What should an employer do when an employee's doctor releases him to return to work, but its own doctor says that the employee cannot safely return? A federal district court in Kansas recently addressed this issue, holding that an employer's reliance upon its own doctor's opinion that an employee could not return to work was a legitimate basis for discharging the employee after he had exhausted all of his available FMLA leave. Degraw v. Exide Technologies.
Terry Degraw worked for Exide Technologies as a senior material handler at its plant in Salina, Kansas. According to a written job description, his job involved manually handling batteries weighing from 5 to 80 pounds, occasionally lifting (with assistance) batteries weighing from 80 to 120 pounds, moving and carrying pallets weighing up to 40 pounds, and continuous standing, walking, or riding a truck during a 12-hour shift.
Degraw had a long history of back pain and injuries. As a result of continuing back problems, Degraw sought and was granted FMLA leave beginning in June 2006. He eventually exhausted his FMLA leave, and was granted additional leave while he underwent further treatment. On November 27, 2006, Degraw's chiropractor, Dr. Eisenhauer, released him to return to work. However, on December 7, 2006, Degraw saw Dr. Hanson, a physician under contract with Exide to perform examinations and determine whether employees on medical leave can return to work. Dr. Hanson had previously examined Degraw on several occasions. Dr. Hanson ordered an MRI. After reviewing the MRI results, Dr. Hanson recommended that Degraw avoid repetitive bending, stooping, lifting, twisting, climbing, and lifting more than 20 pounds. He noted that these restrictions were not consistent with Degraw's job as a material handler.
On December 21, 2006, Degraw met with Exide's human resources manager and environmental health and safety supervisor. During the meeting, Degraw said he felt fine, could "bench press 400 pounds" and do other heavy lifting. However, they determined that Degraw could not safely perform any available jobs at the Salina plant. Exide terminated Degraw's employment on January 23, 2007.
Degraw filed suit against Exide in U.S. District Court. In addition to claims of retaliatory discharge under state law, Degraw alleged that Exide fired him in retaliation for exercising his FMLA rights, and that it violated the FMLA by forcing him to take unnecessary medical leave and failing to reinstate him following his leave.
As to his retaliation claim, Degraw argued that Exide's assertion that it fired him because of his back condition was sufficient to establish retaliation under the FMLA. The Court rejected this argument, noting that Exide admitted only that it fired Degraw because it believed his back condition disqualified him from performing his job - not because it caused him to take FMLA leave.
Degraw also argued that Exide improperly relied upon the report of its own doctor, Dr. Hanson, rather than the release provided by his chiropractor, Dr. Eisenhauer. Among other things, Degraw noted that Dr. Hanson did not examine him in December 2006. The Court rejected this argument, noting that Dr. Hanson reviewed Degraw's MRI, and was familiar with his medical history, work history, and the job requirements for his position. The Court also noted that there was no evidence for Degraw's contention that Dr. Hanson issued his recommendation on instructions from Exide.
The Court likewise rejected Degraw's claim that Exide interfered with his FMLA rights. As to his assertion that the company unlawfully forced him to use FMLA leave, the Court noted that an employee who is forced to involuntarily take FMLA leave for non-FMLA qualifying reasons, and later denied legitimate FMLA leave because leave has been exhausted, may have a claim under the FMLA. However, because Degraw was never denied requested FMLA leave, the Court held that he could not maintain this type of claim. The Court also ruled against Degraw on his claim that Exide unlawfully failed to reinstate him following FMLA leave, noting that his right to reinstatement expired when his leave extended beyond the 12 weeks allowed by teh FMLA.
Insights for Employers
- As a general matter, the FMLA does not require an employer to reinstate an employee who is not able to perform the essential functions of his or her job.
- Even if an employee has a release from his or her own physician, nothing in the FMLA prohibits an employer from requiring an employee to visit its own doctor, at its own expense, to confirm the employee's ability to work. (For more on this, see this FMLA FAQ.)
- Employers should exercise caution when faced with conflicting doctors' reports regarding an employee's ability to work. Because his primary claim was for FMLA retaliation, Degraw's case focused not on the underlying factual question of whether Degraw could work, but on whether Exide genuinely believed that he could not. However, if Degraw had sought to return before exhausting his FMLA leave, his ability to work, not Exide's belief, would have been the central focus. In that case, the conflicting medical testimony could have been enough to allow him to take his case to a jury.