October 23, 2014
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Posts of Future Openings Haunt Hospital in Equal Employment Opportunity Commission (EEOC) Americans with Disabilities (ADA) Suit
The EEOC has sued a hospital that granted an employee two months of medical leave and extended it for an additional four months, but denied her further medical leave and terminated her because her continued absence would cause it an undue hardship. EEOC v. Children’s Hospital and Research Center, Case No.”CV 13-5715 (N.D. CA. filed December 11, 2013).
After six months of leave, on July 10, 2012, the Charging Party provided a doctor’s note stating she could return to work without restrictions on September 1, 2012. According to the Complaint, the hospital denied the Charging Party additional leave and “fired her based on its belief that she would not be able to return to work on September 1, 2012 and that [her] continued absence would cause it undue business hardship.”
While the Complaint does not specifically allege that the hospital should have granted more leave from her regular position as an accommodation, it claims that the hospital “did not explore any alternative accommodations…, such as reassigning [Charging Party] her to several vacant Office Associate positions elsewhere in the hospital, for which it advertised in August and filled sometime in the fall of 2012.” The EEOC seems to be suggesting that even if it were an undue hardship to provide more leave to the Charging Party in her regular position, prior to terminating her, her employer should have considered reassigning her to a position that would become available before the Charging Party’s return to work date.
In its 2002 ADA Enforcement Guidance on Reasonable Accommodation and Undue Hardship, the EEOC said that a position is vacant if it is available when the employee asks for reasonable accommodation, or one that the employer knows “will become available within a reasonable amount of time.” In one example, the Guidance states that waiting for a position to become available for four weeks was a “reasonable amount of time” while waiting for a vacancy for six months was not.