What’s your return-to-work policy for employees on medical leave? If it’s inflexible, you could be painting a target on yourself for an ADA lawsuit.

That’s what has happened to several large employers that have been sued by the EEOC in the past four years. Most recently, the agency wrung a $3.2 million settlement out of grocery chain Supervalu Inc. for its return-to-work practices. And just over a year ago, Sears, Roebuck agreed to a $6.2 million settlement of a similar case.

Automatic termination
Here’s what caused the trouble: The employers had “automatic termination” policies for employees who’d been out on medical leave for a given period – often with workers’ comp injuries – and still couldn’t resume their former jobs.

The employers essentially were saying “enough is enough,” and they couldn’t keep carrying nonfunctioning employees. But the EEOC says such blanket policies violate employers’ responsibility to seek reasonable accommodations for disabled employees on an individual basis.

For employers, the EEOC’s position poses tough questions: How much leave is reasonable? And when does granting yet more leave to an injured employee add up to undue hardship that lets you off the ADA hook? These questions must be answered case-by-case. Thus HR should make sure:

  • Medical leave policies don’t lay down a maximum leave period followed by automatic termination,
  • the company doesn’t automatically fire employees whose FMLA leave is exhausted but aren’t ready to return to work, and
  • the company doesn’t systematically require employees to be physically 100% in order to return to work or continue working. Fitness should be evaluated on a case-by-case basis.

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