Last week, a divided Sixth Circuit Court of Appeals reversed
an employer’s summary judgment on the failure-to-accommodate claim of an ER
nurse. King v.
Steward Trumball Memorial Hospital, No. 21-3445
(6th Cir. 4-7-22). After
calling off each shift for two weeks because of her asthma, the plaintiff
allegedly formally requested medical leave on May 19, only to be told that she
was ineligible under the FMLA. While she tried to have the
employer’s erroneous payroll calculation corrected, she was terminated on June
2 for failing to timely seek medical leave. Even after the payroll
records were corrected, she was still not eligible for FMLA
leave. Nonetheless, she was then retroactively given only two
weeks of non-FMLA medical leave, but was not reinstated. The Court
concluded that a request for a temporary medical leave was reasonable and could
be retroactively applied. The employer had a history of retroactive
application of leave requests and could not deem her request to be indefinite
when it was disputed whether she was given the chance to express the duration
of her alleged May 19 request. The employer failed to engage in the
interactive process after being put on notice of her leave request and failed
to accommodate her when it terminated her employment despite her eligibility
for a temporary non-FMLA leave of absence. Finally, the employer
could not suffer an undue hardship when the duration of her leave request was
within the scope of its own policies. Notably, the Court agreed that
her calling off work every shift for two weeks was not a request for
a medical leave of absence.
According to the Court’s opinion, the plaintiff ER nurse
suffered from seasonal asthma. She was familiar with the employer’s FMLA policy
requirement to call the outside administrator to request FMLA leave, but, when
she started having daily asthma attacks on April 28, did not attempt to use it
until May 19. Instead, she timely reported
her asthma attacks and inability to breathe before each shift or after she
reported to work as otherwise required by the attendance policy. Her supervisor does not recall having to cover
for her 14 consecutive absences or them creating a problem. When she finally applied for FMLA leave on May
19, in a typical non-comedy of errors for large and merging employers, the
plaintiff’s payroll hours were significantly miscalculated for the past year and
she was deemed ineligible for FMLA leave.
While she spent two weeks getting this resolved, and continued to timely
report off from work each day due to her asthma, she was terminated on June 2
for failing to timely request a leave of absence (coincidentally the date her
physician four days later said she could return to work). Ultimately, it was
concluded that she had only worked 1,170 hours in the past year, short of the
1,250 required by the FMLA. On June 22,
she was then retroactively granted non-FMLA leave for only two weeks, but her
termination was not rescinded.
She filed suit a few months later under the FMLA, ADA and
Ohio law. She apparently did not file an
EEOC Charge. The trial court dismissed all
claims on summary judgment and she only appealed the discrimination/failure to
accommodate claims under Ohio law (which generally follows federal law).
Although reliable and predictable attendance is generally an
essential job function, the Court’s majority rejected the argument that the
plaintiff’s inability to report to work automatically rendered her “unqualified.”
Therefore, the “general rule” espoused in Ford Motor —that “regularly attending work on-site is essential to most jobs,” . . .—cannot automatically apply where medical leave would enable the employee to return to work and perform the essential job duties. Indeed, “[a]pproved medical leave may be a reasonable accommodation and an inability to work while on such leave does not mean that an individual is automatically unqualified.”
Instead, the Court recognized that temporary medical leave
is generally a reasonable accommodation which must be evaluated for
reasonableness:
When assessing reasonableness, this Court considers: (1) the amount of leave sought; (2) whether the requested leave generally complies with the employer’s leave policies; and (3) the nature of the employee’s prognosis, treatment, and likelihood of recovery. . . .
While the courts have generally refused to set a maximum duration for the reasonableness of a leave request, “we have noted that
requests for indefinite leave are likely unreasonable.” While the Court’s majority recognized that the plaintiff had failed to request a
particular duration of leave prior to being terminated, it still found a
disputed issue of fact because the administrator had cut the May 19 conversation
short by deeming her ineligible for FMLA leave. The Hospital’s policy permitted up to 12 weeks
of FMLA leave, and one-year of non-FMLA leave (under the bargaining agreement)
and on June 5, she ultimately only requested five weeks of medical leave (from
April 28 through June 1).
The Court distinguished cases which sought unreasonable
requests for extended leave of over a year or beyond the employer’s policies or
which involved employees who would still not be able to perform essential job
functions after returning from medical leave.
The Court also held that it was reasonable for the plaintiff
on May 19 to seek medical leave retroactively.
The plaintiff had received disciplinary actions in the past which were rescinded
because of FMLA leave, etc. “Requests
for retroactive leave are not per se unreasonable, and we have recognized
employers’ practices of granting retroactive leave in unforeseeable situations
like this.” In light of the non-comedy
of errors in miscalculating her eligibility for FMLA leave – which took the employer
two weeks to resolve – the Court found “emergency retroactive leave would have
been reasonable.” This was particularly
true when the employer ultimately found that she was eligible for two weeks of
retroactive non-FMLA leave.
Notably, the Court did not construe the plaintiff’s repeated
call-offs as a notice of a need for medical leave:
Initially, when [the plaintiff] called in, she did not say that she needed medical leave. The district court rightfully concluded that these daily call-ins were not requests for an accommodation. However, beginning on May 19, [she] started calling in and telling the on-call supervisor (Bungard and others) that she “was trying to get a leave but [she] hadn’t gotten it yet so [she] was reporting off again for the next day.” . . . . A jury could find that the calls beginning on May 19 were requests for an accommodation because [she] explicitly told [the] supervisors that she wanted medical leave to handle her asthma flare-up . . . .
The Court also observed the existence of “some disagreement
over whether an employee can properly request an accommodation after her
employer terminates her,” but refused “to wade into this debate because the
record shows that she was trying to apply for medical leave well before her
termination on June 2.”
The Court also rejected the employer’s argument that its
knowledge of her attendance issues being caused by her asthma was not the same
as having knowledge of her having a disability because the plaintiff produced
evidence that created a disputed issue of fact precluding summary
judgment. In particular, the plaintiff explained each
time she called off or left work that it was because she could not breathe due
to her asthma. “While an employer may
not have knowledge of an employee’s disability merely because they took leave
in the past and the employer is aware that they have some medical issues,” she
had notified them repeatedly of the problem, putting them on notice of a potential
disability.
Because the plaintiff had put her employer on notice of her
need for an accommodation – a temporary medical leave, -- on May 19 and subsequent
conversations about trying to get the payroll error corrected, the employer had
the burden of engaging in the interactive process. The
trial court had found the May 19 request was not a request for an accommodation
because the administrator claimed that she had only inquired about her eligibility
for FMLA leave and did not formally request a medical leave. The plaintiff, of course, denied this –
making that issue a disputed issue of fact precluding summary judgment.
Despite having the duty to engage in the interactive process
after May 19, the Court found the employer failed to discuss the potential
accommodation in good faith. The administrator
failed to consider her eligibility for non-FMLA medical leave (even if she was
not eligible for FMLA leave) and allegedly refused to consider her request. In addition, the administrator and payroll
department failed to timely address or fix its own errors over her past year’s
working hours and, instead, inappropriately put the burden on the plaintiff to
get the error corrected. Moreover, the employer prematurely halted the
interactive process by terminating her employment while her leave request was
still pending.
An employer may not stymie the interactive process of identifying a reasonable accommodation for an employee’s disability by preemptively terminating the employee before an accommodation can be considered or recommended.” . . . . And if the employer terminated the employee before fully considering the request for an accommodation, then the employer may need to “reconsider the decision to terminate” the employee. . . . . [Her supervisor] knew that [she] was trying to apply for leave and that she needed FMLASource to fix her hours. Despite this knowledge, [he] terminated her for failing to timely seek leave, even though he knew that [she] was trying to do just that. Thus, [the plaintiff] sufficiently requested an accommodation, but the Hospital failed to engage in the interactive process in the wake of her requests.
The Court also found the employer failed to provide a
reasonable accommodation when – despite retroactively granting her non-FMLA
request on June 22 retroactively to May 14, it did not reinstate her. The partial retroactive grant of the medical
leave did not give her the full benefit of a medical leave because she was
never reinstated. “Thus, the post hoc approval of her request did not provide
all of the protections that medical leave is designed give.”
The Court also rejected the employer’s argument of undue
hardship:
When an employer believes that granting medical leave would cause undue hardship, courts first look to the employer’s leave policies. . . . . If the employer’s policies provided for the kind of leave that the plaintiff sought, courts will presume that granting the plaintiff’s request would not cause undue hardship. . . . For the same reasons as discussed above, . . .[her] request for five weeks of non-FMLA leave was well within the Hospital’s policies. It also fell below the prolonged leaves that this Court has found unduly burdensome. . . .Moreover, the Hospital allowed employees to seek emergency medical leave without advance notice, and even had policies in place for handling retroactive leave requests. . . . Anti-discrimination laws sometimes require employers to accommodate unexpected circumstances. Sudden illnesses and episodic flare-ups are, by nature, difficult to plan for and can be quite disruptive to those who fall ill and those around them. But that does not mean that accommodating a sudden flare-up will cause undue hardship merely because handling these situations requires more flexibility.
Additionally, the record shows that the Hospital did not actually suffer any undue hardship because of King’s five-week absence. The Hospital did not have any significant staffing disruptions, and Bungard does not remember having to pick up any of King’s missed shifts. Nor did King’s absence amount to excessive absenteeism under the Hospital’s disciplinary policies. King’s consecutive absences only counted as a single “occasion” and did not warrant any disciplinary action.
Finally, at the very least, the Hospital has not shown that keeping [her] job open while she applied for leave would have caused undue hardship. While keeping an employee’s job open indefinitely may cause undue hardship, . . . . keeping the job open long enough to allow the employee to apply for leave does not. Accepting [the plaintiff’s] version of events, the Hospital terminated [her] after she first sought leave from FMLASource and while she was trying to sort out her hours so that she could formally apply for leave. Thus, a jury could find that the Hospital did not meet its burden to show that granting King retroactive leave while keeping her job open would have caused undue hardship.
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.
