In a recent federal appeals court opinion, the Tenth Circuit held that an employer's granting of an employee's FMLA leave request did not mean that the company regarded the employee as disabled.
The case, Berry v. T-Mobile, Inc., involved a customer-service team manager. Barbara Berry had received favorable performance reviews for several years. When a new supervisor came onboard, one of his tasks was to evaluate the strength of the customer service department and to assess the strengths and weaknesses of the department's managers. The new supervisor found Berry to be lacking in certain management skills. Berry received numerous verbal counselings from the supervisor.
In October 2003, Berry approached her supervisor and told him that she was concerned that she might be terminated "any day." Her supervisor reassured her and stated that he felt she had made recent progress in the areas in which she needed to improve. Two weeks later, the supervisor sat in on one of Berry's coaching meetings and again advised that her coaching of her subordinates needed improvement. Shortly after this meeting, Berry approached her supervisor and stated that she needed a rest from work due to the extreme fatigue she was experiencing as a result of her multiple sclerosis. Berry had been diagnosed with MS twelve years earlier, and her supervisor knew this. The supervisor suggested to Berry that she apply for time off under the Family and Medical Leave Act ("FMLA"). Berry did so, and her application for FMLA leave was granted. The very next day, T-Mobile terminated her employment. T-Mobile contended that the decision to terminate Berry's employment had been made before she filed her FMLA leave request.
Berry filed suit. In addition to other claims, Berry alleged that she was terminated for having a disability. The district court granted summary judgment in favor of T-Mobile. Relying upon Berry's medical records, the district court found that although Berry's MS was an "impairment" under the ADA, it did not "significantly limit" her major life activities.
Under the ADA, an employee must establish that he or she (1) has a physical or mental impairment that substantially limits one or more major life activity; (2) has a record of such impairment; or (3) is regarded as having such an impairment.
On appeal by Berry, the Tenth Circuit considered whether the evidence established that Berry had a substantially limiting impairment or whether she was regarded as having one. The court found that the medical documentation failed to demonstrate that Berry was "substantially limited" in her major life activities. Berry contended that because T-Mobile was aware that she had MS and was aware that she was having extreme fatigue and cognitive lapses as a result of the MS, and because her supervisor recommended that she apply for FMLA leave, the company "regarded" her as having a disability. The Tenth Circuit disagreed. The court noted that "disability" is a term of art under the ADA. Furthermore, the court noted that the provisions of the FMLA are wholly distinct from the provisions of the ADA, and that a "serious health condition" under FMLA (which might entitle an eligible employee to take leave under FMLA) was not the same as an ADA "disability."
What This Means for Employers
The good news for employers is that this decision supports the concept that the purposes of the FMLA and the ADA are separate and distinct, and that eligibility for FMLA leave due to a "serious health condition" does not necessarily mean that the person has an ADA "disability." For example, under the FMLA, an otherwise eligible employee who breaks his or her legs while skiing and spends at least one night in a hospital would qualify for leave under FMLA due to a "serious health condition." Unless complications or continuing limitations resulted, the same person would probably not be viewed as having an ADA disability. Despite this decision, employers should be careful when assessing FMLA requests to couch inquiries and discussions in terms of the employee's "serious health condition" and should avoid using the term "disability."