Even the best-intentioned and generous of employers whose leave policies allow for several months or even years of absence are sitting targets for the EEOC’s crusade against so-called “inflexible” leave policies. Over the past decade, a growing number of employers have been forced to defend against EEOC systemic discrimination claims alleging that such maximum leave policies violate the Americans With Disabilities Act (ADA).

Extended leaves of absences present a conundrum for employers. On the one hand, Congress mandates that covered employers provide up to 12 weeks of unpaid leave for eligible employees with serious health conditions under the Family Medical and Leave Act (FMLA). On the other hand, the EEOC takes the enforcement position that maximum leave policies generally violate the ADA even when they provide more time off than the FMLA’s mandated 12 weeks. The EEOC’s view is that any policy that provides employees with “X” months of leave (e.g., 6, 12 or even 18 months) violates the ADA unless the employer proactively considers reasonable accommodations for the employee, which may include a reassignment to another job or additional leave beyond “X” months. In other words, the EEOC puts the onus on the employer to engage, unsolicited, in the interactive accommodation process with each employee who is approaching the maximum “X” months of leave.

As part of its systemic discrimination initiative, the EEOC has devoted tremendous resources to aggressively bringing and litigating such ADA cases on behalf of classes of individuals. Because the EEOC does not have the hurdle of obtaining class certification under Rule 23 as does a private plaintiff, the EEOC simply files its complaint alleging a class of disabled individuals has been aggrieved under an employer’s leave policy (skirting the legal question of whether each potential class member is a qualified individual with a disability under the ADA despite being absent from work for multiple months). Then, it’s off to the races, with the EEOC often engaging in nationwide discovery that essentially turns the class case into potentially hundreds of mini-ADA individual cases. The outcome? Typically a multi-million dollar settlement with a consent decree requiring the employer to revamp its leave process, including incorporating required steps for the employer to explore reasonable accommodations with the employee. For example:

  • In EEOC v. Sears Roebuck, filed in Chicago in 2004, the parties were embattled in a discovery war until 2009 when the case was resolved with a $6.2 million consent decree covering more than 250 claimants who had been separated under Sears’ 12-month leave policy.
  • In EEOC v. Denny’s, filed in Baltimore in 2006, the parties were embroiled in extensive discovery until 2011 when the parties entered into a $1.3 million consent decree covering 33 claimants who were separated pursuant to Denny’s maximum leave policy.
  • In EEOC v. Supervalu, filed in Chicago in 2009, the parties engaged in a fast-tracked discovery battle until 2010 when they entered into a $3.2 million consent decree covering more than 100 claimants who had been separated under Supervalu’s 12-month leave policy.
  • In EEOC v. Verizon, filed in Baltimore in 2011, the EEOC simultaneously filed a $20 million consent decree providing relief to 800 claimants who were disciplined or terminated under Verizon’s no-fault attendance and leave policies.

While the EEOC continues to devote significant resources to litigating systemic cases attacking maximum leave policies, it has failed to deliver on its June 2011 promise to provide much-needed guidance for employers who wrestle with these leave issues on a daily basis. To be sure, employers are left struggling to reconcile the EEOC’s recent enforcement position that maximum leave policies run afoul of the ADA unless the employer sua sponte initiates the interactive accommodation process prior to separating employees with the ADA’s statutory language and the EEOC’s own regulations that put the onus on the employee to initiate the interactive process (unless the employee is unable to do so).

Until the EEOC provides the promised guidance or until courts arm employers with favorable precedence, employers are best advised to remind employees in writing of the employer’s process for requesting a reasonable accommodation at some point during the leave of absence.