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Since that time, the government has been surprisingly quiet on the issue of auto-termination policies; a fact that may indicate companies have heeded the advice of attorneys such as Gene Keefe and adjusted their policies.

Keefe, an adjunct professor of workers' compensation law at The John Marshall Law School in Chicago and founding partner of Keefe, Campbell & Associates, offered his thoughts about the case and the lessons learned.

A: The suit alleged Sears maintained an inflexible workers' comp leave exhaustion policy and terminated employees instead of providing them with requested reasonable accommodations for their disabilities, arguably in violation of the ADA. It arose from a charge of discrimination filed with the EEOC by a former Sears service technician, John Bava, who was injured on the job and went out on workers' comp. He was physically unable to resume his work duties but requested lighter duty jobs for which he said he was qualified, which Sears refused.

The problem for Bava was Sears' auto-termination policy, which said workers out on leave for a period of one year would be terminated. He was arguably a qualified individual with a disability and required reasonable accommodation. It appears Sears refused to accommodate while he was off to allow him to return to work and get off temporary total disability.

Please note the inverse -- employers are struggling with injured workers to get off leave and come back to work -- is much more common. This is the first time we have ever seen an injured worker fight to try to be accommodated and come back to work sooner rather than later.

Q: In light of the settlement, do you think it is possible to have an auto-termination policy that doesn't violate the ADA?

A: A pure auto-termination policy basically says they have to fire you. It's always an issue if you make exceptions to pure auto-termination.

Q: What do you suggest employers do?

A: Create a blended or panel auto-termination system, comprised of a labor representative, management representative, and one other person. When a worker is off for a certain period of time, have the panel bring up possible termination for review before the final termination decision. This takes out the "auto" part but can still lead to either termination or accommodation, if requested, to allow the worker to return to modified duty consistent with the ADA.

Look at everybody's situation. That would allow the company to address the situation. Say, "OK, you're asking for accommodation. If you have concerns, come to us and we'll evaluate the situation or else you'll be terminated."

Basically, the idea is to create your defense case-in-chief to any claim for retaliatory discharge or ADA violation.

Q: Do you always have to fire the replacement worker when you return the injured worker to his job with accommodation?

A: No, if you have lots of work, you can keep both workers. However, if you don't, it may be much harder.

Q: If an injured worker is off for the entire auto-termination period and doesn't request accommodation until after she has been terminated, what is your advice?

A: Document everything. Tell them you will follow your policy and it is too late. Confirm they can now apply for any open position and your company will address and respond to their ADA accommodation request.

Q: Let's say the injured worker is fully recovered to maximum medical improvement during the auto-termination period and then aggravates the injury at a later time, again losing a substantial time from work. What would you advise?

A: Follow your personnel policies on the auto-termination program.

Q: Has the government gone after other companies' auto-termination policies since this case?

A: No. We watch constantly, and we haven't seen any other cases at all since then. Auto-termination has dropped off the radar. I think people may be adjusting those types of personnel policies.

Read more at the WorkersComp Forum homepage.

November 22, 2010

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