Why it matters: Is an employer’s policy of terminating employees who are unable to return to work after 12 months of leave an attendance policy or a 100 percent healed policy in violation of the Americans with Disabilities Act? A federal district court judge in Illinois sided with the Equal Employment Opportunity Commission and denied a motion to dismiss by the United Parcel Service, finding that the policy could be considered an impermissible qualification standard under the ADA.

Detailed Discussion

Since 2002, the United Parcel Service has maintained a leave policy providing that employees will be “administratively separated from employment” after 12 months of leave. The policy is applied to all employees, even those with disabilities who can perform the essential functions of their job with or without a reasonable accommodation.

The EEOC filed suit alleging the policy violated the Americans with Disabilities Act and cited the example of former UPS employee Trudi Momsen as an illustration. Momsen began working at UPS in 1990 and took a 12-month medical leave of absence in 2006-2007. When she returned to work in February 2007, she needed a cane to walk and requested accommodations, such as using a handcart. Momsen injured herself soon after returning to work and sought additional medical leave.

In lieu of granting the leave, UPS terminated her in March 2007 based upon the 12-month leave policy.

The EEOC filed suit, alleging that the policy was a “100 percent healed” requirement that operates as a qualification standard in violation of Section 12112(b)(6) of the ADA, which prohibits employers from “using qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities unless the standard, test or other selection criteria, as used by the covered entity, is shown to be job-related for the position in question and is consistent with business necessity.”

In response, UPS argued the policy was an attendance policy and that the ability to regularly attend work is an essential job function – not a qualification standard, employment test, or other form of selection criteria.

But U.S. District Court Judge Sara L. Ellis sided with the EEOC, finding that the policy could be considered a qualification standard and denying UPS’s motion to dismiss the suit.

EEOC regulations define “qualification standards” as “the personal and professional attributes including the skill, experience, education, physical, medical, safety and other requirements established by a covered entity as requirements which an individual must meet in order to be eligible for the position held or desired.” An “essential function” is defined as “the fundamental job duties of the employment position the individual with a disability holds or desires.”

Although acknowledging case law from the Seventh U.S. Circuit Court of Appeals holding that regular job attendance is an essential job requirement, Judge Ellis focused on the EEOC’s characterization of the policy. 

“[T]he EEOC’s Section 12112(b)(6) claim is not premised on attendance but rather on UPS’s imposition of a 100 percent healed requirement on those seeking to return to work,” she wrote. “Framed as such, the 12-month policy can be considered a qualification standard – a medical requirement that an individual must meet in order to maintain his or her position with UPS – and not an essential job function.”

Because the EEOC’s requirement “falls within the definition of a ‘qualification standard,’ and the EEOC has alleged that the policy applies to qualified individuals with disabilities, the EEOC may proceed on its Section 12112(b)(6) claim,” the court concluded.

To read the opinion in EEOC v. United Parcel Service, click here.