A recent case involving Wells Fargo Bank demonstrates the dangers for employers of failing to engage in the ADA interactive process or provide proper notice under the FMLA. In Molina v. Wells Fargo Bank, N.A. (D. Utah 3/29/17), an employee with epilepsy asked Human Resources if she could have time off because she was concerned that the stress of work might prompt her to have a seizure. HR responded by saying that her epilepsy was not a disability and that she did not qualify for leave under the FMLA. The employee appealed the decision to her manager who also denied her request but told her she might be able to take time off in three months. The employee resigned.

ADA ClaimWells Fargo argued that her claim of disability discrimination should be dismissed because she did not plead that her accommodation or request for leave was medically necessary. The court denied the motion stating that the employee did not have to plead that the accommodation was medically necessary, just that it was reasonable. The court said that Wells Fargo knew that she had epilepsy – a physical or mental limitation – and that she was requesting time off because of it. The court criticized Wells Fargo for simply denying the request rather than considering whether a reasonable accommodation could be provided.

FMLA interference. With regard to FMLA interference, Wells Fargo argued that the employee’s subjective belief that she needed time off without medical certification was not sufficient to state a claim under the FMLA. However, the court concluded that the employee was not required to submit medical certification until she was properly notified of her FMLA rights and properly requested to provide a medical certification, neither of which were done here. 

Lessons for Employers? Wells Fargo essentially put the cart before the horse. Employers may ask for medical documentation for both ADA reasonable accommodation requests and FMLA leave requests. However, they must do so at the proper time and in the proper way. When an employee asks for a reasonable accommodation or time off for medical reasons, employers should ensure that they comply with FMLA notice requirements and engage in the ADA good faith interactive process. Just because an employer may not want to allow an accommodation, it should not reply with a visceral denial. Rather, employees should ensure that they follow appropriate legal processes.   

Another lesson is that sympathetic employees and bad behavior by employers are a dangerous combination in litigation. Here, the employee had had a prior seizure at work (at Wells Fargo) several years earlier, and, in fact, the day after she resigned her employment when her accommodation request was denied, she had another seizure. Further, the employee also asserted claims for race discrimination (she is Latino) and for sexual harassment. She alleged in her complaint that her manager made racist jokes about Latinos, and that Wells Fargo managers regularly held parties “that involved alcohol, nudity, sexual behavior, dare games and inappropriate videos.” The employee did not attend these events.   Not a pretty picture at all.