Michael S. Powers

Michael S. Powers Associate

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EEOC Settles Disability Discrimination Lawsuit Over “100% Return to Work” Leave Policy

The Equal Employment Opportunity Commission (“EEOC”) recently filed a lawsuit against American Airlines and Envoy Air, its largest regional affiliate, alleging that the airlines had engaged in discrimination in violation of the Americans with Disabilities Act (“ADA”) they illegally prohibited disabled employees from returning to work or transferring into other positions.  The suit originally arose from charges of discrimination filed by 12 current and former employees alleging that American had refused to transfer them into other available positions for which they were qualified, or to offer accommodations such as intermittent leave where it might have been appropriate.  American settled the suit the same day it was filed for $9.8 million and the parties entered into a consent judgment.

The issue at the heart of the lawsuit involved the airlines’ leave policy.  The policy in question likely seemed reasonable on the surface, but, as is so often the case with employment policies, the devil was in the details.  Many employers have language or terms included in their leave policies which dictate how and when employees can return from injury and illness leave.  These policies help insure that an employee returns to work only when, and if, he or she is able to safely perform the essential functions of the position.  These policies also provide a framework through which to approach the reasonable accommodation dialogue required by the ADA.  Such return-to-work policies may be found to violate the law, however, if they are deemed so restrictive as to prevent employees from returning to work when they would have been able to do so with a reasonable accommodation.  That is exactly the situation in which American found itself.

American’s leave policy had a “100 percent return to work” feature that the plaintiffs alleged was overly restrictive and therefore illegal.  The policy required an employee who was on leave to obtain certification from a physician that he or she was able to return to work without any restrictions.  An employee who failed to do so could not return to work from leave.  If the employee exhausted his or her available leave, then he or she could be terminated.

The logic behind these policies is to insure that employees who are injured are actually able to safely return to work.  By implementing such a policy, employers seek to reduce future injuries by making sure an employee is actually fit to return.  The problem is that by prohibiting an employee from returning unless he or she can do so without any restrictions, such a policy completely ignores the requirement to reasonably accommodate a qualifying employee with a disability.  In many cases, an employee may be able to return from leave, but may require some reasonable accommodation in order to perform the essential functions of his or her position.  The ADA requires an employer make reasonable accommodations for an otherwise-qualified employee with a disability.  These accommodations can come in many forms, including in the form of transfer to another available positon for which the employee is qualified.  Therefore, a policy that prohibits an employee from returning from a leave with any restrictions is likely noncompliant with the ADA’s requirement to make reasonable accommodations.

American found itself in a difficult position in the instant case because the plain language of its policy appeared to be in violation of the ADA.  For its part, American claimed that the policy already had been changed some time ago.  A statement from American explained that the policy was “well intentioned,” but that the airlines could “do more to foster the equitable and safe environment [they] want.”

An employer who finds itself in such a position has little room to argue that the policy is compliant with the ADA.  In many cases no actual harm may have been done by such a policy and it is simply possible to make changes to bring the policy into compliance. In this instance, however, charges had been filed and the EEOC had made the decision to pursue the matter on behalf of the employees.  The EEOC is more likely to choose to pursue such issues where the employer is a large company with a national presence, and where news of its doing so will make bigger headlines and potentially affect greater change.  The EEOC recently reached a $2 million settlement with UPS over a similar issue.  In American’s case, in addition to the monetary settlement, the airlines agreed to conduct greater training for supervisors and to implement ADA coordinators to review company policies and individual employee’s situational requirements to ensure greater compliance.

Employers would be wise to note the EEOC’s stance on employers’ 100% return to work policies and consider not implementing or removing policies that require an employee to have no restrictions before returning to work after a leave. As with most ADA lawsuits, the focus most often will be on whether the employer provided the returning employee with a reasonable accommodation so that he or she could perform the essential functions of the job. Simply telling an employee that he or she must be capable of performing 100% of their job duties and not engaging in the ADA’s required interactive process most likely will place the employer in a position that cannot be defended easily before the EEOC or in a lawsuit.

The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters, including policies and procedures, regulatory compliance, and related litigation, for almost sixty years, and are available to discuss these issues and others.  As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.

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