Lessons from the EEOC’s Lawsuit Regarding UPS’ Automatic Termination Policy

UPS recently settled – for $2 million – a lawsuit brought by the Equal Employment Opportunity Commission regarding its policy that automatically terminated employees who had been on medical leave for 12 months. This case reminds employers to avoid implementation of inflexible leave policies, and the parties’ consent decree further offers guidance to employers on the reasonable accommodations process. For more, click here.

The EEOC asserts that policies automatically terminating an employee after a certain period of medical leave (e.g. at the end of Family and Medical Leave, after a year on leave, etc.) violate the Americans with Disabilities Act. The EEOC states that, before terminating the employee, the employer must engage in the interactive process under the ADA to determine if there is any reasonable accommodation that can be provided to the employee – including perhaps some additional period of leave – to enable them to perform the essential functions of the job. Only if no reasonable accommodation is available may the employer then terminate the employee.

Thus, it is important for employers, prior to terminating an employee on an extended medical leave, to engage in – and to document – the reasonable accommodations process. With regard to the issue of documentation, the consent decree provides an “Accommodations Checklist” that has been approved by the EEOC. Although you may view the entire Accommodations Checklist here, we summarize the key provisions as follows:

• One section of the form, to be completed by the employee, asks for the following:
  • The employee’s medical restrictions affecting the ability to perform the essential functions of the current job
  • Accommodations the employee believes would enable him to perform the essential functions of the current job
  • Other jobs at the company for which the employee believes he can perform the essential functions
  • Accommodations the employee may need to perform those other jobs
  • Information about the employee’s skills, prior work experience, training and education, which could help the company assess potential accommodations
  • How far the employee would be willing to commute for a reassignment position
  • If the employee is full-time, whether he would be willing to accept a part-time position if no other full-time reassignment or transfer positions are available
  • Limitations on the employee’s ability to work particular hours or shifts
  • Whether the employee would be willing to accept a job at another of the company’s facilities
• Another section of the form is to be completed by the employer, and seeks the following:
  • A listing, in chart form, of each accommodation proposed by the employee and by the company, and whether the means exist for the accommodation
  • A specific section on transfer or reassignment as an accommodation, asking for the following information, again in chart form:
    • If there are employee- or employer-identified current openings or openings that will occur within a reasonable period of time (providing 4 weeks as an example of a reasonable period)
    • Whether the employee has the requisite education, skills and experience for each opening
    • Whether the employee is capable of performing the essential functions of each opening, with or without reasonable accommodations, with an explanation of any function the employee cannot perform and why the employee cannot perform it
    • If the answers to the previous three questions is no, whether there are openings or expected vacancies at other facilities that the employee can perform

This form provides insight into what sort of information the EEOC believes to be a necessary part of the reasonable accommodations discussion. Of course, in addition to this information, the employer is entitled to seek appropriate medical information from the employee’s health care provider regarding the employee’s medical condition, limitations and possible accommodations.