By Christine Costantino

Sometimes all you need is a fresh start…or two.  In its third attempt at filing a complaint challenging an inflexible 12-month leave limitation policy, the EEOC injected new life into an ongoing battle against maximum or “no-fault” leave policies by classifying them as impermissible “qualification standards” in violation of the ADA.

Last month, the Chicago-based U.S. District Court for the Northern District of Illinois finally permitted the EEOC to proceed with its claims against UPS brought on behalf of an unidentified class of qualified individuals with a disability under the ADA.  Originally filed in 2009, EEOC v. United Parcel Service, Inc., Case No. 09-cv-05291, deals with claims on behalf of two identified individuals, as well as the unidentified class, who had been administratively separated from their employment with UPS pursuant to UPS’s 12-month maximum leave policy.  Both identified individuals had been on extended disability-related leave.

While denying a motion to dismiss as to the two identified individuals, the Court had previously rejected two complaints filed by the EEOC on behalf of the unidentified class.  The Court explained in its opinions dismissing these claims that the nature of pleading discrimination based on a disability under the ADA required more specificity than discrimination based on other protected classes under Title VII.  In particular, a failure to accommodate claim may require information regarding whether each employee would be considered “qualified” under the ADA.

Under this reasoning, bringing broad actions to challenge a company’s policies and practices impacting those with disabilities would be increasingly difficult.  That, coupled with several circuits’ (including the Seventh Circuit where the district court sits) affirmation that attendance is an essential function of most jobs, would hinder the EEOC’s continuing efforts to attack employer’s leave limitations policies.

However, the EEOC advanced a new theory in its third complaint, by asserting that the maximum leave policy operated as a “100% healed” requirement for those wanting to return to work and was consequently a qualification standard that improperly screened out individuals with disabilities.  In accepting this theory, the Court explicitly rejected UPS’s defense that such leave policy was permissible under prevailing precedent that attendance can be an essential job function, finding them to be discrete issues.

What does this mean?

The Court’s decision permitting these claims to proceed under the qualification standard theory expands the EEOC’s toolbox for bringing broad-based actions.  Although the ultimate viability of this theory is unknown, this fresh perspective on leave under the ADA will likely further encourage the EEOC’s pursuit of similar claims.

How does this impact employers?

This decision is a good reminder for employers to examine their leave policies, including policies with maximum leave periods and enforcement of those policies.  Although employers need not eliminate maximum leave limitation policies entirely, they must remember that modification of policies – even those providing 12 months of leave – is a potential reasonable accommodation under the ADA.  Consequently, it is important to make an individualized assessment when an employee makes a disability-related request that is otherwise contrary to your leave policy.

For additional information, please contact the author, a member of the Absence Management and Accommodations Team, or your Seyfarth attorney.