Why it matters: According to a California federal court judge, employers are not required to provide indefinite leave as an accommodation for a disability under the state’s Fair Employment and Housing Act (FEHA). The case involved an employee injured on the job who took time off to recover. She returned to work with a temporary light-duty job, and her restrictions changed over the following months, with the employer purchasing her a motorized scooter. But a few months later, she went out on leave again. The employee exhausted her Family and Medical Leave Act (FMLA) time, and the employer repeatedly extended her leave under its own policy. When her doctor provided a note stating he was “unable to give a return date in the reasonably foreseeable future as the leave is indefinite,” the employee was terminated. Granting summary judgment for the retailer, the court said that California law does not mandate indefinite leave as an accommodation for a disability.
Hourvash Dezham began working as a sales associate for Macy’s in 1997. In July 2010, she injured her foot in a fall at work and Dezham was placed on a leave of absence at the request of her physician.
Dezham returned to work in August to perform modified/light-duty activities in the administrative support team based on a work restriction form completed by her doctor. The physician provided updated restrictions for standing and walking over the following months until Dezham returned to her position on the sales floor. To help with her duties, Macy’s purchased a motorized scooter for her use.
However, after five months of using the scooter, Dezham developed extreme back pain and her physician placed her back on a leave of absence in May 2011. By July, she had exhausted her FMLA leave; in October, all eligible leave under Macy’s leave policy was also used up. The employer granted Dezham multiple extensions of her leave through the end of the year.
In January 2012, Dezham’s doctor provided a note stating that he was “unable to give a return date in the reasonably foreseeable future as the leave is indefinite.” Macy’s then removed Dezham from the payroll, although the company informed her that she was free to reapply for a position in the future.
Dezham filed suit alleging that Macy’s engaged in violations of 19 state and federal laws, including the Age Discrimination in Employment Act, the Americans with Disabilities Act, and FEHA.
Working his way through the claims in response to Macy’s motion for summary judgment, U.S. District Court Judge David O. Carter tossed the majority of the plaintiff’s allegations, including those based on FEHA.
Focusing on the claims based on Dezham’s termination, the court agreed that FEHA does not require employers to provide an indefinite leave of absence for employees.
The plaintiff pointed to the note provided by her doctor, on which he also checked a box indicating “No” in response to a question of whether “the limitation affect[s] the employee’s ability to perform any of his/her job functions as shown on the attached Job Description?” Because the doctor checked the box, he should not have answered the other questions on the form, Dezham told the court, including the question where he indicated she could not return to work in the reasonably foreseeable future.
Macy’s proffered nondiscriminatory reason for terminating Dezham – the exhaustion of all of her leave of absence options coupled with the doctor’s note – was not rebutted by this reasoning, the court said.
Judge Carter disagreed that Macy’s took advantage of an error committed by the doctor, particularly as it was undisputed that Dezham did not return to work in January. Instead, he found that Dezham’s argument was “insufficient to create a genuine factual dispute” as the plaintiff failed to meet “her burden of offering specific and substantial evidence that Macy’s asserted non-discriminatory reason is a pretext.”
The plaintiff’s claims that Macy’s failed to offer her a reasonable accommodation in violation of FEHA similarly fell short. Such claims require not only that a plaintiff has a disability under the FEHA and that the employer failed to reasonably accommodate the disability, but that the plaintiff is also qualified to perform the essential functions of the position.
“Although a finite leave of absence has been held to be a reasonable accommodation, ‘[t]here are limits to how far an employer must go in granting medical leave,’ ” the court wrote. “Because Ms. Dezham ‘was not released by her doctor to return to work, she has not met the second requirement that she be qualified to perform the essential functions of the job.’ ”
Macy’s efforts over the 17-month period – granting a leave of absence, providing her with a temporary assignment based on her work restrictions, purchasing a scooter so that she could return to her sales position, and granting multiple extensions of leave when she again left work – established that “Macy’s accommodation of Ms. Dezham was reasonable as a matter of law,” Judge Carter wrote. “Only after Ms. Dezham had been on leave for approximately eight consecutive months and her doctor could not provide an anticipated return date in the reasonably foreseeable future did Macy’s decide to take her off the roll.”
The court granted Macy’s motion for summary judgment on the majority of the plaintiff’s claims, only permitting allegations based on unfair competition and failure to pay vacation time and wages to go forward.
To read the order in Dezham v. Macy’s West Stores, Inc., click here.