This week the EEOC held a hearing on whether new or updated regulations and enforcement guidance was needed with respect to providing leave of absence as a reasonable accommodation for disabled employees. The EEOC has recently been very aggressive in bringing suit against employers that use maximum leave policies or "inflexible" policies that provide no exception for reasonable accommodation. For example:
- EEOC v United Road Towing Inc., No. 10-cv-06259 (N.D. Ill.) (failure to provide reasonable accommodations by terminating disabled employees after exhausting 12 weeks of FMLA leave and refusing to re-hire employees after they were released to return to work);
- EEOC v. IPC Print Services, No. 10-886 (W.D. Mich.) (failure to provide reasonable accommodations by terminating an employee rather than granting him a part-time schedule because he had exceeded the maximum hours of leave under company policy);
- EEOC v. Princeton HealthCare System, No. 10-4216 (D.N.J.) (failure to provide reasonable accommodations by terminating employees after either seven days or 12 weeks, depending on eligibility for FMLA);
- EEOC v. UPS, Case No. 09-5291 (N.D. Ill) (failure to provide reasonable accommodations by terminating employee for exceeding 12-month leave policy);
- EEOC v. Denny’s, Inc., No. 06-2527 (D. Md.) (failure to provide reasonable accommodations by terminating a nationwide class of disabled employees at the end of the company’s pre-determined maximum leave limit).
And of course, the EEOC reached a $6.2M settlement with Sears over its use of a maximum leave policy. (See here). I predicted the demise of "neutral absence control" or "maximum duration leave policies" over a year ago. (Post here). Moreover, I discussed how an employer’s inability to rely on such policies will adversely affect an employer’s ability to handle leaves of absence for employees needing leave for non-work-related injuries, workers’ compensation leaves of absence and leaves caused by pregnancy.
Hopefully the EEOC’s proposed regulations on the use of leave of absence as a reasonable accommodation, optimistically (but probably unrealistically) slated for Fall 2011 publication, will provide employers with needed guidance that will preserve the ability for employer’s to continue to use neutral or maximum duration leave of absence policies.
What others are saying about this week’s hearing:
EEOC and employers differ on the use of neutral maximum leave of absence policies
EEOC Meeting and Forthcoming Written Guidance Address Leave Policies and Reasonable Accommodations Under the ADA