Sixth Circuit Upholds Maximum Leave of Absence Rule Against ADA Challenge

Last month, the Sixth Circuit Court of Appeals affirmed summary judgment for the Columbus City Schools on a disability discrimination claim brought by a janitorial employee who did not request to return to work until more than two years after beginning a disability leave.  Wheat v. Columbus Board of Education, No. 15-3824 (6^th Cir. 2016).  The School’s bargaining agreement contained a provision limiting all leaves of absences to two years and the plaintiff was reminded of that several times.   She sought to return to work with a reasonable accommodation several months after the expiration of the two-year period and was terminated.  The Court found the rule to be reasonable and a non-discriminatory reason to terminate employment.  The reasonable accommodation claim failed because she did not seek it before the expiration of the two-year period.

According to the Court’s opinion, the plaintiff began a medical leave on August 9, 2009 for a shoulder injury she incurred on the job after she had already exhausted her vacation and sick leave days.  Each time she sought an extension of her medical leave, the Board reminded her about the two-year limit.  When the plaintiff learned that the School viewed her as ineligible to return to work, she sent a letter in March 2012 indicating that she planned to return to work on March 26, but required a reasonable accommodation. Four days later, the School notified her that she was being terminated according to the two-year rule.  Both the EEOC and OCRC found no probable cause of discrimination.

The Court found the rule to be reasonable and more generous than the one-year policy utilized by many employers. It even cited a case noting that few medical leaves longer than 18 months would be reasonable.  The plaintiff claimed that the rule was pretextual because the School had approved two of her extensions after the expiration of the two year period and had done so for 18 other employees as well.   The  School explained that those extensions had been a mistake based on a misunderstanding of Ohio workers compensation and that all of those employees were similarly terminated when the School’s misunderstanding was corrected.

The plaintiff also argued that the lack of advance notice of her termination reflected pretext.  However, the Court found that she was not entitled to prior notice of her termination and, in any event, had received it when she was reminded about the rule with each extension she received.

Importantly, the Court rejected her failure-to-accommodate claim because she did not seek any reasonable accommodations within the two-year period.  The School was not required to exempt her from the two-year rule in order to grant a reasonable accommodation or as an accommodation.

The Court also rejected her challenge the School’s no-restrictions return-to-work policy because she never attempted to return with restrictions during the two-year period and because the School’s letters to her indicated that they would consider permitting her to return with restrictions.  

Finally, the Court rejected the plaintiff’s attack on the School’s light duty program.  Employees with temporary injuries were assigned light duty with the aim of returning to full duty within 90 days.  Employees with permanent injuries were required to work with the Employee Relations Department.  The Court concluded that this did not violate the ADA.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Franklin County Appellate Court: Continued Receipt of TTD is Incompatible with Application to Return to Work from Disability Leave

Last week, the Franklin County Court of Appeals affirmed the denial of an administrative appeal from a SPBR decision which had denied reinstatement from a disability leave to a court probation officer who still received Temporary Total Disability (TTD) workers compensation four months after applying for reinstatement. Ewell v. Montgomery Cty. Court of Common Pleas, 2014-Ohio-3047.   “[E]vidence of the receipt of TTD at the time an employee applies for reinstatement from an IDS is reliable, probative, and substantial evidence that an employee is unable to return to work since the very statutory definition of TTD requires that the employee's treating physician continue to determine the employee is medically unable to perform his or her job duties.”

 According to the Court’s well-written opinion, the employee incurred a work related injury and began a disability leave in September 2008.   The employer then initiated a disability separation.   Under the employer’s policy, he had three years to seek reinstatement.    The employee applied for reinstatement on September 8, 2011 with a medical statement from his physician indicating that he could return to work without any medical restrictions.  Nonetheless, he continued to submit statements to the BWC indicating that he could not perform his job.  Accordingly, at the reinstatement hearing (held on January 18, 2012), his employer declined to consider the medical evidence that he submitted and, instead, focused on the information he continued to provide to the BWC about his inability to work.  He had received his most recent TTD payment just a week before the hearing.  Refusing to reinstate an employee who claims that he can return to work while the same employee provides information to the BWC that he cannot work was not an inappropriate decision.  It probably did not help the employee’s cause that he failed to seek reinstatement until the very last day of his leave period.

In fact, here, appellant continued to submit requests for TTD compensation to the BWC after he applied for reinstatement from his IDS. Appellant's treating physician reported to appellee that appellant was able to return to work as of September 7, 2011 for purposes of reinstatement from his IDS, but appellant reported to the BWC that, based on reports of medical evaluations conducted September 12, 13 and 14, 2011, appellant was unable to return to work for purposes of receiving continued TTD payments. Logically, these two positions are incompatible.

The Court found a similar case where the employee was still receiving disability pay through DAS to be factually distinguishable because the TTD standard differs from the DAS standard.

What was not discussed, or apparently argued, is how this case would turn out if the pro se employee had argued that he was entitled to reinstatement under the ADAA if his physician indicated that he could return to work and the employee requested a modification of the employer’s three-year leave cap. The EEOC has been filing suit against other employers with inflexible leave cap policies.  Of course, the federal courts have adopted similar arguments of judicial estoppel concerning the receipt of social security income while simultaneously arguing the ability to perform essential job duties.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.