A federal judge in Chicago Feb. 11 ruled that the Equal Employment Opportunity Commission can pursue its claim challenging United Parcel Service Inc.'s policy of discharging employees who can't return to work after 12 months of leave, finding that the rule may be an unlawful qualification standard under the Americans with Disabilities Act (EEOC v. UPS, Inc., 2014 BL 35887, N.D. Ill., No. 1:09-cv-05291, 2/11/14).

Judge Sara L. Ellis of the U.S. District Court for the Northern District of Illinois rejected UPS's contention that the requirement is an attendance policy permissible under the ADA because regular attendance is an essential job function for its workforce.

The EEOC didn't plead its claim under Section 102(b)(6) of the ADA--42 U.S.C. § 12112(b)(6)--in terms of essential job functions, but rather contended that UPS's return-to-work rule is a “100-percent healed policy” and thus an impermissible selection criteria or qualification standard because it screens out or tends to screen out individuals with disabilities, Ellis said.

“Framed as such, the twelve-month policy can be considered a qualification standard--a medical requirement that an individual must meet in order to maintain his or her position with UPS--and not an essential job function,” the judge wrote.

Agency Sued on Behalf of Class

The EEOC initially sued UPS in August 2009 on behalf of Trudi Momsen and an unidentified class of similarly situated former UPS employees. The lawsuit alleged that the company's policy of terminating injured employees following 12-month leaves of absence, without providing reasonable accommodations for their disabilities, violates several sections of the ADA.

Momsen, who joined UPS in 1990, took a 12-month leave of absence in February 2006 when she first began to experience symptoms of multiple sclerosis. She returned to work for a brief period, but experienced further medical problems.

According to the EEOC, UPS denied Momsen's request to use a hand cart when she first returned to work, and later refused her request for additional time off to receive therapeutic treatment when her MS flared up after she returned to the workplace.

In a Jan. 15, 2014, second amended complaint, the commission asserted that UPS, since at least 2002, has maintained an inflexible, 12-month leave policy that calls for employees to be “administratively separated from employment” after 12 months of leave.

In addition to ADA Section 102(b)(6), the EEOC alleged that the policy also violates Sections 102(a) and 102(b)(3)(A) of the statute--42 U.S.C. §§ 12112(a) and 12112(b)(3)(A)--because it acts as a qualification standard, employment test or other selection criteria that screens out or tends to screen out a class of individuals with a disability and isn't job-related or consistent with business necessity.

Another class member, Mavis Luvert, in summer 2006 was transferred to a different area within her UPS facility, which was warmer and had limited ventilation, exacerbating her emphysema, according to the EEOC. With the support of her doctor, Luvert asked to be moved back to her original work area, where the ventilation was better, but UPS denied her request, placed her on a disability leave, and later fired her under its return-to-work policy, the agency alleged.

According to the commission, each class member is a qualified individual with a disability who could have performed the essential functions of his or her position with or without accommodation. By firing Momsen, Luvert and the others pursuant to its inflexible, 12-month leave policy, the company imposed a job retention standard made illegal by the ADA, the EEOC asserted.

Prior Rulings and New Decision.

The EEOC's second amended complaint was filed following previous rulings in which the court first dismissed the agency's class allegations--but found that it could pursue individual claims on behalf of Momsen and Luvert (2011 BL 249100, 25 AD Cases 484 (N.D. Ill. 2011), and then reversed course and held that the commission sufficiently raised the possibility of relief above a speculative level with respect to the unidentified class members (2013 BL 7679, 27 AD Cases 590 (N.D. Ill. 2013); .

In the new decision, Ellis ruled on the company's motion to dismiss the second amended complaint for failure to state a claim for relief. According to UPS, the judge noted, “the ability to regularly attend work and not miss multiple months is an essential job function and not a qualification standard, employment test or other selection criteria” prohibited by ADA Section 102(b)(6).

But the court found that the EEOC's ADA regulations define qualification standards as “the personal and professional attributes including the skill, experience, education, physical, medical, safety and other requirements established by a covered entity as requirements which an individual must meet in order to be eligible for the position held or desired.” An essential job function, on the other hand, is defined as “the fundamental job duties of the employment position the individual with a disability holds or desires,” the court said.

The company was correct that the U.S. Court of Appeals for the Seventh Circuit has held that regular attendance can be an essential job requirement, Ellis said. However, the EEOC's ADA Section 102(b)(6) claim isn't “premised on attendance but rather on UPS's imposition of a 100% healed requirement on those seeking to return to work,” she wrote.

“Because such a requirement falls within the definition of a 'qualification standard,' and the EEOC has alleged that the policy applies to qualified individuals with disabilities, the EEOC may proceed on its § 12112(b)(6) claim,” the court decided, denying UPS's motion to dismiss.

EEOC Applauds Ruling

“We are happy to see that, once again, the federal court has confirmed our ability to challenge United Parcel's mandatory leave policy,” John Hendrickson, the regional attorney for the EEOC's Chicago district office, told Bloomberg BNA Feb. 12.

He added that, “It can't be said too many times: The key to avoiding trouble under the Americans with Disabilities Act, is to be constantly asking the question 'Can we get this employee back on the job with a reasonable accommodation?' and certainly not to be asking only 'Has this employee been on leave long enough for us to get rid of him?' ”

“In this case,” Hendrickson said, the “EEOC's underlying allegation is that United Parcel made a practice of focusing on the wrong question.”

The company was still reviewing the decision and was unable to provide comment Feb. 12.

Diane I. Smason, Jeanne B. Szromba, Aaron R. DeCamp and Deborah L. Hamilton of the EEOC in Chicago also represented the commission. Gary R. Clark, John Klages and Ellen M.G. Georgiadis of Quarles & Brady in Chicago represented UPS.