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EEOC Continues Effort to Contest Return From Leave of Absence Terminations.

The U.S. Equal Employment Opportunity Commission issued a bulletin that an Oakland-based, non-profit regional medical center has agreed to pay $300,000 to a former employee with breast cancer and to implement revised policies and training to settle a federal disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC).

This development represents the EEOC’s latest efforts to combat mandatory termination policies following the expiration of leaves of absence.  Employers' must modify their policies by eliminating the mandatory termination language and substituting a policy that includes an interactive process to determine whether the employee can return from the leave of absence, with or without a reasonable accommodation that in some circumstances may include an extension of the leave of absence.

According to the EEOC's suit, the hospital fired the employee because she needed medical leave exceeding the hospital's six-month policy.  The office associate had worked in the endocrinology department since March 2009 and was diagnosed with breast cancer in December 2011.  Her initial request for two months' leave to have a double mastectomy was granted.  However, when her treatment plan required additional leave, the employee was fired.  On July 10, 2012, during a meeting to discuss her request for extended leave, managers improperly chose to rely on their own assessment that she looked "fragile" and unlikely to return to work, despite her doctor's note stating that she could resume work in September 2012.

Terminating a qualified employee because of a disability violates the Americans with Disabilities Act (ADA).  The ADA requires an employer to provide reasonable accommodation to an employee or job applicant with a disability, unless doing so would impose an undue hardship for the employer.  Requesting an extended medical leave can be a reasonable accommodation.  After attempting to resolve the case through pre-litigation conciliation efforts, the EEOC filed the lawsuit.  According to the consent decree, the hospital will pay the terminated employee $300,000 and will post its revised policy regarding accommodation of employees with disabilities on its employee intranet site.  The hospital will also provide anti-discrimination training, make periodic reports to the EEOC, and post a notice regarding the decree for three years.

To underscore the critical issue here: Employers' must modify their policies by eliminating the mandatory termination language and substituting a policy that includes an interactive process to determine whether the employee can return from the leave of absence, with or without a reasonable accommodation that in some circumstances may include an extension of the leave of absence.

Johnson & Bell, Ltd. has worked with employers in the past to modify “return from leave” policies, including obtaining EEOC approval of such policies.

Questions about employment issues? Please contact Joseph F. Spitzzeri (spittzerij@jbltd.com).