Bass Berry & Sims Labor Talk

EEOC Continues Aggressive Look at Employer Leave Policies

Posted in Leaves of Absence/FMLA Law and Practice

The EEOC recently announced two multi-million dollar settlements relating to the targeted employers leave of absence practices. In November, the EEOC announced a $4.5m settlement with Interstate Distributor Company, based on claims that the trucking company did not provide reasonable accommodation to scores of employees who were terminated upon exhausting available leave time. The EEOC claimed that the company’s practice of automatically terminating employees after exhausting a set amount of leave without any interactive discussions with the employee, along with an alleged “no restrictions” policy violated the Americans with Disabilities Act (ADA).

Similarly, on December 18 (the same day that the EEOC announced its strategic plan), the EEOC announced a $2m settlement with Dillard’s Inc. based on similar allegations. There, Dillard’s was accused not only of having a practice of terminating employees after a specific period of leave but also of having a practice of seeking specific medical information from an employee seeking sick leave. According to the EEOC, these practices violated the ADA.

Again, as many savvy employers who have read similar posts before, employers should:

  • Eliminate any “automatic termination” language – and eliminate any such practice of automatically terminating – any employee based on the exhaustion a set amount of leave.
    • An employer must conduct a “case-by-case” analysis of the specifics of each employee’s circumstances and must invite the employee into that process as part of an “interactive” discussion
    • Suggested language – “If at the end of the leave period the employee remains unable to return to his/her regular job even with reasonable accommodation, the employee and the employer will discuss what options may be available based on the employee’s circumstances and the employer’s operational needs.”
  • Consider at least one “extension” of another period of leave

Note, however, that granting job-protected leave, under the FMLA or if required in your jurisdiction, under the ADA, that does not mean that the employer must “hold the job open.” Rather, it means that whoever is hired to do the job (if a temporary employee or a contract worker), that person is in that role temporarily for a time, given that someone is on leave.