Medical leave policies that strictly limit light duty jobs to employees injured on the job or require a “full medical release” or “no restrictions” before an employee returns to work have been landing employers in hot water under the ADA. The EEOC has taken the position that such policies violate the ADA and companies have paid millions of dollars to settle such claims. Just this month Supervalu Inc. agreed to pay $3.2 million to former employees to settle a federal discrimination lawsuit in Chicago filed by the EEOC. The suit alleged that the grocery company had an illegal policy and practice of terminating employees with disabilities at the end of medical leaves of absence instead of bringing them back to work with reasonable accommodations. It also alleged that the company violated the ADA by prohibiting the disabled employees from participating in the company’s 90-day light duty program if they were not injured on the job.

According to the EEOC, if an employer reserves light duty positions for employees with occupational injuries, the ADA requires it to consider reassigning an employee with a disability who is not occupationally injured to a vacant light duty position as a reasonable accommodation if (1) the employee is unable to perform the essential functions of his or her job; (2) the employee is able to perform the essential functions of the light duty position with or without accommodation; (3) no other effective accommodation is available, and (4) it would not pose an undue hardship.

Employer leave policies continue to be high on the EEOC’s enforcement agenda. There is no question the EEOC is taking a close look at employers’ leave policies and is ready to take on those that it believes violate the ADA. According to the EEOC, inflexible leave policies ignore the “individualized analysis” and accommodation requirements of the ADA.

Employers should consult with legal counsel for assistance in drafting leave policies and reviewing existing policies.