Lessons From The Jewel-Osco / EEOC Settlement
On January 5, the EEOC announced a $3.2 million settlement in a lawsuit against Jewel-Osco parent company Supervalu Inc., alleging that Jewel-Osco fired disabled employees at the end of medical leaves rather than returning them to work with reasonable accommodations. (Details are available in the Chicago Sun Times, and the EEOC has issued its own press release.) The settlement does not constitute an admission of liability by the company, and as reported by the Sun Times Supervalu denied any wrongdoing. Moreover, the Company issued its own statement, affirmatively expressing its commitment to hire and accommodate individuals with disabilities. According to Supervalu, it chose to settle the case to avoid litigation costs and put the matter behind the Company so that it could focus on current business initiatives.
While this lawsuit was brought under the Americans With Disabilities Act rather than the FMLA, employees frequently attempt to return from FMLA leave with medical restrictions, forcing employers to decide whether they are capable of doing the job. Whether or not there was merit to the EEOC's claims, this case is a prime illustration of how important it is for employers to actively consider reasonable accommodations for employees returning with medical restrictions, and to document that they have done so.
The consent decree governing the settlement requires Jewel-Osco to take a variety of remedial measures in addition to the monetary settlement. While some of these measures, such as mandatory compliance reporting to the EEOC, will no doubt be burdensome, some aspects of the consent decree can be seen as useful "best practices" for employers who wish to avoid seeing their names in a future EEOC press release.
For example, the decree requires Jewel-Osco to engage a consultant to review and recommend changes to its current job descriptions to ensure that the descriptions accurately state the physical requirements of the job. While a consultant may not be necessary, accurate and up-to-date job descriptions are a crucial tool for employers, both in making decisions about whether and how to accommodate an employee's medical restrictions and in defending such decisions in the event of litigation.
The decree also requires Jewel-Osco to obtain recommendations from the consultant regarding possible accommodations to common work restrictions in various positions within the store. Particularly for larger employers, working with a qualified expert in advance to determine whether and how common restrictions can be accommodated can be extremely helpful both in ensuring that employees are accommodated when required and in defending ADA claims from employees who could not be accommodated.
Under the decree, Jewel-Osco is also required to revise its communications with employees who are attempting to return from a leave of absence to "assure them that they need not be 100% healed in order to be considered for a return to work ...." Although the EEOC's preferred wording for such notices may not be optimal from the employer perspective, employers should be careful to avoid the use of terms such as "full duty" or "without restriction" in reference to an employee's return to work, as these are red-flags for the EEOC and plaintiffs' lawyers. Rather, employers should - echoing the requirements of the ADA - advise employees that they will be expected to perform the full range of essential job functions for their position, with or without a reasonable accommodations. Additionally, it is often advisable to invite employees to identify any accommodations they may need to return to work, both because doing so may help identify a workable accommodation, and because an employee who fails to request any accommodation when invited to do so will have a far more difficult time asserting a claim under the ADA.
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