$6.2mil says 12 may not be enough

Back in August we told you about an EEOC case against UPS for for violating the ADA and terminating an employee after she had used up her 12 month leave entitlement.  See http://negotiumlex.wnj.com/?p=45  Well, the EEOC is at it again.  A couple of days ago the EEOC issued a press release titled:  SEARS, ROEBUCK TO PAY $6.2 MILLION FOR DISABILITY BIAS   You can see the press release here http://www.eeoc.gov/press/9-29-09.html

The EEOC had accused Sears of maintaining an “inflexible workers’ compensation leave exhaustion policy and terminated employees instead of providing them with reasonable accommodations for their disabilities, in violation of the ADA.” 

Also according to the press release, “Regional Attorney John Hendrickson of the EEOC Chicago District Office said pre-trial discovery in the lawsuit revealed that hundreds of other employees who had taken workers’ compensation leave were also terminated by Sears without seriously considering reasonable accommodations to return them to work while they were on leave, or seriously considering whether a brief extension of their leave would make their return possible.”

The settlement, according to the EEOC is the largest settlementof an EEOC ADA case in the statutes’ history.

Now don’t forget, most courts and even the EEOC itself continue to maintain that you do not need to provide “indefinite leave” as a reasonable accommodation.  See the EEOC Fact Sheet on “Applying Performance and Conduct Standards to Employees with Disabilities” (2008) at Q. 21 www.eeoc.gov  So it looks like you don’t have to keep employees on the payroll forever.

But, what is indefinite and what is not?  Beats me, but I’ll try:   If the employee needs an extra 2 weeks the EEOC will presumably say that is not indefinite.  An employee’s doctor saying we don’t know when the employee will be back if ever, probably is.

I know what you are saying, “Nice news but other than scaring the heck out of me what do I take from this?”  Well first thing we should do is take a look at the language the Regional Attorney for the EEOC used.  He said, Sears failed to “seriously consider” reasonable accommodation and failed to “seriously consider” whether a brief extension was possible.  So, it seems to me here is what is really important and what you should take from all of this:  ENGAGE IN THE INTERACTIVE PROCESS WITH EVERY EMPLOYEE WHO REQUESTS AN ACCOMMODATION.  Once you have done that then you need to make an individualized determination as a result of engaging in the interactive process for every request for leave as an accommodation.  Don’t treat every request exactly the same, it can only get you in trouble.