Much of the recent attention devoted to the Americans with Disabilities Act (ADA) has focused on how the Americans with Disabilities Amendment Act (ADAA) will expand the Act's coverage and force employers to rethink how they address disability discrimination issues in the workplace. At the same time it is revising its regulations and enforcement guidance in light of the ADAA, the Equal Employment Opportunity Commission is also ramping up its enforcement of the ADA in other areas. Two recently filed cases highlight the EEOC’s stepped-up efforts to enforce the ADA.
On August 27, 2009, the EEOC filed suit against United Parcel Service, alleging that UPS maintained an inflexible medical leave policy under which employees who exceed the policy's 12-month time limits are terminated. EEOC v. United Parcel Serv. Inc., N.D. Ill. No. 09-C-5291. According to the EEOC, an inflexible, fixed leave policy fails to take into account potential reasonable accommodations and sidesteps the interactive process required under the ADA. Neither the reasonable accommodation obligation nor the requirement that employers and employees engage in an interactive process with regard to potential accommodations was affected by the ADAA. Nevertheless, this case demonstrates how long-standing ADA obligations are still being shaped via litigation.
Just a few days later, on August 31, 2009, the EEOC sued a Minnesota-based sheet-metal manufacturer claiming that the employer's policy requiring employees to disclose their use of prescription drugs or over-the-counter medications violates the ADA. EEOC v. Product Fabricators Inc., D. Minn. No. 09-CV-2303. The EEOC's position is that the disclosure policy is overly broad in that it is not limited to situations where the use of drugs affects the employee's ability to safely and effectively perform his or her job. In addition, in the EEOC's view, the policy required employees to disclose disabilities or impairments to their employer where there is not a legitimate business reason to do so. The EEOC is also seeking reinstatement of an employee who was fired shortly after he disclosed he was using Vicodin at work, on the grounds that the employer impermissibly regarded him as disabled and failed to consider whether he could perform his job while taking the medication. The ADAA lowered the bar for regarded-as claims, so this will be one of the first cases to address how this type of claim is litigated.
It appears from these recent lawsuits that the EEOC is ramping up its enforcement of the ADA, and scrutinizing employer's policies that it views as running afoul of the Act's various requirements and prohibitions. Both of these lawsuits are a long way from over, and whether the EEOC will prevail remains to be seen. Nevertheless, employers with fixed-length leave policies would be well advised to look closely at how those policies may apply in a particular case and whether an extension of a leave might provide an accommodation which would allow a disabled employee to return to work. Likewise, employers who require employees to disclose their use of prescription or over-the-counter drugs should consider whether such a blanket approach is needed, or whether a more narrowly tailored policy requiring disclosure only of drugs that could impact the employee's ability to safely and effectively perform his or her job would be more appropriate.
If you have questions about the ADA, the ADAA, or about whether your policies and practices may conflict with your legal obligations under those laws, please contact any member of the WNJ Labor & Employment Law Practice Group.