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Employment Blog

Is a Policy of 12 Months and You're Out, Out?

Authored by Kevin J.T. Terry
Posted on February 28, 2014
Filed under Employment

The United Parcel Service, Inc.'s (UPS) motion to dismiss a claim filed by the Equal Employment Opportunity Commission (EEOC) challenging the company's leave policy was denied last week by the U.S. District Court in Illinois. EEOC v. United Parcel Service, Inc., N.D. Ill, No. 09C5291, February 11, 2014.

For over a decade UPS has maintained a 12-month-and-out policy. Employees are separated from employment after 12-months of leave, unless they can return to work at that time without any restrictions. UPS supports this policy by claiming the ability to regularly attend work and not miss multiple months on the job is an "essential function" of the job. The Seventh Circuit has previously determined that regular attendance can be in fact an essential job function.

The ADA, however, requires that an employer refrain from using "qualification standards" that screen out disabled individuals unless the standard is "job-related for the position in question and consistent with business necessity." The EEOC in the UPS case did not take issue with the attendance issue but rather the language that required "100% healing." Because of this language, the motion filed by UPS was denied and the issues went to a jury.

Employers have been aware for years that a blanket 100% return to work policy is an issue. This case is a reminder. The focus on returning an individual to work after a medical leave needs to be on the interactive process and reasonable accommodations. A blanket policy based only on the number of months an employee has been on leave is not enough, at least in this Court's view, to free an employer from EEOC scrutiny.