ADA Settlement Highlights Importance of Individualized Return-to-Work Analysis
By Larry S. Perlman
A grocery chain agreed to pay $3.2 million to settle 110 former employees’ lawsuits claiming that the company applied an inflexible, overly rigid policy regarding disability leave. The EEOC recently announced an Illinois federal court’s approval of the settlement agreement.
The lawsuit, EEOC v. Supervalu Inc., alleged that the company terminated multiple employees after their approved medical leaves had expired. According to the EEOC, the company required employees to prove that they were 100-percent able to carry out their job duties before returning to work. The EEOC argued that this requirement violated the ADA because it did not provide for an individualized analysis of each employee’s situation in order to determine whether each employee could return to work with reasonable accommodations. The lawsuit also alleged that the company discriminated against disabled employees because it did not allow employees to take advantage of a company-sponsored “light-duty” program unless they were injured on the job. In addition to the monetary payout, the settlement terms also require the company to change its leave policies to comply with the “individualized analysis” requirement and to communicate with all employees out on leave in order to assess their ability to return to work.
Regardless of whether the allegations were ultimately true, this case highlights the perils of applying rigid policies with regard to employee leave. Further, this area is likely to remain one of aggressive enforcement — the EEOC’s spokesperson confirmed that the agency is currently conducting additional investigations of employers on this same issue.
Employers should review their policies to ensure compliance with the ADA’s requirement of an individualized analysis of each possibly disabled employee’s situation. When it comes to the ADA, instead of utilizing “one-size-fits-all” policies, fully exploring potential accommodations for each employee is required (http://tinyurl.com/5svna4j).
“Do We Have to Provide the Information?” Isn’t Always the Only Question
By Thomas C. Pence
Employers often receive requests for information from current and former employees, as well as unions. For example, a former employee might ask for a copy of his/her personnel file, or a union might ask for copies of certain disciplinary records. When these requests are made, the first question an employer generally asks, and properly so, is “do we have to provide this information?”
Sometimes, the answer is yes. For example, many states require employers to give current and former employees copies of certain personnel records, and the National Labor Relations Act gives unions the right to certain information.
Sometimes, the answer is no. The employer, for example, may be located in a state that does not have a statute (http://tinyurl.com/65nt3e8) requiring it to provide employees with access to personnel records.
However, even when the employer does not have to provide the information, it usually should consider another question — “should we provide the information anyway?” Refusing to provide information may sometimes make a current or former employee, an attorney, or a union believe there is a problem or issue when none exists. Providing the information — if it is helpful to the employer’s position — may defuse the issue or cause the employee, attorney, or union to conclude there is no viable claim to pursue.
Each case is different, and employers need to comply with privacy and HIPAA rules when it comes to providing information. However, depending on the circumstances and the nature of the information, sometimes the right answer is to provide information even when you are not required to do so.
Legal News is part of our ongoing commitment to providing legal insight to our clients and colleagues. If you have any questions about or would like to discuss these topics further, please contact your Foley attorney or the authors of this issue.