You have a disabled employee out of leave for 180 days.  Your policy says that employees may be terminated after the end of 180 days. So, on day 181, can you fire the employee?

Today, my colleague Christopher Parkin tackles that difficult question in a recent ADA case brought by the EEOC against a very big employer. 

The increasingly complex web of the ADA has snagged another unwitting victim.

A few weeks ago, in a case brought against shipping giant UPS by the EEOC, a federal judge in Illinois issued a clear warning to employers that use leave policies that define strictly the length of time for a permissible leave.

The EEOC filed a lawsuit claiming that that a UPS policy that calls for employees to be “administratively separated” (read: fired) after twelve months of leave violated the ADA.

In one application of the policy, UPS fired an employee shortly after she returned from a one year leave of absence to treat multiple sclerosis. Shortly after her return, she requested an additional two weeks of leave because of medication side effects. UPS simply fired her for exceeding the twelve month leave limit.

The EEOC claimed that the UPS policy violated the ADA because it served to screen out disabled employees unable to return to work after twelve months’ leave without regard to whether further accommodations would allow them to work.

UPS asked the court to dismiss the case, arguing that employees who require excessive leave are not qualified for their positions because attendance is a necessary part of the job. If anything, UPS argued, the policy is exceedingly generous and neither the ADA nor any other law should compel the company to keep employees on leave beyond a year.

The judge didn’t see it so clearly and allowed the case to proceed.  In a bare bones ruling, she determined that because the policy can be applied to condition a return to work on the employee’s medical health and ability to work without further accommodation or leave, it may be discriminatory and violative of the ADA’s mandate that employers take steps to accommodate disabled employees whenever possible.

The ruling isn’t the last word on the issue and the EEOC must still prove its case but the court’s reasoning should give any employer with a firm leave policy pause.

The court’s reasoning underscores a critical theme of ADA cases: employers are expected to treat each employee individually and not impose blanket policies that have the potential to ensnare disabled employees.

What troubled the EEOC, and the court, is that the UPS policy applies universally and acts as a bar to qualified individuals returning to or maintaining employment. Such medical requirements are squarely within the range of conduct prohibited by the ADA, at least according to the EEOC and this court.

Will Connecticut courts follow in lock step? That remains to be seen over time.

To minimize the risk of ADA liability, employers should focus on what they can do to get employees back on the job not what they can do to sever the relationship. A genuine effort to reasonably accommodate each individual’s needs goes a long way towards limiting potential liability.

Of course, each case is different and, as always, employers ought to consult with their typical counsel to see if a particular situation requires some further analysis.


The UPS case is far from over but this ruling is sure to embolden the EEOC to pursue similar claims wherever it can. Given the potential for costly litigation, it’s worth reviewing handbooks and policy documents to be sure policies are written in such a way that leave policies do not unintentionally limit opportunities for qualified disabled employees.