HR Management & Compliance

UPS Attendance Policy Under Fire for Second Time

An automatic termination policy for employees taking more than 12 months of consecutive leave limits the ability of qualified individuals with a disability to return to work and may act as a “qualification standard” that violates the Americans with Disabilities Act, a federal district court has ruled.

The ruling by the U.S. District Court for the Northern District of Illinois, Eastern Division denied a motion by United Parcel Service, Inc., to dismiss ADA claims filed by the U.S. Equal Employment Opportunity Commission on behalf of former UPS employee Trudi Momsen and a class of unidentified, disabled employees.

EEOC alleges that UPS, the world’s largest package delivery company, violated federal law by rejecting an extension of medical leave as a reasonable accommodation for its employees with disabilities. The federal court decision advances the case through the discovery phase. (EEOC v. UPS, Inc., No. 09-C-5291 (N. Dist. Ill. Feb. 11, 2014)).

Facts of the Case

Trudi Momsen, an administrative assistant at UPS for more than 16 years, took a 12-month leave of absence from work when she began experiencing symptoms of what was later diagnosed as multiple sclerosis. She returned to work for a few weeks, but soon thereafter needed additional time off after experiencing what she believed to be negative side effects of her medication.

Although Momsen says she could have returned to work after an additional two-week leave of absence, UPS fired her for exceeding its 12-month leave policy. Following an administrative investigation, EEOC determined that UPS failed to accommodate Momsen’s disability in violation of ADA.

EEOC seeks back pay and compensatory and punitive damages for Momsen and a class of disabled employees whom, EEOC charges, UPS similarly refused to accommodate, as well as an order barring future discrimination and other relief.

UPS reportedly has maintained a 12-month leave policy since 2002. The automatic termination policy states that employees will be “administratively separated from employment” after 12 months of leave.

EEOC alleges that UPS refused to engage in the ADA’s interactive process to determine whether an employee could remain at work if given an accommodation or return to work with a minimal leave extension.

“Policies like this one at UPS, which set arbitrary deadlines for returning to work after medical treatment, unfairly keep disabled employees from working,” EEOC Chicago regional attorney John Hendrickson said in a prepared statement. “Sometimes a simple conversation with the employee about what might be needed to return to work is all that is necessary to keep valued employees in their jobs.”

UPS contends that Momsen “never asked for an accommodation.” In a statement made at the time of the lawsuit’s announcement, a company spokesperson said that Momsen, “in essence, abandoned her position without ever providing management any medical documentation justifying additional time off.”

100-percent-healed Policies Under Fire

UPS’ attendance policy also came under fire in 2009 when it successfully defended a nationwide class of more than 36,000 employees who claimed disability discrimination. The 3rd U.S. Circuit Court of Appeals reversed a court ruling by the U.S. District Court for the Western District of Pennsylvania because it said the lower court had never determined whether the employees satisfied a main criterion for pursuing an ADA claim: that each person involved must be a qualified individual with a disability. (See Hohider v. UPS, 2009 WL 2183267 (3rd Cir., July 23, 2009).)

The Hohider appeals court did not address whether a 100-percent-healed policy would violate ADA. However, the 7th Circuit has held that, when applied to a qualified individual with a disability, a 100-percent-healed policy is per se impermissible because it “prevents individualized assessment” and thus “necessarily operates to exclude disabled people that are qualified to work.” See Steffen v. Donahoe, 680 F.3d 738, 748 (7th Cir. 2012).

Many employers actually have a 100-percent-healed policy in their employee handbook. And some serious ramifications would result if  is declared non-compliant with ADA regulations.  Some of those same employers, however, might allow for extended leave until an employee is permitted to return (in some cases, for safety reasons).  It is complex in the sense that the policy could be looked at as a protection of employees. But the court didn’t see it that way.

Court Weighs in

Illinois district judge Sara L. Ellis rejected UPS’ contention that its policy of discharging employees who can’t return to work after 12 months of leave is an “attendance policy” permissible under ADA because regular attendance is an essential job function.

Although, as UPS pointed out, the 7th Circuit has found regular job attendance to be an essential job requirement, see EEOC v. Yellow Freight Sys., Inc., 253 F.3d 943, 948–49 (7th Cir. 2001), the district court determined that EEOC’s claim is not premised on attendance but rather on UPS’ imposition of a 100-percent-healed requirement on those seeking to return to work.

“Framed as such, the 12-month policy can be considered a qualification standard —a medical requirement that an individual must meet in order to maintain his or her position with UPS —and not an essential job function,” the judge wrote.

Employer Takeaway

ADA prohibits an employer from using qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability, unless the standard, test or other selection criterion is shown to be job-related and is consistent with business necessity. See 42 U.S.C. §12112(b)(6).

Qualification standards, as defined by EEOC regulations, are “the personal and professional attributes including the skill, experience, education, physical, medical, safety and other requirements established by a covered entity as requirements which an individual must meet in order to be eligible for the position held or desired.” See 29 C.F.R. §1630.2(q).

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