisor (or an HR manager) saying “We always terminate people who can’t return from leave—no exceptions.”
- Check you return to work letters. Eliminate any language that says “you have to return to work without restrictions.” That kind of talk will get you sued. No matter what the restriction, you have to consider whether you could provide a reasonable accommodation.
- Always consider vacant positions. The ADA requires that you consider whether the employee can perform (with or without a reasonable accommodation) the essential functions of a vacant position for which he or she is qualified. You may not have a vacancy, and you don’t have to create one—but you always need to check. If the employee can perform the vacant position (even if it pays less), offer it as a reasonable accommodation. Also, it doesn’t have to be a temporary assignment.
The ADA is tricky and every situation is different. Have a process to follow but don’t rely on bright lines.