By Lisa Burden

Dive Brief

  • One of the largest tank truck carriers in the United States violated federal law when it “applied its inflexible leave policy” to fire two employees with disabilities who had exhausted their medical leave, the U.S. Equal Employment Opportunity Commission alleged in a lawsuit.
  • The EEOC says one of the company’s employees, a Florida-based mechanic, needed additional leave beyond the 12 weeks allowed under the Family and Medical Leave Act (FMLA) to take care of a staph infection that required surgery. Another employee, a Houston-based truck driver, required additional leave because of complications from pneumonia. The workers were at home recovering when they received word that they had been fired, according to the federal agency. Both employees required “just a few more weeks of leave,” EEOC said.
  • The alleged conduct violates the Americans with Disabilities Act (ADA), which protects employees from discrimination based on their abilities when they can perform the essential functions of their job with a reasonable accommodation, such as additional medical leave, EEOC said in court papers. The EEOC has asked for back pay, compensatory and punitive damages and injunctive relief.

Dive Insight

Even when leave is provided as required by the FMLA and other applicable laws, the ADA may sometimes require additional leave as a reasonable accommodation. Several employers have recently been taken to court over inflexible leave policies:

  • Earlier this year, employees sued United Airlines, claiming that its 100% healed return-to-work policy violated the ADA.
  • The EEOC sued a Hawaiian cable provider last fall, claiming that it violated the ADA when it denied leave as an accommodation to customer service reps who had exhausted their FMLA leave.
  • A Nevada gaming company paid $3.5 million last year to settle a lawsuit claiming that it violated the ADA by requiring workers with disabilities to be 100% healed before returning to work.

Employers have to modify policies that limit the amount of leave employees can take when a worker needs additional leave as a reasonable accommodation, the EEOC says in one of its publications, Employer-Provided Leave and the Americans with Disabilities Act. An employer is obligated to consider providing unpaid leave to a worker with a disability as a reasonable accommodation if the employee requires it, just as long as it does not create an undue hardship for the employer. This holds even when the worker has exhausted his or her leave, including leave exhausted under a workers’ compensation program, the FMLA or leave provided by similar state and local laws, EEOC said.

However, the agency has noted that reasonable accommodation does not require an employer to provide additional paid leave beyond what it already provides as part of its paid leave policy.