Companies with automatic termination policies, policies that automatically terminate employees after they exceed a certain amount of leave time, have come under fire in recent years.  

Reason: Under the ADA, employers must engage in the “interactive process” to see if the employee on leave can still do his or her old job with some type of reasonable accommodation — and additional leave time may be considered a reasonable accommodation.

Salem v. Houston Methodist Hospital is a recent court case that centered around the idea of an automatic termination policy.

Here’s some background: Fatima Salem worked as a nurse and suffered from a number of medical and psychological conditions. Salem’s medical issues led to her requesting and getting approved for a 59-day leave of absence that was covered by the FMLA. Following her return from that leave, Salem took another leave of absence.

Then the problems occurred. According to Houston Methodist’s leave policy:

“[a]ll leaves of absence of any kind when combined cannot exceed six (6) months in any rolling twelve (12) month period, measured backward from the date the leave begins.”

Salem had asked her employer to make an exception to the auto-termination leave policy when she discovered she wouldn’t be able to return within the six-month time frame. However, Salem was unable to provide the company with any type of estimate as to when she’d be able to return to work. Because of the company policy and the fact no estimate of a return date was given, Houston Methodist denied the request and fired Salem.

EEOC takes over

Salem’s first move was to file a charge with the EEOC, claiming Houston violated the ADA by refusing to grant her leave request. The EEOC determined that Houston’s policy violated the ADA …

“… in that it deprives certain employees of a reasonable accommodation, dispenses with respondent’s obligation to engage in an appropriate interactive process and impermissibly relieves [the Hospital] of its burden to establish undue hardship as a defense to a request for a reasonable accommodation that would extend a leave beyond six months.”

Despite its stance on the leave policy, the EEOC was unable to conclude that Houston violated the ADA by terminating Salem. According to the agency, simply having a policy that violated the ADA wasn’t enough to prove that Salem’s ADA rights had actually been violated.

So then Salem took up her case against Houston with a district court. Her suit claimed that, among other things, Houston failed to accommodate her disability by not providing additional unpaid leave and retaliated against her request, which violated the ADA.

Houston Methodist fought to get the suit dismissed.

What the court said

In an unexpected turn of events, the court granted summary judgment for the company on all of Salem’s claims.

Although the court acknowledged that Houston only engaged in “minimal participation” of the interactive process with Salem, it didn’t change the end result: There was no evidence the reasonable accommodation Salem requested was a feasible reasonable accommodation for the company to make.

Without any evidence the extra leave time was a “feasible” accommodation for the company to make, the court was able to dismiss the failure-to-accommodate claim. And because Salem couldn’t prove that enforcing a six-month leave limit was a retaliatory action, that claim was dismissed as well.

Are auto-termination policies OK?

A pro-employer ruling in an ADA leave case is always welcome news for HR pros, but the company here actually was very lucky to end up in the position it did.

Reason: The EEOC found the hospital’s leave policy unlawful, and the court that ruled in the hospital’s favor did criticize its engagement in the interactive process.

What saved the company here was the fact that, by not providing an estimation of a return date, Salem was essentially asking for indefinite — not extended — leave as her accommodation. A number of courts have ruled that indefinite leave is not a reasonable accommodation under the ADA. Had she been able to provide a return date, this case could have turned out a lot differently.

To avoid leaving to anything to chance, employers should always fully engage in the interactive process whenever an employee requests additional leave as an ADA accommodation.

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