In the last month, the EEOC has received media attention for litigation involving the employer’s obligation to return employees to work at the end of leave.
Early in January, the EEOC announced the settlement of a class action against Supervalu in the amount of $3.2 million. That case involved allegations that the employer had a “policy and practice” of terminating employees with disabilities at the end of their medical leaves, instead of bringing them back to work with reasonable accommodation. Supervalu denied the allegations, stating that it had an effective return to work program, but wanted to settle the matter.
More recently, the StarTribune featured the story of a woman with brain cancer who was not permitted to return to after even after her physician completed forms stating that she would be able to return with only occasional absences. The EEOC is suing her employer, Maxim Healthcare Services, for more than $300,000 in damages on behalf of her estate.
Most employers understand their obligations under the FMLA, which requires employers of 50 or more employees within 75 miles to provide 12 weeks of job protected leave. But it becomes difficult when employees stay out longer than 12 weeks or the employee was not eligible for the FMLA, for example because the employee was not employed for the required one year and/or did not work the required 1250 hours in the preceding year. In these cases, managers may argue that there is no obligation to take an employee back, citing performance, attendance or other issues for failing to return the employee to work. However, recent cases brought by the EEOC demonstrate that employers must have effective return to work programs or risk litigation.
Overall, statistics published by the EEOC show that there were a record number of EEOC charges brought in 2010, with the greatest increase in claims brought under the Americans with Disabilities Act.