UPS Delivers $2 Million to Settle ADA Inflexible Leave Case

The EEOC continues to ring the “inflexible leave policy” settlement register despite a 2014 opinion authored by then-10th Circuit Judge, now Associate Justice of the Supreme Court, Neil Gorsuch that such policies are neither inherently unlawful nor retaliatory, and can “serve to protect rather than threaten the rights of the disabled.” Hwang v. Kansas State University, (10th Cir.  2014).

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The EEOC had claimed that UPS violated the ADA by failing to provide reasonable accommodations and by maintaining an “inflexible leave policy, whereby the company fired disabled employees automatically when they reached 12 months of leave, without engaging in the interactive process required by law,” according to the EEOC’s press release  about the settlement.

 

In Hwang, the plaintiff had exhausted her employer’s six month leave policy, requested more leave and alleged that her employer’s denial of her request denied her a reasonable accommodation in violation of the Rehabilitation Act. Continue reading

In Reverse “Flu With Your Fries” Case, Employer Terminates Employee for Refusing Vaccination

“Flu with your fries?” has become a mantra for paid sick leave supporters, suggesting that employees without paid sick days will come to work sick and infect customers and co-workers.  In this scenario, the employee is the potential infector.french-fries

In perhaps the first reverse “flu with your fries” case, a hospital employer terminated a nurse who refused to comply with a policy requiring all clinical employees to get the Tdap (Tetanus Diphtheria Acellular Peru) vaccination to protect them from being infected by a patient(s). In this scenario, the employee is the potential infectee.

The court dismissed the nurse’s ADA discrimination and failure to reasonably accommodate claims but gave her the opportunity to re-plead those claims, as well as a state disability claim.  However the court cautioned that it considered “her claim tenuous, at best, and [it] will not hesitate to summarily dismiss the amended complaint if the deficiencies identified herein are not rectified.” Ruggiero v. Mount Nittany Medical Center (M.D. Pa, May 15, 2017).