United Parcel Service (UPS) has agreed to settle a nationwide lawsuit filed in 2009 by the Equal Employment Opportunity Commission (EEOC). The settlement agreement will pay $2 million to approximately 70 current and former UPS employees who were alleged victims of disability discrimination. Read the EEOC Press Release issued August 8, 2017.
The saga began in 2009 when EEOC charged that the world’s largest package delivery company had a 12-month leave policy and terminated workers who needed additional time off without engaging in an interactive process or allowing for a leave extension as a reasonable accommodation. The EEOC investigated an allegation made by an administrative assistant who took a 12-month medical leave of absence from work when she began experiencing symptoms and was later diagnosed with multiple sclerosis. She returned to work for a few weeks and then needed additional time off. She was terminated for exceeding the 12-month leave policy. Following this investigation, the EEOC added other individuals whom they claimed were also similarly discriminated against.
UPS contended that its policy of 12-month maximum leave was a reasonable attendance policy since regular attendance is an essential function of the job for its workers. Judge Sara L. Ellis of the U.S. District Court for the Northern District of Illinois rejected that argument.
The consent decree requires the following mandatory updates to Americans with Disabilities Act (ADA) Policy within 30 days of the entry into the agreement:
- Revised company statement about providing reasonable accommodations
- Provide employees with explicit instructions on how to request a reasonable accommodation, identification of persons to whom the request can be made, and examples of reasonable accommodation
- A statement directing supervisors and managers who learn of a request for accommodation to refer the matter to designated occupational health, human resources, or administrative personnel
- An interactive process that includes consideration of all possible reasonable accommodations, including asking the employee if they want to change to a different work location
- Considering each accommodation request from employees on an individual basis
- Distribute or make the policy prohibiting disability discrimination accessible to all employees
- Issue a statement to HR that they must seek legal advice prior to terminating an employee who has reached the end of their medical leave or disability period
- Issue a statement that UPS will not retaliate against an employee who requests an accommodation
Additionally, the company will conduct training for HR supervisors and above, and occupational health supervisors who administer the company’s disability accommodation process twice within the three-year period covered by the decree. EEOC must approve the training materials and the trainers in advance of the training. Finally, the company is required to provide semi-annual reports to the EEOC on the status of every accommodation request for the next three years to prove compliance with the agreement. After submitting each report, UPS must make a representative available to answer EEOC’s questions, if any, about the contents of the report. The reports section of the decree includes items to be provided in the report such as:
- Employee name, address, phone number
- Date leave began, job held prior to leave, job duties/essential functions prior to request
- Accommodation(s) requested, identity of employees who handled the request(s), all positions discussed with the employee and/or investigated by HR as possible accommodations
- All accommodation checklists and any documents created during meetings between the company and the employee during the process, correspondence between the company or third party administrator and the employee
- Medical documentation received by the company
EEOC’s regional attorney for the Chicago District office, Greg Gochanour, gives us insight into what the EEOC expects from companies in this statement found in the press release: The ADA requires companies to make a real effort to work individually with their employees with disabilities to provide them with the necessary and reasonable accommodations that will allow them to do their jobs.
Train the supervisors and managers who may receive accommodation requests in the proper way to handle such requests. Provide them with appropriate responses including where and to whom to direct the request.
What can employers take away from this situation?
- Review your policy and process for considering reasonable accommodation when requested by an employee. The ADA has been in effect for 27 years. It requires employers to engage in an interactive process with employees who request a reasonable accommodation to allow the employee to perform the essential functions of the job. This may include time off for medical treatment, recovery and periodic follow-ups, changes to the work environment, or changes to the job duties that will allow the employee to perform the essential functions of the job.
- Make the process for requesting an accommodation clear and readily available to employees including identifying the individuals or job titles to whom the request should be made, applicable timelines, and a method for resolving disputes.
- Train the supervisors and managers who may receive accommodation requests in the proper way to handle such requests. Provide them with appropriate responses including where and to whom to direct the request.
- Make sure there is a documentation trail showing all the steps engaged in during the processing of an accommodation request. Schedule periodic review of the process to ensure no steps are being overlooked or skipped. Federal contractors – this is often an item on the Office of Federal Contract Compliance (OFCCP) list of additional requests after your affirmative action plan is submitted for a compliance review. Ensure the documentation is kept confidential.
- Seek guidance from experts to help you make wise decisions about accommodations. There are no-cost or low-cost resources that will help you with modifications to the work environment or equipment. Contact the Job Accommodation Network (JAN) for expert and confidential help and advice. Search through the Office of Disability Employment Policy’s (ODEP) website for more ideas, resources, and advice.
- If you are unable or unwilling to make the requested accommodation, seek legal advice to ensure you are on solid legal ground before denying the request. It is permissible to offer alternatives to the employee’s request if the alternative is reasonable and it allows them to perform the essential functions of their job.
- Review other policies, such as those on attendance or medical leave, for potential issues such as with the UPS 12-month leave policy. In 2016, the EEOC issued guidance on Employer Paid Leave and the ADA. This website provides valuable information on equal access to leave, leave as a reasonable accommodation, the interactive process, return-to-work, undue hardship, and more.
- Do not forget about applicants. Companies have a duty to provide reasonable accommodation to the application process for applicants who are disabled. Federal contractors who use an internet or electronic based application system must provide contact information on their online application website for a disabled applicant who needs an accommodation to the application process. See the FAQ on OFCCP’s website for further information on Online Application Systems.
A well-designed process for receiving, considering, and communicating about reasonable accommodation is one more tool for employers who are striving for a diverse and inclusive workplace.
The UPS consent decree still requires the judge’s signature before it takes effect. Subscribe to BALANCEview HR Blog and stay tuned as we monitor this and other EEOC events.