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Thursday, February 13, 2014

Breaking Up is Hard to Do

 by Tommy Eden

Trudi Momsen, who worked at United Parcel Service (UPS) since 1990, was terminated in March 2007 soon after returning from a twelve-month medical leave of absence. When she returned to work in February 2007, she required a cane to walk and requested reasonable accommodations including a hand cart, UPS refused to provide her with any accommodations. Soon after returning to work, Momsen injured herself and needed to take additional time off to receive therapeutic treatment. Instead of granting Momsen’s request for additional medical leave, UPS released her pursuant to its policy providing that employees will be “administratively separated from employment” after twelve months of leave.

Momsen then filed a Charge with the EEOC alleging discrimination under the American with Disability Act (ADA). The EEOC then took her case on as their own and filed suit on her behalf, and other similarity situated employees, in Federal District Court in Illinois.

The ADA prohibits an employer from using qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities unless the standard, test or other selection criteria, as used by the covered entity, is shown to be job-related for the position in question and is consistent with business necessity. 42 U.S.C. § 12112(b)(6).

The EEOC alleged in its suit against UPS that its leave policy maintains a “100% healed requirement” which it claimed operated as a medical qualification standard in violation the above ADA provisions and prevents individualized assessment. The Federal Judge this past week agreed and has allowed the EEOC’s case to move forward.

Common Sense Counsel: The UPS case presents one of the most difficult situations for an employer to manage – the breakup at the end of leave when the employee can not return to full duty. Following these 7 Steps can help keep your breakup out of Court:

1) Adopt legally complaint FMLA, ADA Reasonable Accommodation and Non-FMLA leave policies in your Employee Handbook;

2) Use the Department of Labor approved FMLA forms when an employee make a leave request;

3) Retain a knowledge occupational physician to consult with to make individualized assessment fitness for duty determinations;

4) Update all job descriptions to include regular and predictable attendance as an essential job function;

5) Engage in interactive discussions with your employee by letter, email and in person about expected return to duty date, their physician opinions, fitness for duty upon return, ability to safely perform and show patience;

6) Watch allowing group medical coverage to continue much past 12 weeks of leave, and not under COBRA, as it can be anticipated that insurers may seek ways to retroactively deny coverage extended not in strict accordance with your employer group contract; and

7) Do not draw “12 month separation rule”  lines in the sand, or your in handbook, that the EEOC can use to try and make you a poster child.

Tommy Eden is a partner working out of the Constangy, Brooks & Smith, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-246-2901. Blog at