*This is a 2-part series blog. The second part of this blog will be published in our June newsletter.
A Common Example and A Common Mistake
Tiffany is an employee at Big Store. Tiffany is injured in a car accident and takes leave from work under the FMLA. During her leave, Big Store sends a letter to Tiffany advising her that once she exhausts her FMLA leave, she will be required to return to work at a specified date or else she will be fired under Big Store’s Maximum Leave policy. Tiffany uses the full 12 weeks of FMLA leave for her disability but still needs five additional weeks of leave before she can return to work. Tiffany does not show up to work on the specified date and is fired.
For those that have experience in the trenches of human resources, the above fact pattern likely caused you to raise an eyebrow. However, for those with less experience and even for those that are experienced but may have become complacent with the methodic nature of terminating employees (hopefully not!), the mistake made in the fact pattern might not be so obvious. Before terminating the employee, Big Store failed to consider providing leave as a reasonable accommodation under the Americans with Disabilities Act (“ADA”).
Maximum Leave Policies
It has become increasingly common for employers to adopt maximum leave policies, or neutral termination policies, that allows for the automatic termination of any employee that exhausts all applicable leave and fails to return to work. In most cases, the ability to enforce these policies has proven to be an effective way to allow for a swift termination of an employee who is failing to show up for work. However, maximum leave policies can often lead to violations of the Americans with Disabilities Act. This is particularly true when the employer fails to consider offering additional leave as an accommodation.
In the simplest terms, the ADA provides that no employer shall discriminate against a qualified individual on the basis of disability in regard to “the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” As it relates to maximum leave policies, the U.S. Equal Employment Opportunity Commission (“EEOC”) has advised that these policies “may have to be modified as a reasonable accommodation for absences related to a disability, unless the employer can show that doing so would cause undue hardship.”
Over the past few years, the EEOC has targeted employers for the unlawful enforcement of maximum leave policies that did not provide reasonable accommodations for qualified individuals with a disability prior to their termination. Some examples of employers that were targeted by the EEOC and forced to defend their maximum leave policies include the Blood Bank of Hawaii, UPS, Dillard’s, Interstate Distributor Co., Sears Roebuck, and Lowes. A quick glance at the amount of money paid to settle some of these cases is enough to make any employer shake in their boots.
How Is Enforcement of a Maximum Leave Policy Unlawful?
There are two types of claims that an aggrieved employee may be able to raise against an employer for failing to modify their maximum leave policies as an accommodation under the ADA. The first is a claim based on disability discrimination. That is, that they were terminated because of their disability. The second is on the failure to accommodate and modify the maximum leave policy.
As stated above, the ADA prohibits an employer from discriminating against a “qualified individual with a disability on the basis of that disability.” When a plaintiff asserts an ADA discrimination claim involving an adverse employment action and has no direct evidence of discrimination, the court will use the burden-shifting framework set out in E.E.O.C. v. LHC Group, Inc. Under this framework, the plaintiff must first establish a prima facie case of discrimination by showing that: (1) they suffered from a disability or was regarded as disabled; (2) they were qualified for the job that they held; and (3) they were subjected to an adverse employment action on account of their disability. If the plaintiff successfully establishes a prima facie case, then the employer must articulate a legitimate, nondiscriminatory reason for the adverse employment action. If the employer meets its burden, then the burden of production shifts back to the plaintiff to show that the defendant’s proffered reason was a pretext for unlawful discrimination. A prima facie case, coupled with a showing that the proffered reason was pretextual, will usually be sufficient to survive summary judgment.
An employee’s ability to establish a prima facie case of discrimination will depend on the employee’s circumstances. Obviously, if an employee suffered an injury in an accident, like Tiffany in the example above, then it is plausible that they will be able to establish that Big Store knew about her qualifying disability under the ADA or at least regarded her as having a qualifying disability, to meet the first prong. In order to satisfy the second prong, the employee only needs to demonstrate that they are qualified to perform the essential functions of their job, with or without accommodations. Regarding the third prong, a plaintiff like Tiffany would likely allege that she was terminated “because of” her disabilities. To do so, the plaintiff would have to produce evidence that the decision to terminate her was based on discriminatory intent. This can be demonstrated through any means, including through e-mails, text messages, verbal statements made, etc. Additionally, the fact that the employer hired a nondisabled person to replace the plaintiff may also be used as evidence.
Should the employee establish a prima facie case, the employer would then be required to articulate a legitimate, nondiscriminatory reason for the adverse employment action. This can be accomplished in a variety of ways, such as showing that the employee had bad job performance or was issued reprimands. Basically, anything that would justify terminating the employee other than because of their disability.
If the employer cannot rely on the employee’s performance as the nondiscriminatory reason for the employment action. The employer will be forced to justify its decision to terminate the employee based on its maximum leave policy. Under the maximum leave policy, the employer would argue that the reason for termination was not based on the employee’s disability but rather was a neutral application of the maximum leave policy. The employer would need to show that it has applied the policy uniformly amongst all employees to support this. If this is established, the plaintiff would then be given an opportunity to show that the District’s reason for the termination was mere pretext for the discriminatory adverse action.
An employer’s ability to demonstrate a nondiscriminatory reason for termination is critical in defending against claims for discrimination. This is why employers are constantly reminded to document all employee issues. In cases like these, sometimes, a one or two sentence note documenting disciplinary measures taken against an employee can be the difference between winning and losing a case brought under the ADA.
The second cause of action, the employer’s obligation to suggest an accommodation, and the FMLA notice of leave that may trigger the ADA interactive process will be explained next month. Stay tuned…..
 42 U.S.C. § 12112(a).
 See EEOC “Employer-Provided Leave and the Americans with Disabilities Act”, available at https://www.eeoc.gov/laws/guidance/employer-provided-leave-and-americans-disabilities-act.
 See Id.
 773 F.3d 688 (5th Cir. 2014).
 See Id.