The EEOC has filed a lawsuit (EEOC v. ValleyLife, Civil Action No. 2:15-cv-00340-GMS) under the Americans with Disabilities Act (ADA) against ValleyLife, a disability support services company in Arizona, claiming that ValleyLife has failed to reasonably accommodate its employees with disabilities. According to the complaint, ValleyLife had a policy under which an employee was automatically terminated once he or she ran out of leave (paid or unpaid) and could not return to work. The EEOC claims ValleyLife was supposed to engage in an interactive process with the employee and determine whether it could provide a reasonable accommodation, such as additional leave.

Setting aside the irony of a disability services provider being sued for disability discrimination (kind of like when the EEOC gets sued for discrimination), can an employer have a maximum leave policy that results in termination of employment, regardless of the circumstances? As we have pointed out in prior posts, in today’s world, the answer is no.

Employers often want bright line policies that are easy for supervisors to apply. Maximum leave policies that result in automatic termination once FMLA or other benefit time is exhausted are easily administered. Unfortunately, ease of administration does not necessarily comport with the EEOC’s view of an employer’s ADA obligations. Gone are the days of automatic termination at the end of leave. Many courts have agreed with the EEOC that some amount of leave can be a reasonable accommodation under the ADA although no bright line of how much leave you have to provide has emerged.

Employers cannot have a one size fits all automatic termination policy and comply with the ADA. Instead, any maximum leave policy must leave room for providing additional leave to accommodate a disability (as well as other protected leave, like military leave protected by the Uniformed Services Employment and Reemployment Rights Act). In such circumstances, the reasonable accommodation discussion explores if the employee has an expected return to work date and, if so, whether the employer can grant a request for some limited amount of leave. Such a flexible policy will enable the employer to engage in the reasonable accommodation discussion. If the employee has no expected return to work date or needs months of additional leave, the employer may conclude that it cannot provide the accommodation and terminate the employee’s employment, just like it would have under the maximum leave policy. By going through the interactive process, however, the employer has a better chance of defending the decision in court.