Showing posts with label medical leave. Show all posts
Showing posts with label medical leave. Show all posts

Wednesday, August 22, 2018

Sixth Circuit Rejects Full-Time Work Schedule as Presumptive Essential Job Requirement Under the ADA


Last month, the Sixth Circuit reversed an employer’s summary judgment on a claim brought under the ADA, FMLA, and Pregnancy Discrimination Act on the grounds that the employer failed to prove that full time employment was an essential function of the position that precluded the plaintiff from working half-time for six more weeks while she recovered from post-partum depression.   Hostettler v. College of Wooster, No. 17-3406 ((6th  Cir. 7-17-18).  The employer made a few hair-brained decisions:  denying a temporary extension of a requested medical leave (i.e., part-time schedule) right after giving the plaintiff a glowing performance evaluation.   It also failed to engage in the interactive process once it realized that her modified work schedule was more trouble than it was worth and that it questioned her need for leave.   Accordingly, as with another recent Sixth Circuit decision, the Court concluded that an employer’s rescission of a reasonable accommodation constitutes direct evidence of disability discrimination, making the McDonald-Douglas burden shifting analysis inappropriate.  “An employer cannot deny a modified work schedule as unreasonable unless the employer can show why the employee is needed on a full-time schedule; merely stating that anything less than full-time employment is per se unreasonable will not relieve an employer of its ADA responsibilities.” 

According to the Court’s opinion, the plaintiff was hired when she was four months pregnant and worked full time until she delivered.  She requested and was given more than twelve weeks of maternity leave, even though she did not qualify under the FMLA.  When her separation anxiety and post-partum depression precluded her from returning to work full-time, she was granted a reasonable accommodation of returning to a half-time schedule for approximately ten weeks.   She received a glowing performance evaluation in June.  In July, she submitted another certification indicating that she required approximately another six weeks of half-time work before she could return full-time. The next day, she offered to stay a couple hours later each day.  The day after that she was fired.   Although there was evidence that she had timely completed all of her assignments and had even been working a little from home, her boss was very stressed from picking up the slack and was concerned about work that was not getting done at all, like recruiting, lunch trainings, etc.  The plaintiff was not the only employee on medical leave and her boss was often the only person remaining in their small office.  The department was also starting a new online benefits enrollment system that month, which was taking the supervisor’s time as well.  However, a replacement was not hired until October – a month after the plaintiff likely would have returned to full-time work.

The employer argued that the employee only wanted to work part-time for the summer and that the only limitations she experienced with transitory and brief panic attacks.  However, the Court noted that she had been prescribed anti-depressants and had witnesses describe symptoms that went beyond the occasional brief panic attacks.

The “crux” of the case was whether the plaintiff was qualified for her position with or without a reasonable accommodation.

A job function is essential if its removal would fundamentally alter the position. . . . Put another way, essential functions are the core job duties, not the marginal ones . . . .

This analysis does not lend itself to categorical rules—it is “highly fact specific. . . . Although this court has stated that “[r]egular, in-person attendance is an essential function” of most jobs, EEOC v. Ford Motor Co., 782 F.3d 753, 762–63 (6th Cir. 2015) (en banc), it is not unconditionally so; courts must perform a fact-intensive analysis.  In determining what functions are essential, courts may consider as evidence—among other things—the amount of time spent on a particular function; the employer’s judgment; “written job descriptions prepared before advertising or interviewing” for the position; and the consequences of not requiring the employee to perform the particular function.  29 C.F.R. § 1630.2(n)(3).  Although the employer’s judgment receives some weight in this analysis, see Williams v. AT&T Mobility Servs., 847 F.3d 384, 391–92 (6th Cir. 2017), it is not the end-all—especially when an employee puts forth competing evidence.

The Court found that the plaintiff had created a factual dispute about whether full-time work was an essential function of her position.  A co-worker supplied an affidavit that there was no work within the department which was not being accomplished.  The plaintiff had just weeks earlier received a positive performance evaluation which confirmed that she was performing her job. Indeed, the plaintiff had never been criticized about her work.   (The Court seemed oblivious to the fact that no rational employer is going to criticize an employee for not performing work while on medical leave).  When asked, her boss could not identify a particular task which was not getting performed.

On its own, however, full-time presence at work is not an essential function.  An employer must tie time-and-presence requirements to some other job requirement.  To be sure, [the employer] cites language from this court’s cases that, when viewed independently from the facts of the cases, supports the college’s position.  But those cases nevertheless carried out a fact intensive analysis of actual job requirements.

The Court continued:

In sum, full-time presence at work is not an essential function of a job simply because an employer says that it is.  If it were otherwise, employers could refuse any accommodation that left an employee at work for fewer than 40 hours per week.  That could mean denying leave for doctor’s appointments, dialysis, therapy, or anything else that requires time away from work.  Aside from being antithetical to the purpose of the ADA, it also would allow employers to negate the regulation that reasonable accommodations include leave or telework.  29 C.F.R. § 1630.2(o)(2)(ii).   

[The employer] may have preferred that [the plaintiff] be in the office 40 hours a week.  And it may have been more efficient and easier on the department if she were.  But those are not the concerns of the ADA:  Congress decided that the benefits of gainful employment for individuals with disabilities—dignity, financial independence, and self-sufficiency, among others—outweigh simple calculations of ease or efficiency.  To that end, the ADA requires that employers  reasonably accommodate employees with disabilities, including allowing modified work schedules.  An employer cannot deny a modified work schedule as unreasonable unless the employer can show why the employee is needed on a full-time schedule; merely stating that anything less than full-time employment is per se unreasonable will not relieve an employer of its ADA responsibilities.  

The Court put limits on his holding:

[The plaintiff] never claimed, nor do we hold, that she had a right to perform her job on a part-time basis indefinitely.  If she had, we might be reviewing a closer case; one in which Wooster at least would have had the opportunity to show that such an accommodation was unreasonable.   . . . But that is not the case here.  Here, [the plaintiff] introduced sufficient evidence to create a dispute of fact over whether her moderate, time-limited accommodation allowed her to perform the essential functions of her position.

The Court also found a disputed issue of fact as to whether the employer had properly engaged in the interactive process. The trial court found it had by having four separate conversations with the plaintiff about the need for her to return to a full-time schedule, but the plaintiff asserted that it had only been discussed once and the employer never responded to her offer to work 6 hours/day.

The Court also reversed summary judgment on the plaintiff’s PDA claim because the trial court had concluded that the plaintiff’s refusal to work full-time was a legitimate and nondiscriminatory reason to discharge her that was not disproven as pretext.  However, the Court had already rejected the full-time work argument and found that the plaintiff had produced sufficient evidence of pretext by questioning whether that was the actual reason for her termination and showing disparate treatment by the longer medical leaves taken by two other employees for non-pregnancy reasons.

Notwithstanding the fact that no reasonable human resources employee could have believe that she was covered by the FMLA, the Court resurrected her FMLA claim by permitting her to pursue an equitable estoppel theory on the grounds that that the employer treated her leave as through she was covered by the FMLA even though she had only worked four months before she began her leave and had been given well more than 12 weeks off work before returning on a part-time basis.

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

Monday, April 4, 2016

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 (6th 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.