CHICAGO — The U.S. Equal Employment Opportunity Commission (EEOC) is moving forward with a lawsuit against an employer who terminated an ill employee after granting her leave for approximately 16 weeks. The employee was then fired an additional three weeks later.

The federal lawsuit was filed against Illinois Action for Children, the employer of a woman who had requested leave to undergo breast cancer treatments. The commission's complaint claims the woman requested leave from June 2015 to Nov. 2015. The employer granted her leave through Sept. 30, a 16 week leave period, which is more than the 12-week maximum period of medical leave the Family Medical Leave Act requires employers to provide workers.

Although the employee allegedly was not officially terminated until Oct. 19, the EEOC still claims the employer violated the Americans with Disabilities Act. But this strict expectation of medical leave is not a surprise coming from the EEOC, said Elizabeth Odian, an attorney at Hinshaw & Culbertson LLP.

She said the recent legal action falls in line with the commission's 2017-2021 Strategic Plan in which the EEOC "has placed priority on qualification standards and inflexible leave policies that have the effect of discriminating against individuals with disabilities."

"Although not entirely clear from the complaint, it appears that, in this case, the employer may not have considered whether additional leave through a definite date (Nov. 2015) was a reasonable accommodation, which would be contrary to its obligation to engage the employee in the interactive process," Odian said. "It may also be that the employer did engage in the interactive process, but incorrectly determined - according to the EEOC - that the requested leave was not a reasonable accommodation."

While Odian said cases involving employers who refuse to extend employees' medical leave will continue, she also thinks there are ways employers can avoid becoming the next target of an EEOC lawsuit.

"I would advise employers to review their leave policies," she said. "If the policy provides that an employee will be terminated upon exhaustion of leave to which they are entitled, (such as) paid time off, FMLA leave, state-mandated leave or the like, the policy needs to be revised. 

"Going beyond written policies, employers should always consider extended leave requests on a case-by-case basis and engage in the interactive process to determine what reasonable accommodations would allow the employee to perform his or her essential job functions."

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