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ADA: CAN EMPLOYEES BE AUTOMATICALLY TERMINATED WHEN WORKER’S COMP LEAVE ENDS?
Sears Roebuck recently settled a class action lawsuit instituted by EEOC. The lawsuit challenged Sears’ policy under which employees were automatically terminated when their worker’s compensation leaves ended. The class action claim stemmed from a charge filed by an individual worker who claimed that when his worker’s comp leave ended, Sears was required to explore reasonable accommodations with him before considering termination. Daily Labor Report, 9/30/09.
When employees are on leave for sickness or disability, questions frequently arise as to how long the company must wait before terminating the employee and whether some accommodation short of termination is required. The problem with Sears’ policy is that it inflexibly required termination when the employee’s leave expired, thereby foreclosing consideration of possible reasonable accommodations that might have obviated the termination. Under the settlement, Sears will revise its return to work policies to require 45 days’ notice to the employee before his leave expires. The notice will also advise the employee about the kinds of accommodations that might be available such as light duty, part-time work, assignment to a different job or additional leave.
The terms of the settlement essentially reflect the ADA requirements. The lesson here is that companies cannot automatically terminate employees when sick or disability leave ends but must engage in an interactive process with the employee to determine whether a reasonable accommodation can be offered. There is no simple answer to the question of what is a reasonable accommodation. Each case is fact-specific depending on the needs of the company, the employee’s ability to work in alternative capacities, and the prognosis for recovery.
