Earlier this month, the U.S. District Court for the Northern District of Illinois denied a motion to dismiss a claim filed by the Equal Employment Opportunity Commission (EEOC) on behalf of a class of individuals challenging United Parcel Service, Inc.’s leave policy. The EEOC claimed that the challenged policy, under which employees will be “administratively separated” from employment after 12 months of medical leave, violates the Americans with Disabilities Act (ADA). EEOC v. United Parcel Service, Inc., No. 09C5291 (February 11, 2014).
The ADA prohibits an employer from “using qualification standards, employment tests or other selection criteria” that screen out disabled individuals, or a class of individuals with disabilities, unless the standard, test, or selection criteria is “job-related for the position in question and consistent with business necessity.” Under the applicable regulations, “qualification standards” include the “personal attributes, including the skill, experience, education, physical, medical, safety and other requirements” established by an employer as requirements that must be met in order to be eligible for a particular position.
Since 2002, UPS has maintained a leave policy according to which individuals who have been on medical leave for 12 months are separated from employment, unless they can return to work at that time without restrictions. The EEOC alleges that such a leave policy operates as a “qualification standard” under the ADA, since it prevents an individualized assessment of whether an impaired individual can return to work with a reasonable accommodation. According to the EEOC, such a standard could operate to exclude disabled individuals from work.
UPS claims, however, that the ability to regularly attend work and not miss multiple months on the job is an “essential job function” and is not a qualified standard that would screen out disabled individuals. Under the ADA, an “essential function” is defined as the “fundamental job duties” of the employment position held or desired by an individual.
The Seventh Circuit Court of Appeals previously has held that regular attendance can be an essential job function. However, in response to UPS’s motion to dismiss, the EEOC argued that the policy violated the ADA because of its “100% healed” requirement, and not because of any attendance issue.
The court agreed and denied the company’s motion to dismiss, allowing the issues to go forward for a decision by a jury. The message to employers is clear: the focus on returning an individual to work after a medical leave should be on the interactive process and on whether a reasonable accommodation may assist in returning that person to his or her job. Focusing instead on a particular time limitation for absence may create unintended liability under the ADA’s “qualification standard” language.