Human Resources News & Insights

‘There is no probationary status under the ADA’

HR pros are already well aware that when a disabled employee’s FMLA leave expires, he or she may be entitled to additional leave as a reasonable accommodation under the ADA. But a new EEOC lawsuit shows that leave may be an option even when workers aren’t eligible for FMLA protections.  

The recent settlement in EEOC v. EZEFLOW provides an intriguing lesson for employers of all stripes.

A unique situation

In this case, an employee was hired as a maintenance tech for EZEFLOW, a pipe-fitting manufacturer. The employee was also a Marine Corps. veteran — who served in Iraq and Afghanistan — and who started working for EZEFLOW right after his discharge from the Marines.

Soon after starting his employment as a maintenance tech, the employee began having seizures, which were caused by post-traumatic stress disorder (PTSD). Because of this, the employee provided EZEFLOW with a doctor’s note that recommended he stay off of work for six weeks to deal with his medical issues.

The problem: The employee had only been working for the company for around 10 weeks when his doctor recommended the leave of absence — and the company had a 90-day probationary period that he hadn’t yet completed. While employees in the probationary period weren’t eligible for leave, non-probationary employees were entitled to up to 26 weeks of leave per company policy.

During a meeting with an HR rep, the employee requested six weeks of leave as a reasonable accommodation.

The employer decided that leave wasn’t feasible because of its probationary policy — and terminated the employee.

Cue the feds

Following EZEFLOW’s termination decision, the EEOC filed an ADA lawsuit claiming the company fired him rather than providing the leave he requested.

We don’t have the luxury of posting the court’s decision because the company decided to settle the lawsuit and wound up paying $65,000 to the employee as well as promising to hold extensive ADA and non-discrimination training in the future.

From day one

Even without a court’s take on this lawsuit, there are plenty of things employers can do to avoid a fate similar to that of EZEFLOW.

FMLA Insights founder Jeff Nowak tackled the practical takeaways of this lawsuit on his site. Many of those takeaways — always engage (and communicate regularly during) in the interactive process, conduct an undue hardship analysis, etc. — apply to most ADA lawsuits that hinge on extended leave as an accommodation.

But one particular facet of this case really stood out: The probationary status. Nowak revealed that a number of the employers he worked with wondered if they needed to provide leave — or an alternative accommodation — to a new hire who happens to suffer from some type of disability (and we all know the broad scope of disabilities under the ADAAA).

The answer: Employers may very well have to provide leave to new hires regardless of whether or not they have a probation period in place for these workers.

As Nowak puts it: “There is no probationary status under the ADA.”

That means, for ADA purposes, new hires and long-term veteran employees must be treated exactly the same.

Put another way: Employees may be eligible for leaves of absence on the very first day of their employment.

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