Legal Briefing: 100 Percent Wrong?

By Mark Kobata

May. 8, 2014

Since 2002, UPS Inc. has maintained an inflexible leave policy providing that employees will be “administratively separated from employment” after 12 months of leave, without providing reasonable accommodations for their disabilities. The U.S. Equal Employment Opportunity Commission filed a lawsuit against UPS alleging that the policy violates several sections of the Americans with Disabilities Act.

UPS moved to dismiss the complaint, arguing that an employee’s ability to regularly attend work and not miss multiple months is an essential job function and not a qualification standard, employment test or other selection criteria. In denying the motion to dismiss, the U.S. District Court for the Northern District of Illinois noted that the EEOC’s 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. Because such a requirement falls within the definition of a “qualification standard” prohibited by the ADA, the court allowed the EEOC’s claim to proceed. EEOC v. UPS Inc. N.D. Ill. No. 1:09-cv-05291 (Feb. 11, 2014).

Impact: Policies that require employees to return to work only if they are 100 percent healed may violate the ADA. Rather than adhere to fixed, blanket rules that limit the duration of a leave, the better practice is to fold into such policies a reasonable accommodation effort where each leave extension consider whether additional leaves may lead to the individual’s return to work.

James E. Hall, Mark T. Kobata and Marty Denis are partners in the law firm Barlow, Kobata and Denis, which has offices in Los Angeles and Chicago. To comment, email Follow Workforce on Twitter at @workforcenews.

Mark Kobata and Marty Denis are partners at the law firm Barlow, Kobata and Denis, which has offices in Beverly Hills, California, and Chicago.

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