By Cameron J. Etezady

Whether reviewing internal policies or individual employee’s disability or leave status, the best course of action is to operate with reasonableness and compassion.  The reason for doing so is threefold.  First, your employees will value being treated that way; second, if your decisions are ever questioned, whether by the Equal Employment Opportunity Commission (“EEOC”) or state agency, an employee’s attorney, or eventually a judge or jury, you will be the more reasonable party, and therefore the more believable party; and finally, applicable laws require as much.  The principle of reasonability and compassion are the underpinnings of regulations like the Americans With Disabilities Act (“ADA”), 42 U.S.C. §12101, et seq., the Family Medical Leave Act (“FMLA”), and other state and federal laws.  The EEOC and plaintiffs’ attorneys, however, have been extremely successful in pursuing disability discrimination claims against employers who elect to forego reason or compassion in favor of “inflexible” and defined leave policies.

As has been reported by many sources, the Equal Employment Opportunity Commission has reached several large settlements in cases where an employer’s policy was to terminate employees who had exhausted medical leaves (such as Family Medical Leave or worker’s compensation leave) as a matter of course.  The logic of the EEOC’s pursuit of these claims is that though there is a finite duration to most leaves (for example 12 weeks under the FMLA), permitting the maximum leave does not provide a safe harbor for an employer to terminate an employee who is still unable to work.  Under the ADA, an employer still has an obligation to provide reasonable accommodation whether or not that person is at the end of his or her leave – which may mean providing additional leave to the employee.

The recoveries in the EEOC’s cases are significant to companies of any size.  In 2010, a federal district court in Illinois approved a settlement in the amount of $6.2 million in a class action case brought by the EEOC against Sears Roebuck & Co.  The EEOC argued that Sears’s worker’s compensation leave policy violated the ADA because Sears had an inflexible policy of terminating employees with medical conditions once their leave was exhausted.  The EEOC argued Sears had an obligation to seek ways to return injured employees to work and by not doing so, Sears had violated its obligations under the ADA to engage in the “interactive process” to determine whether or not its employees could return to work with an accommodation.  Part of the settlement requires Sears, prior to terminating an employee for exhausting their leave, to contact the employee to provide them with the opportunity to request potential accommodations, including the possibility of additional leave.

In January 2011, the EEOC settled another automatic termination case with a group of supermarkets collectively referred to as “Jewel-Osco” for $3.2 million.  According to the EEOC, Jewel-Osco had a policy and practice of firing employees with disabilities at the end of their medical leave without offering reasonable accommodations, violating the ADA.  As part of that settlement, Jewel-Osco agreed to ensure that its personnel had training on employee accommodation decisions as well as the ADA.  It also agreed to notify employees that they need not be able to return to work at 100% capacity upon returning from leave and that accommodations may be available permitting an employees return to work at less than full health.

Practices that may draw scrutiny for possible violation of the ADA:

  1. Inflexible terminations of employment upon expiration of FMLA leave;
  2. Inflexible termination of employment upon expiration of worker’s compensation leave;
  3. Inflexible termination of employment upon expiration of Short Term Disability benefits; and
  4. Inflexible termination of employment upon expiration of fixed medical leave that is even more generous than the FMLA’s 12 weeks of leave.

The common thread to the above circumstances is the term “inflexible.”  The EEOC takes the position that, rather than a policy resulting in an inflexible and automatic termination, the employer and employee should engage in the “interactive process” about whether additional leave or some other accommodation is appropriate under the circumstances.  In other words, the EEOC takes the position that fulfillment of an employer’s obligations under the FMLA or other leave programs does not alleviate employer responsibilities and and requirements under the ADA.

A moment of reflection about the applicable statutes shows the logic of the EEOC’s argument and explains the employers’ adverse outcomes.  The ADA requires employers to reasonably accommodate disabled individuals so that they can succeed in the workplace despite any disability.  The FMLA exists to ensure individuals have time necessary to recover from serious health conditions (or assist family members to recover from such conditions) without fear of losing their job.  The FMLA was not intended to provide a ceiling for leave time after which an employer can disregard all other laws and terminate an employee where, in an extreme example, an employee may only need twelve weeks and one day of leave.  The ADA is intended to curb such a preposterous result and requires employers to review each instance of leave and engage with each employee in determining what may be an accommodation that will successfully return an employee to the workplace without unduly burdening the employer.


The broadening of the definition of “disability” under the ADA Amendment Act of 2008 means now, more than ever, employers must focus on their efforts to reasonably accommodate their employees – especially those employees utilizing various available leaves and sick and personal time.  Reasonable accommodation considerations extend beyond traditional FMLA or disability leaves and apply to all forms of absentee policies.  The overarching requirement of the ADA is that an employer act reasonably in enabling individuals with a disability (broadly defined) to succeed in the workplace.  Failing to do so will invite costly litigation and more importantly, make defending employment decisions at an agency or in litigation difficult to impossible.

An illustration of a possibly overlooked situation would be where a relatively new employee does not meet the FMLA’s or a disability program’s minimum work day requirements but still needs some sort of short leave, or intermittent leave for medical treatment.  The ADA has no minimum work hour requirements, so the employer must still reasonably accommodate a disabled person who is otherwise qualified for their position even if they are new to the company.  That reasonable accommodation under the ADA may be some sort of leave, adjusted schedule, or some other change to working conditions that is not an “undue hardship” to the employer.

With the above in mind, employers should do several things.  First, they should review their FMLA and other leave policies for strict cutoffs on leaves or limitations to returning from leave that result in termination.  These sorts of “inflexible” cutoffs are easy targets of individual or class action ADA claims.  Second, employees tasked with making leave determinations (FMLA or otherwise), must be trained in the ADA and understand that there cannot be a simple time calculation to determine whether or not a person can return to work.  And finally, decision making employees should focus on being reasonable and compassionate in employment and leave decisions to ensure optimum outcomes for their employees, but also to prepare for the possibility of any future external inquiry.


Cameron J. Etezady is an associate attorney at Hamburg & Golden, P.C. in Philadelphia, Pennsylvania.  He focuses his practice in civil litigation with extensive experience in employment law and civil rights matters.  He represents large and small businesses and institutions in litigation and corporate matters.  Mr. Etezady obtained his juris doctorate and bachelor of the arts degree from the University of Southern California.