The Equal Employment Opportunity Commission (EEOC) is suing United Parcel Service (UPS) for having a maximum leave policy that it says acts as a “100-percent-healed policy” and is an unlawful qualification standard under the Americans with Disabilities Act (ADA). EEOC v. UPS, Inc. (N.D. IL 2014).
UPS’s policy sets a 12-month maximum on the amount of leave available to employees. Employees unable to return at the end of that time are terminated. The EEOC initially sued on behalf of one individual who was terminated under this policy, but now, the suit has expanded into a class action.
UPS tried to get the case dismissed arguing that employees who exceed its leave maximum are not qualified individuals with disabilities because they cannot meet the essential job function of regular and reliable attendance. While the court acknowledged that regular attendance can be an essential job function, it said the issue in the case is whether an inflexible 12-month leave policy as a qualification standard for all employees violates the ADA. Interpreting the policy as a qualification standard raises the recurring question under the ADA of whether the individual can perform the essential functions of the job with or without reasonable accommodation, which can include exception to established workplace policy.
The lesson here is that even an arguably generous maximum leave policy does not trump the necessity of an individualized assessment of potential accommodation for a disabled employee.