Your Leave Is Up – Sorry but You’re Fired
Many employers have medical leave policies. Most of those policies allow leave for a maximum duration often three to six months or even up to a year. The FMLA, of course, guarantees job protection for 12 weeks. But what is an employer to do if an employee has used up their FMLA leave (or is otherwise not eligible for FMLA), and they reach the maximum medical leave under the employer’s policy?
A Costly Mistake
Some employers apply their medical leave policies to the letter and terminate an employee who was not able to return at the end of the maximum leave time period. That practice got a large bank in some large trouble with the EEOC, and it cost the bank $400,000 to settle a class action. On top of that the bank was required to establish a detailed procedure to make sure that at the end of a medical leave employees were able to request an accommodation by extending the leave.
Consent Decree Gives Employers Something to Think About
The terms of the court approved Consent Decree highlight the EEOC’s focus on medical leave policies that are applied literally without consideration of possible reasonable accommodation for the employee who has used up all the leave available under the policy.
Besides having to pay 14 employees a total of $400,000, provide training, maintain detailed records of medical leaves and post a notice of the Decree, the bank had to modify its medical leave practices. Here is what the bank was required to do, and it offers some guidance for any employer to make sure its practices won’t become the focus of an EEOC class action complaint:
- Identify an “Accommodation Consultant” whose job it is to comply with the ADA and be the go-to person for employees on medical leave who want an accommodation.
- The employer may not terminate any employee on leave without the approval of the Accommodation Consultant.
- Before the end of any medical leave all physician releases and other communications must be provided to the Accommodation Consultant for review.
- Employees on medical leave must be informed of: 1) how long their position will be held open; 2) the right to request an accommodation of holding the position open longer than the policy allows; 3) the name of the Accommodation Consultant or staff member to contact for an accommodation.
- The employer may not permanently fill a position before an accommodation request has been made and decided.
- No later than 20 days before the end of any medical leave of more than 30 days the employer must inform the employee of the right to a reasonable accommodation that could include: 1) modified duty; 2) part-time work; 3) intermittent leave; 4) reassignment to a different position; 5) additional job protected leave; or 6) assistive devices.
- For employees who request an accommodation but whose jobs have been filled, the employer must consider transfer to an open position for which the employee is qualified.
This settlement underscores the need for employers to always be aware that disabled employees are entitled to a reasonable accommodation – if requested and so long as it does not cause an undue hardship on the employer. The way to do that is through the good faith interactive process that we have talked about in the past. While the terms of the consent decree apply only to this bank and employees who are “disabled” under the ADA definition, the process is worth considering.
Reference: EEOC v. Harris Bank, (E.D. Ill., Case No: 1:12cv07793 May 2, 2013)
Please contact Steve Lyman at slyman@wp.hallrender.com or your regular Hall Render attorney if you have any questions.
