individualized assessment

Cheers to the Seventh Circuit!

There may not be an issue that strikes more fear in the land of HR than how to deal with an employee who cannot return to work after FMLA leave expires. Is some additional leave beyond 12 weeks required? The answer is almost always ‘yes.’

But how much leave are we obligated to provide?

For ages, I’ve carefully counseled my clients on this issue, recognizing that the courts (and EEOC) have declined to offer any meaningful guidance on how much leave beyond FMLA employers are required to provide. Is it two months? Four? How ’bout six?

There has been no plausible answer. Until now.

In the matter of weeks, one rather influential federal appellate court has issued not one, but two decisions that set a far clearer path for employers to follow when deciding whether and how much additional leave they need to provide as a reasonable accommodation under the ADA. Let me quickly explain these cases and offer practical steps you should consider when analyzing an employee’s request for leave.

First Came the Severson case

Unless you’ve been securely wedged under a Human Resources rock over the past several weeks, you’ve been bombarded with alerts about the Severson case.

The facts of this case are fairly straightforward. Ray was employed at Heartland Woodcraft, and he suffered from a chronic back condition, which occasionally flared up and limited his ability to walk, bend, lift, sit stand, move and work. One such flare up caused Sugar Ray to take a continuous leave from work.  He asked for and was granted 12 weeks of FMLA leave.

Two weeks before his FMLA leave expired, Ray informed Heartland that his condition had not improved and that he would need surgery.  Heartland notified Ray the day before his surgery that his employment with Heartland would end when his FMLA leave expired the following day. However, it encouraged him to reapply for employment when he was able to return. As the story goes, he was ready to return several months later, but instead of reapplying, Ray filed an ADA lawsuit claiming, among other things, that his employer failed to provide a reasonable accommodation by granting him an extended leave of absence.

The ADA is Not a Leave of Absence Statute

In analyzing Ray’s ADA claim, the Seventh Circuit Court of Appeals acknowledged that a “brief” period of leave to deal with a medical condition could be an accommodation in some situations. But, the court also made clear that long-term leaves of absence fit securely within the “domain” of the FMLA, not the ADA. And in doing so, it set out a fairly bright-line rule:

Intermittent time off or a short leave of absence—say, a couple of days or even a couple of weeks—may, in appropriate circumstances, be analogous to a part-time or modified work schedule. . . But a medical leave spanning multiple months does not permit the employee to perform the essential functions of his job. To the contrary, the inability to work for a multi-month period removes a person from the class protected by the ADA.

Wow.  There is the new rule. A leave of couple of days or weeks may very well be required under the ADA. But a couple months?  No soup for you!  Severson v. Heartland Woodcraft (pdf)

As I shared with Law360 and Bloomberg BNA, it’s as if employers have been given a piece of the Holy Grail! For ages, we’ve searched for a more defined limit on how much leave an employer is obligated to provide under the ADA as a reasonable accommodation. This influential circuit court, at least, has defined this boundary for us.

Then Came the Golden case

Notably, weeks after the Severson case above was decided, the same appellate court doubled down on its position that the ADA was not a leave of absence statute and that leave beyond a couple of weeks simply is not required under the ADA.

Marytza’s case also is simple fact pattern.  She suffered from breast cancer, requiring surgery and an extended leave. As her 12 weeks of FMLA leave was about to expire, she sought an unspecified period of leave, which could have lasted as much as six months.  Her employer, the Indianapolis Housing Agency, declined to grant more than four additional weeks of leave. When Marytza could not return from work after 16 weeks off (12 weeks of FMLA leave and 4 additional weeks), her employer terminated her employment.

Again, the court went right back to its Severson decision issued weeks earlier, finding that

A multimonth leave of absence is beyond the scope of a reasonable accommodation under the ADA . . .[and that such a request] removes an employee from the protected class under the ADA.  Golden v. IHA (pdf)

Insights for Employers

These two cases are, in many respects, a game changer.  But what are the practical takeaways?

1. Where Can I Get Aggressive?  For my clients in Illinois, Wisconsin and Indiana (states covered by the 7th Circuit Court of Appeals), I clearly am being more aggressive in the manner in which I handle ADA leave requests. This court’s guidance is golden [no pun intended]: A few days or weeks of leave is likely required under the ADA. But one that is open-ended and spans multiple months simply is not.

2. For clients in other states, I’m using these cases as strong authority, but I’m not slamming the gas pedal.  Let’s remember: Engaging the Employee in the ADA’s Interactive Process is Essential.  Communicate during FMLA leave…after FMLA leave ends…and at all times before and in between!

When a client calls me for guidance on whether they can deny leave or terminate an employee after he or she has asked for the second or third extension of leave (after FMLA has expired), I ask the client for feedback on all the communications they have had with the employee regarding issues such as: a) the employee’s ability to perform his/her job; b) whether the employee likely will be able to return to work (and when); c) whether the requested leave will allow the employee to return to work immediately after the leave ends or very soon thereafter; d) whether there are other accommodations to help the employee return to work in a timely manner; and e) whether the employer has received any feedback from the employee’s physician about the above issues.  The EEOC’s decision to initiate litigation against an employer often hinges on whether the employer is to blame for the breakdown in the interactive process.  To minimize your exposure to liability, keep communicating with your employees!  The interactive process is essential.

3. Approach the Undue Hardship Analysis Carefully.  In an earlier post, I highlighted a presentation I gave some time back with EEOC Commissioner Chai Feldblum that analyzes the approach employers should take when determining whether a leave request poses an undue hardship.  In that post, I offer a number of criteria you should consider when making this determination.  I encourage you to use this analysis when determining whether a leave of absence is negatively impacting your operations.

4. A Quick Word of Caution about Intermittent Leave.  Notably, in both the Severson and Golden cases, the employee’s return to work date was unclear, which often is the case.  The court in Severson left open the possibility that a shorter leave period — indeed, intermittent leave — might actually be more palatable as a reasonable accommodation under the ADA.  All the more reason to tread carefully and conduct an individualized assessment of each leave request to determine whether a leave of absence is reasonable and effective in helping the employee return to work.

Credit: PDF of article reproduced with permission from Daily Labor Report (October 19, 2017). Copyright 2017 by The Bureau of National Affairs, Inc. (800-372-1033) <http://www.bna.com>

Photo credit: Warner Bros.

no restrictionsDo you know what happens when you maintain a policy or practice that requires an employee to return to work without restrictions or “100% healed”?  You pay.  A lot.

Just ask Brookdale Senior Living Communities. Brookdale employed Bernadine, who suffered from fibromyalgia. According to the EEOC, Brookdale refused Bernadine’s accommodation requests for a temporary modified work schedule, an ergonomic chair, and adjustments to the lighting in her office.

The EEOC also alleged that the Company required Bernadine to remain on “full FMLA until she [was] fully released.”  In other words, she could only return if she was able to perform her job without any restrictions or accommodations. Brookdale later terminated Bernadine, contending that the employee caused a breakdown in the reasonable accommodation process.

The EEOC later brought suit on behalf of Bernadine, claiming that the Company’s failure to accommodate and its alleged requirement that Bernadine return “fully released” violated the ADA.  Access the EEOC’s lawsuit here.

Of course, these are simply the EEOC’s allegations, and we’ll never get to the truth, since Brookdale and EEOC agreed to settle the case before any discovery occurred.  As part of the resolution, as explained in an EEOC press release, Brookdale is required to:

1.  Pay $112,500 to Bernadine as alleged back pay and alleged compensatory damages.

2.  Train all local employees and managers on the ADA’s requirements, including the need to provide reasonable accommodation to qualified individuals with disabilities.

3.  Report to the EEOC if there are any complaints of disability discrimination or retaliation.

What’s the Problem with a “Fully Released” Approach? 

Whether or not Brookdale engaged in the conduct alleged by EEOC, this scenario is instructive. When employers require that employees be “fully released” or “100% healed” before returning to work, the far majority of courts have found that these policies and practices discriminate against employees with disabilities who may be able to perform the essential functions of their position with or without a reasonable accommodation.  To be clear, the ADA requires employers to make an individualized assessment when deciding whether an employee can return.  When employers implement a “100% healed” policy, most courts find that employers improperly bypassed the individualized assessment process.  Under these policies, the employer simply presumes that the employee is unable to perform the duties of his or her job without properly considering whether the employee’s restrictions can be accommodated.  And such an approach raises the ire of the EEOC.

At a minimum, the problem with this practice is two-fold: 1) it bypasses the process requiring an employer to make an individualized assessment under the ADA to determine whether an accommodation can be provided to help the employee return to work; and 2) it increases the chance that the employer will have found to perceive the employee as disabled.

Insights for Employers

All too often, I come across my clients’ policies or practices that require an employee to return to work only after they are 100% healed or without restrictions.  Here’s my periodic reminder to employers: STOP!

Enforcing these types of policies or requiring evidence that employees can return to work “without restrictions” takes on a tremendous amount of risk.  Far too much risk, in my opinion.  Therefore, employers must re-evaluate these practices and implement policies that provide for individualized assessments of an employee’s ability to return to work with or without a reasonable accommodation under the ADA.  In light of the EEOC’s recent litigation in this area, including the most recent one against Brookdale, this approach is imperative.

Naturally, this means employers also must do an effective job of obtaining medical information to which they are legally entitled so that they can make the most informed decisions about: 1) the employee’s ability to return to work; and 2) whether an accommodation may help the employee perform the job.  Thus, in the context of FMLA, employers should engage in a consistent and regular practice of requiring all employees returning from FMLA leave to provide a fitness-for-duty certification from their health care provider that confirms their ability to return to work and perform the essential functions of their job, with or without a reasonable accommodation, and inviting a conversation about what assistance they might require to return to work.  If you remember the report of my presentation with EEOC Commissioner Chai Feldblum last year, this communication is critical to remain compliant, and it should come early and often.