Let me share a story about UPS, although in the end, this story has nothing to do with UPS.
For about the past 10 years, UPS has maintained a policy of terminating any employees who are unable to return to work after 12 months of leave. This policy has disproportionately impacted employees whose medical conditions prevent them from returning to work during this otherwise eminently reasonable time period. UPS has defended the policy, arguing that the 12-month requirement is an “attendance policy” that is permissible under the ADA, since attendance is an essential job function for any employee.
As it has been known to do over the past few years, the EEOC filed suit against UPS and its 12-month automatic termination policy. Interestingly, the EEOC does not frame its case as one of attendance, so as to circumvent UPS’ argument above. Rather, the agency claims that the automatic termination policy amounts to a “100 percent healed” policy. Thus, it is an impermissible qualification standard because it screens out individuals with disabilities in violation of the ADA.
Last week, a federal trial court refused to dismiss EEOC’s ADA claims against UPS, effectively allowing the EEOC to advance its case through the discovery phase.
The one thing that intrigues me about this decision actually has nothing to do with the decision itself, which is a rather dry, four-page analysis (pdf). Rather, the comments of the EEOC’s Regional Attorney John Hendrickson, who is heading up the case for the agency, caught my attention. Employers, take heed of Hendrickson’s comments:
The key to avoiding trouble under the Americans with Disabilities Act, is to be constantly asking the question ‘Can we get this employee back on the job with a reasonable accommodation?’ and certainly not to be asking only ‘Has this employee been on leave long enough for us to get rid of him?’
Before we dismiss Hendrickson’s comments as a bunch of poppycock, can I offer what might be considered an uncomfortable suggestion: rather than pooh-pooh them, why not take Hendrickson’s comments to heart and implement them in your own workplace?
For those of you striving to be an employer of choice, it seems obvious that your focus should be on the former question (How can we figure out how to help this employee return to work?) than the latter (Can we get rid of him now?). Ordering the questions in this fashion, however, doesn’t always come easy. Instead, the employer often simply focuses on whether we have provided enough leave and, after one or two or three extensions of leave, whether it’s acceptable to move forward with the employee’s termination.
This approach is understandable — we have businesses to run, and we need to rely on our employees to make them run. But in doing so, we occasionally lose sight of our obligations under the ADA to engage our employee in the interactive process to determine whether and how we can provide assistance to help them return to work. And where the employee’s continued absence truly is a hardship on our workplace and its operations, we must do a better job articulating why and how the absence negatively impacts our business. Don’t get me wrong: 12 months of leave that is provided for under a policy like UPS’ above is a ton of time. In fact, I think it’s more than generous. But if we engage in the interactive process and articulate undue hardship from day one, we’ll be in a far more defensible position if we decide to terminate employment — whether it’s after one month or twelve months.
Like you, I long for the day when the EEOC actually provides us guidance on leave as a reasonable accommdation. Employers deserve it. And the EEOC has been promising this guidance since at least 2011 when it held hearings on the topic. But in the meantime, if our workplaces are to be the well-oiled machines we strive for, compliance in the reasonable accommodation process is critical to our future success. For those of us not up to par, let’s get our heads in the game.