EEOC Sues FedEx Over “Fully Healed” Return-to-Work Requirement

By Elizabeth Torphy-Donzella - Shawe Rosenthal LLP

September 25, 2024

Today, I want to send an overnight letter to FedEx Corp. In that letter, I would suggest that paying attention to the competition (that is, UPS) often makes business sense and can save a company money.

Because, if FedEx had paid attention, it might have avoided a lawsuit filed against it by the Equal Employment Opportunity Commission (fondly known by us insiders as “the EEOC”).

You see, in 2017, the competition, UPS, settled a nationwide collective action brought against it by the EEOC based on a company policy that imposed automatic termination of employees after one year on leave for a disability that made them unable to do their jobs. According to the EEOC, failing to engage in interactive discussions with those folks before terminating them violated the Americans with Disabilities Act. That law requires an individualized determination before deciding no reasonable accommodation can be made that will enable an employee to perform the essential functions of the job. UPS paid $2 million to put the matter behind them, after 8 years of litigation, the cost of which doubtless made that amount a pittance by comparison!

Fast forward to October 2024 and the EEOC’s collective action against FedEx. The agency’s lawsuit is based on a policy it claims the Company maintained in 2019 that ramp transport drivers who were not “100 % healed after 90 days of light duty work (i.e. still had medical restrictions) were put on unpaid leave without any discussion of accommodations. That leave would expire after one year (sound familiar) unless the employee was on long-term disability. Presumably, termination was the outcome for those who still had disabilities at the time.

Assuming EEOC’s allegations are accurate, FedEx may have thought that employees whose essential job functions require them to load and unload the tractor trailers they drive with mechanical equipment simply by definition could not be accommodated for injuries impacting those duties. And in such cases, the assumption may have been that to allow any return to duty would only threaten further injuries on the job, which posed safety issues and, perhaps, workers compensation risks (I am totally speculating here, of course). By contrast, a generous period of leave would enable everyone to see if the physical limitations abated such that a safe return to work was possible.

Employers, take note here. While we typically preach that employees should be treated consistently to ensure that there is no discrimination, the ADA is different. By definition, the law requires that employees be treated differently and more favorably. No matter how obviously to you  it appears that an employee cannot be provided an accommodation that allows them to return to a physically demanding job, individualized determinations and interactive discussion MUST be pursued.

So, employers do NOT have inflexible policies about how much leave is enough leave. Do NOT, when receiving a request for accommodation that you are sure simply cannot be met, fail to have a discussion with the employee about alternatives. They (and you) may well find that there are NO other reasonably available options, but unless you have the discussion, the imaginings of a plaintiff’s lawyer or the EEOC may find a whole bunch of accommodations that were not considered. And do NOT conclude that providing some accommodation that is difficult but not an undue hardship creates a bad precedent for the future. The ADA requires individualized determinations.

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