In a continuation of a recent post that analyzed what constitutes
a “reasonable accommodation” under the Americans With Disabilities Act, this
post summarizes a great article by the FMLA Insights blog that looks into the
extent a leave of absence constitutes a reasonable accommodation. The article
looks at the fact that employers “generally feel as though they have no clue as
to their legal obligations when it comes to providing a leave of absence as a
reasonable accommodation under the ADA after an employee’s 12 weeks of FMLA
leave has been exhausted”.
The article states that in the absence of any comprehensive EEOC
guidance on the subject, employers must rely on court decisions to formulate
company policies. Although the ADA requires an employer to conduct an
individualized assessment of each employee to determine whether a reasonable accommodation
would help the employee perform the “essential functions” of the job, there are
some court decisions that allow employers to extrapolate rules for dealing with
employees under the ADA.
In the case in question, a federal appeals court decision
held that an employee can be terminated if she cannot provide a reasonable
estimate of when she will be able to resume all essential functions of her
position. In the case in question, Catherine Robert worked as a supervisor of
felony offenders, a job that involved visiting individuals who had been
released from prison and ensuring their compliance with court orders. Robert
began experiencing intense pain in her hips and back, and the condition
required her to take two extended leaves of absence for surgery and
rehabilitation. After Robert’s FMLA leave expired, her doctor told her that in
2 to 3 weeks she might be able to walk again with the help of a cane. The
county terminated her employment because she was “unable to return to work at
full capacity after her leave ended”.
The court went through the steps necessary to show an
employee’s leave of absence was reasonable. First, the employee must provide an
estimated date when she can resume her essential duties. Second, the employee
must assure the employer that the employee will be able to resume her duties in
the near future. In Robert’s case, the court found that she had not given the
county the necessary estimated date, and that as such, the only accommodation the
county could have given her was an “indefinite reprise”- an accommodation that
is per se unreasonable under the ADA.
The FMLA insights blog provides a few helpful takeaways, and
I figured it would be best to provide their complete text:
- Like many others have done in similar situations, this
court dismissed the employee’s ADA claim in large part because she could
not provide a reasonable estimation of her return to work. In other words,
she was asking for an open-ended, indefinite leave of absence. Courts
almost always will support an employer’s right to terminate employment in
instances like these. Other employers should take note — when an employee
cannot provide a reasonable estimate of when they will again be able to
perform their essential job duties, their ADA claims skate on thin ice.
Time and again, courts find that a request for an indefinite or open ended
leave of absence is unreasonable as a matter of law.
- Me thinks the employer got a bit lucky here. Recall the
reason given for Robert’s termination: she “was unable to return to
work at full capacity after her leave ended.” Remember a basic tenet
of disability law (and one of the EEOC’s pet peeves): Requiring that an
employee return to work 100% healed or that she return to “full
duty” work can raise a host of problems under the ADA, since this
position arguably does not assess the employer’s need to provide a
reasonable accommodation under the ADA. Before requiring an employee’s
“full duty” return, know your obligations under the ADA. See my
post on this particular topic here.
- Accurate, robust job descriptions are a must. Why? It
saved Brown County here. The court relied heavily on the County’s job
description for Robert’s position, which clearly supported witness
testimony in the case. Notably, the Court gave great weight to the
employer’s definition of the essential functions of the job, ultimately
pointing to the County’s written job description. This serves as yet
another reminder of the need for regular review of job descriptions.
4. When is enough plenty? I don’t know. So, keep communicating with your
employee. Don’t shut the door on the reasonable accommodation conversation
simply because the employee has requested an additional leave of absence. Keep
in mind: the side responsible for the breakdown in the reasonable accommodation
conversation typically is the party that loses the lawsuit. So, don’t drop the
ball. Keep talking.