Reliance on Leave Cap Policy Resulted in ADA Litigation

EEOC secures $2 million settlement against UPS for not allowing an employee additional time off

Allen Smith, J.D. By Allen Smith, J.D. August 11, 2017
Reliance on Leave Cap Policy Resulted in ADA Litigation

​Inflexible leave caps, even ones as generous as 12 months, violate the Americans with Disabilities Act (ADA) when employers do not consider other accommodations to allow employees to return to work, according to the Equal Employment Opportunity Commission (EEOC). Employers may want to consider shortening leave caps and granting time off beyond the caps for a limited period as an accommodation, a management attorney says. They also may want to increase flexible return-to-work options.

United Parcel Service (UPS) agreed to pay $2 million to settle a claim that it applied its 12-month leave cap inflexibly, the EEOC announced Aug. 8. In addition to monetary relief to be distributed among 88 employees, UPS will update its policies on reasonable accommodation, improve the policies' implementation and conduct training.

Leave Cap Exceeded

The lead plaintiff in the case, Trudi Momsen, was a payroll administrative assistant with multiple sclerosis (MS) who took leave for her disability and returned to work using a cane. When she requested a handcart for assistance in performing her job, her supervisor allegedly laughed.

After Momsen slipped on ice and also experienced a flare-up of her MS, she requested leave for therapeutic treatment. The additional time off exceeded the company's leave cap, and she was fired on March 6, 2007. The EEOC sued under the ADA; after 10 years of litigation, UPS settled.

 "Having a multiple-month leave policy alone does not guarantee compliance with the ADA," said Julianne Bowman, the EEOC's Chicago district director. "Such a policy must also include the flexibility to work with employees with disabilities who may simply require a reasonable accommodation to return to work." Additional leave, though not indefinite leave, may be required as a reasonable accommodation.

[SHRM members-only toolkit: Accommodating Employees' Disabilities]

"In light of the EEOC's position on leave caps and the fact that even a 12-month cap on leave may need to be lengthened as a reasonable accommodation, I would recommend that employers seriously consider instituting a leave cap of substantially less than 12 months," said Jonathan Mook, an attorney with DiMuroGinsberg in Alexandria, Va. "Due to the FMLA [Family and Medical Leave Act], larger employers will need to have a leave cap of at least 12 weeks of medical leave and possibly longer depending on state laws."

He said determining the amount of time to provide beyond the 12 weeks under federal law will depend on the nature of the employer's business and its workforce.

Sometimes leave caps are shorter than 12 months. Whether they are six, nine, 12 or 15 months, employers must individually assess employees that bump against the limit and talk with employees about additional possible reasonable accommodations, noted Tom Luetkemeyer, an attorney with Hinshaw & Culbertson in Chicago.

Leave caps may be in place for various reasons, including administrative cleanup. If someone has not been able to work for a year, that person may not be able to do the job anymore. Leave caps of a year are typical in union contracts and provide that someone can be replaced after a year. But what is OK under the collective bargaining agreement may not be lawful under the ADA, he noted. There must be flexible administration of leave caps, according to the act.

The EEOC hates inflexible rules, he cautioned. "If you have a line-in-the-sand date—12 months of leave and the employee automatically is out—the EEOC will find that problematic 100 percent of the time," he said. The agency considers this an abrogation of the employer's responsibility to engage in the interactive process for identifying any further reasonable accommodation.

While many large employers have leave caps because they want some consistency with the maximum period of leave, most understand they might have to grant additional time as an accommodation, as long as that would not cause an undue hardship, noted David Fram, director of ADA services for the National Employment Law Institute in Golden, Colo.

What's Allowed?

An inflexible leave cap of any duration is risky, said Tom Spiggle of The Spiggle Law Firm in Washington, D.C.

But leave caps are not in and of themselves unlawful, Fram said. Leave cap policies don't even have to mention that a reasonable accommodation may be provided for those who need leave in excess of the leave cap, he said. Employers could choose to put such language in leave cap policies, but all policies need to be flexible under the ADA—and not every policy has to note that it is subject to exceptions in order to reasonably accommodate people with disabilities. So, employers have an excellent argument that it is legal to exclude a reasonable accommodation statement from their leave cap policies, he pointed out.

Leave caps aside, rarely is much more than a year required as a reasonable accommodation, he noted. In one case against Wal-Mart, a court ruled that the company had to hold the job open for at least a year. But in a case involving a small city's police officer, six months of leave was enough because more would have caused an undue hardship, another court ruled.

In the most recent EEOC case, UPS denied it had violated the ADA, saying it settled to avoid continuing litigation. "The settlement recognizes that UPS has a robust ADA accommodation in place, along with one of the more generous and flexible leave policies in corporate America," said Matthew O'Connor, public relations manager for UPS. "Employees with a documented medical basis may take up to 12 months of leave, with most receiving disability or workers' compensation benefits during this leave. UPS also has an ADA accommodation process to assist employees in returning to work."


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