Several years ago, at its periodic Chicago Bar Association seminars, the Chicago office of the Equal Employment Opportunity Commission (“EEOC”) began expressing its opinion that “inflexible leave policies” violated the reasonable accommodations provisions of the Americans with Disabilities Act. The EEOC defines leave policies as inflexible when they spell out a maximum amount of medical leave and dictate that an employee will be discharged, terminated or “administratively separated” once he or she exhausts that amount of leave.
In that spirit, the EEOC embarked on a cross-country mission to sue employers with maximum medical leave policies, whether such policies limited medical leave to the 12 weeks mandated by the Family Medical Leave Act or to more generous maximums of six months or more. Many employers chose to settle rather than fight: Sears paid $6.2 million; Interstate Distributor paid $4.85 million and Supervalu/Jewel Foods paid $3.2 million.
One employer faced with a lawsuit by an individual rather than the EEOC chose to litigate. In Hwang v. Kansas State University, (10th Cir. May 29, 2014), a university professor requested an extension of her six-month leave of absence from her employer. The university declined, citing its six-month maximum leave policy. A district court dismissed Hwang’s Rehabilitation Act case, and the 10th Circuit affirmed, stating that “reasonable accommodations . . . are all about enabling employees to work, not to not work.” The court suggested that “unreasonably short sick leave periods” might be open to attack, but declined to elaborate on whether the 12 weeks mandated by FMLA fell into this category.
The EEOC apparently remains undaunted by Hwang. Since the decision, it sued Dialysis Clinic, Inc. for terminating an employee who had exhausted her maximum four months of medical leave and requested two additional months of leave. More recently, it sued disability service support company, ValleyLife, for its policy compelling the discharge of employees who had exhausted their leave under the FMLA. It is clear that the EEOC will continue to press the issue of inflexible leave policies, even if they are more generous than those provided under the FMLA. Employers should give serious consideration to revamping maximum leave policies that mandate automatic discharge of employees who exceed their 12 weeks under FMLA.
Carole A. Corns is a very experienced labor and employment attorney who has researched, written about, litigated and arbitrated a wide variety of employment and labor issues and cases. She is particularly adept in interpreting the Family and Medical Leave Act, having represented the Chicago Transit Authority in two FMLA class actions, as well as the Americans with Disabilities Act and Title VII. In addition to her numerous experiences in federal court, Carole has forayed into the Cook County Circuit court, the Illinois Human Rights Commission, and the Chicago Human Rights Commission. Carole is a graduate of the University of Michigan Law School and served as a contributing editor of the Michigan Journal of Law Reform. Carole is a LegalBee attorney. LegalBee is a network or "hive" of freelance attorneys that provide temporary legal services for overworked attorneys.