In light of the EEOC's litigation over automatic termination provisions under the ADA (we've beaten you over the head with it here and here), employers generally feel as though they have no clue as to their legal obligations when it comes to providing a leave of absence as a reasonable accommodation under the ADA after an employee's 12 weeks of FMLA leave has been exhausted. Do they provide two more weeks of leave? Two months? 3.5 years? Unfortunately, there is no bright line rule, and despite signals from the EEOC that it intends to publish guidance on "leave" as a reasonable accommodation, it has only flirted with the issue.
In the meantime, employers rely on well reasoned court decisions to give us guidance as to the length of leave required under the ADA. Of course, each situation is different, as the ADA requires employers to conduct an individualized assessment of each employee to determine whether a reasonable accommodation would help the employee perform the essential functions of the job.
Here is one of those "well reasoned" cases for employers. A recent federal appellate court case makes clear that an employee is properly subject to termination when she cannot provide a reasonable estimate regarding when she will be able to resume all essential functions of her position.
Catherine Robert worked for Brown County, Kansas, as a supervisor of felony offenders. Her job included 18 “essential functions” as listed in her written job description, which included performing drug screenings, ensuring compliance with court orders, testifying in court, and “field work,” which consisted of visiting the homes of individuals who had been released from prison to assist them in their reentry into society. As a result, the work involved potentially dangerous situations.
Robert experienced severe pain in her back and hips, which later was diagnosed as sacroiliac joint dysfunction. Walking became impossible, and she needed crutches and a wheelchair to ambulate. Robert then required a lengthy leave of absence before returning. Robert resumed her job functions several months later, but soon thereafter, her symptoms returned. She performed partial duties for some time, and the other officers picked up some of her remaining duties. Ultimately, she required surgery and another extensive leave of absence.
Roberts' FMLA leave expired on July 5. (It appears the County also provided additional leave that, in total, amounted to about six months of leave.) On July 17, her doctor told her that she "might be able to walk with a cane in two to three weeks, and unassisted two weeks after that." Although it is unclear what medical information actually made it to the employer, the County terminated Robert's employment because she "was unable to return to work at full capacity after her leave ended." Robert later sued, alleging ADA discrimination (failure to provide a reasonable accommodation) and FMLA retaliation.
In finding for the employer, the Court outlined the employee's burden in showing that a leave of absence is "reasonable." First, the employee is required to provide "an estimated date when she can resume her essential duties." Second, the employee's leave request "must assure an employer that an employee can perform the essential functions of her position 'in the near future.'" The Court cut its analysis short, finding that Robert failed to meet the first prong:
There is no evidence in the record that Robert’s employer had any estimation of the date Robert would resume the fieldwork essential to her position . . . the doctor’s prediction that Robert could walk with a cane in a month’s time does not suffice to assure the county that she would then be able to perform site visits and other fieldwork . . .
At the time of her termination, the county did not have a reasonable estimate of when she would be able to resume all essential functions of her employment. As such, the only potential accommodation that would allow Robert to perform the essential functions of her position was an indefinite reprieve from those functions—an accommodation that is unreasonable as a matter of law. (My emphasis)
Consequently, the court found that Robert was not a qualified individual under the ADA, and it dismissed her ADA and FMLA retaliation claims. Robert v. Bd. of Commrs. of Brown Cnty. (pdf)
Insights for Employers
There are plenty of good takeaways for employers here:
- Like many others have done in similar situations, this court dismissed the employee's ADA claim in large part because she could not provide a reasonable estimation of her return to work. In other words, she was asking for an open-ended, indefinite leave of absence. Courts almost always will support an employer's right to terminate employment in instances like these. Other employers should take note -- when an employee cannot provide a reasonable estimate of when they will again be able to perform their essential job duties, their ADA claims skate on thin ice. Time and again, courts find that a request for an indefinite or open ended leave of absence is unreasonable as a matter of law.
- Me thinks the employer got a bit lucky here. Recall the reason given for Robert's termination: she "was unable to return to work at full capacity after her leave ended." Remember a basic tenet of disability law (and one of the EEOC's pet peeves): Requiring that an employee return to work 100% healed or that she return to "full duty" work can raise a host of problems under the ADA, since this position arguably does not assess the employer's need to provide a reasonable accommodation under the ADA. Before requiring an employee's "full duty" return, know your obligations under the ADA. See my post on this particular topic here.
- Accurate, robust job descriptions are a must. Why? They arguably saved Brown County here. The court relied heavily on the County's job description for Robert's position, which clearly supported witness testimony in the case. Notably, the Court gave great weight to the employer’s definition of the essential functions of the job, ultimately pointing to the County's written job description. This serves as yet another reminder of the need for regular review of job descriptions.
- When is enough plenty? I don't know. So, keep communicating with your employee. Don't shut the door on the reasonable accommodation conversation simply because the employee has requested an additional leave of absence. Keep in mind: the side responsible for the breakdown in communication as to reasonable accommodations typically is the party that loses the lawsuit. So, don't drop the ball. Keep talking.