This Wisdom of the Crowd, compiled from responses posted on the Employment & Labor Law eGroup,* addresses an issue regarding automatic termination after a certain period of leave.
*(Permission was received from the ACC members quoted below prior to publishing their eGroup comments in this Wisdom of the Crowd resource.)
Question:
We are in the process of implementing language into our employee handbook to address automatic termination after a certain period of leave, i.e., if an employee takes continuous leave and does not return to employment within one year they will be automatically terminated. I'm curious as to what periods others use (90 days, six months, nine months, etc.) and why.
Wisdom of the Crowd:
Response #1
You need to review the ADA and the EEOC's enforcement actions. Under the ADA, you can no longer have policies that result in automatic termination of employment after a certain time period of leave for a medical condition or what may be considered a disability under the ADA. You have to consider each case on an individualized basis and determine if additional time off can be provide[d] as a reasonable accommodation. There is much more to say on this topic, but this gets to the point of your inquiry. See excerpt below:
Feb. 12 --A federal judge in Chicago Feb. 11 ruled that the Equal Employment Opportunity Commission can pursue its claim challenging United Parcel Service Inc.'s policy of discharging employees who can't return to work after 12 months of leave, finding that the rule may be an unlawful qualification standard under the Americans with Disabilities Act (EEOC v. UPS, Inc., 2014 BL 35887, N.D. Ill., No. 1:09-cv-05291, 2/11/14).
Judge Sara L. Ellis of the U.S. District Court for the Northern District of Illinois rejected UPS's contention that the requirement is an attendance policy permissible under the ADA because regular attendance is an essential job function for its workforce.
The EEOC didn't plead its claim under Section 102(b)(6) of the ADA--42 U.S.C. [§] 12112(b)(6)--in terms of essential job functions, but rather contended that UPS's return-to-work rule is a "100-percent healed policy" and thus an impermissible selection criteria or qualification standard because it screens out or tends to screen out individuals with disabilities, Ellis said.
"Framed as such, the twelve-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," the judge wrote.1
Response #2
Absolutely don't do it. I wrote a white paper on this topic a little over a year ago and am happy to share. […] The paper summarizes key cases and the EEOC's position on the topic of leave of absence as an ADA accommodation - including a chart of employers who entered into consent decrees with the EEOC in recent years to pay damages, train employees and supervisors, and other terms, because of various types of automatic termination provisions.
In April 2012 the EEOC was planning to issue a new guidance on this topic but pulled it from publication at the last minute for internal reasons. Now that the EEOC commission is fully staffed, there is some expectation that the anticipated guidance will be revived and issued in the not-too-distant future.2
Response #3
I recommend that you craft a policy that says that after an employee has been absent from work for more than X months, then HR will contact the employee to conduct an individualized assessment to determine if they are able to return to work with or without a reasonable accommodation as required by applicable law. As long as you conduct the individualized assessment, then you are complying with the law. The EEOC doesn't like the blanket policies that "automatically" terminate someone. If you conduct the assessment after 6 months and the employee has no path to return to work, then I believe you could terminate them under the ADA, bec[a]use unlimited leaves of absence are still not "reasonable" accommodations and attend[a]nce is still an "essential function" of most jobs. You could create form letters (that are then individually tailored) to send to people after they are out a certain number of months asking for basic information about their status and ability to return to work.3
Response #4
[…]We have a general "maximum" of 6 months for LOAs, and at the end of the 6 months, we speak to the employee if he/she is unable to return to work. Depending on whether the employee needs an extension of the LOA and how much time is needed (and is supported by the appropriate medical documentation), we generally accommodate that. It's a fact-specific determination; the EEOC does not look kindly on hard and fast end dates. Employers, however, generally do not have to accommodate an indefinite LOA.4
Response #5
I agree wholeheartedly with the admonition against blanket policies. However, one "nugget" that I picked up at an Annual Meeting was that some companies require employees to resign in order to be eligible to apply for (or was it actually receive?) LTD benefits. So, that seems to be a potential work-around that could give employers definitive dates for which to remove employees from their rolls. Evidently, that the resignation is couched in terms of "eligibility" for the LTD is sufficient to take it out of the hands of the EEOC.5
Response #6
I'm not an employment law expert, but one rule of thumb I've picked up on over the years is that any policy with the word "automatic", especially if it pertains to disability, FMLA, or the EEOC, is something you probably want to avoid.6
Response #7
[…]In addition to potential violations of ADA for refusal to engage in interactive process of discussing an extension of the leave as a reasonable accommodation, you also have to take into account any State or local law which may be more generous (i.e. NYC Human Rights Law), and any requirements to accommodate longer military leaves under USERRA. Having said that, I recently went to an ADA presentation given by Ogletree Deakins, and they provided [an] Administrative Termination Policy, which they say had been reviewed and accepted by the EEOC. […]7
Response #8
Be careful. Such automatic termination rules are severely frowned upon by the EEOC and have been found by some courts to violate the Americans with Disabilities Act.8
5Response from: M. Yusuf Mohamed, Associate Counsel, Wayne Farms LLC (March 18, 2014).
6Response from: Michael P. Cremata, Corporate Counsel, ClosingCorp Inc. (March 18, 2014).
7Response from: Corinne P. Kevorkian, SVP, Administration and General Counsel, Whitsons Culinary Group (March 17, 2014).
8Response from: Anonymous (March 14, 2014).