The uncertainty associated with indefinite leaves of absence has prompted many employers to adopt policies which place a cap on the length of leaves of absence. A policy previously adopted by UPS is a common example:
“…if you are absent from your regular occupation for 12 months, you will be administratively separated from employment, regardless of your status on STD [short term disability] or LTD [long term disability].”
Uniform enforcement of a policy providing for administrative termination after a one-year leave of absence has, in fact, been found sufficient to defeat a claim of retaliatory discharge for filing a worker’s compensation claim. See Haggar Clothing Co. v. Hernandez, 164 S.W.3d 386 (Tex. 2005).
For eight years, however, UPS fought a suit brought by the EEOC alleging the aforementioned policy violated the Americans with Disabilities Act (“ADA”). On July 28, 2017, UPS finally agreed to a proposed consent decree with the EEOC. The proposed consent decree, which has not yet been approved by the court as of the date of this writing, requires UPS to, amongst other things, (1) “seek legal advice before terminating the employment of an employee who has reached the end of the medical leave of absence or residual duty/disability period; and (2) pay a group of aggrieved former employees $1,718,500.