Settlement Reminds Employers Probationary Periods Are Not Immune to the ADA

probation_1Many employers reserve the right to terminate a new employee at any time during a “probationary period” if they find a new hire is not suited for the job. All too often, this gives employers a false sense of security in the belief they can terminate an employee for any reason during that period. However, a pipe-fitting manufacturer recently discovered this can be a costly mistake after it agreed to a $65,000 settlement with the Equal Employment Opportunity Commission (EEOC).

According to the EEOC’s disability discrimination lawsuit, the company’s policy offered non-probationary employees up to 26 weeks of leave, but did not offer leave to employees in the probationary period. The employee — a Marine Corps veteran — began suffering from seizures caused by service-related disabilities and requested six weeks of unpaid medical leave to address the seizures. However, since he was only ten weeks into the job, the company denied his request and terminated his employment.

While probationary employees are not entitled to leave under the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA) applies throughout the hiring and employment process. The EEOC has long held the Act covers probationary employees, who are entitled to accommodations under the ADA. Avoiding EEOC scrutiny and ADA liability therefore requires employers to analyze every ADA request — whether from a new hire or a long-term employee — in the same way.

Although this case settled before going to court, it offers several takeaways for employers. The company’s primary mistake was not making an exception to its leave policy for this probationary employee and automatically terminating him. Rather, it should have carried out an individualized assessment to determine whether a reasonable accommodation would help the employee perform the essential functions of the job. This includes learning more about how his condition affected his job, why a leave of absence was necessary and whether it would ultimately help him return to work.

This interactive process is crucial for determining whether the employee’s absence will affect the company’s operations and — if it does — allow it to document it as early as possible. Although here the requested leave was of a specific duration, if no time frame is given, employers should explain to the employee how his absence would impinge on their business. Employers should then request a reasonable estimate of when the employee will be able to resume his essential job functions — with or without an accommodation — to enable them to better assess whether leave can be provided as a reasonable accommodation, or would impose an undue hardship on the employer. Unfortunately, there is no bright line rule outlining the length of leave employers must grant as an ADA accommodation. Instead, the ADA requires this individualized interactive process for each employee requesting leave.

This case also serves as an important example that employers must take care not to view leave requests from an FMLA standpoint alone. Rather, employers should always consider whether an employee is entitled to a leave of absence as a reasonable accommodation under the ADA, either before, or after, the 12 weeks of FMLA leave is exhausted.

via Settlement Reminds Employers Probationary Periods Are Not Immune to the ADA.

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