Dive Brief:

• UPS has agreed to pay $1.7 million to resolve a lawsuit first filed in 2009 alleging that its 12-month leave policy violates the Americans with Disabilities Act (ADA) (Equal Employment Opportunity Commission v. United Parcel Service, Inc., No. 1:09-cv-05291 (N.D. Ill.)).
• The policy allowed workers to take a year of unpaid medical leave without fear of losing their jobs. Upon exhausting that leave, however, they were fired.
• The U.S. Equal Employment Opportunity Commission (EEOC) said that the policy runs afoul of the ADA’s requirement that employers provide reasonable accommodations to workers with disabilities.

Dive Insight:

“No-fault” attendance policies became popular with employers several years ago. And on its face, the UPS leave policy may sound generous. After all, the Family and Medical Leave Act (FMLA) only grants workers 12 weeks of unpaid medical leave (and even then, only under certain circumstances).

But the ADA requires that employers provide reasonable accommodations that allow workers with disabilities to perform their jobs, and that can include exemptions to workplace policies.

So while having a “no fault” attendance policy isn’t necessarily a per se violation of the ADA, EEOC says the lack of communication around it can be. For example, many employers rely on form letters to warn workers that they will soon exhaust their leave and that if they don’t return to work, they’ll face termination. EEOC suggests that employers add a note to those letters that invites employees with disabilities to notify the company if they require an accommodation like light duty, a chair at their workstation or additional leave, for example. Then, the employer can begin the interactive process of determining whether the request is reasonable, the commission wrote in its 2016 guidance, Employer-Provided Leave and the Americans with Disabilities Act.

In the UPS case, EEOC alleged that the company’s employee could have returned to work after two more weeks’ leave — a request that EEOC argued would have been reasonable for a company like UPS.

The non-monetary terms of the settlement also provide some guidance. Not only will the UPS clarify that it will grant exceptions to its leave policy, but its HR department also will now consult with legal counsel before terminating any employees for exhausting their leave.

It’s possible the EEOC may not pursue this issue quite as aggressively in the future, but, looking to the settlement terms to devise your own best practices may be relatively achievable, especially when the alternative is eight years in court.