Extending Leave Was Not A Reasonable Accommodation Under The ADA Where There Was A Lack Of “Certainty” About Return To Work Date

While employers generally accept that they cannot apply a maximum leave period after which employees are automatically terminated, they continue to struggle with how much leave must be provided as a form of accommodation under the ADA.  There is little dispute that leave for an indefinite period where the employee has a long term chronic condition is not a reasonable accommodation, but how much time must the employer give?  Is a month of extended leave reasonable?  Two months?  Four months?

The Eleventh Circuit Court of appeals recently took a step toward providing employers with guidance on the ADA’s requirements for job protected leave as an accommodation.  In Billups v. Emerald Coast Utilities Authority, the Court noted that the accommodation language of the ADA is written in the present tense – that is, whether an employee “can” (not “will be able to”) perform the essential functions of the job with or without accommodation.  As such, when an employee seeks job protected leave as an accommodation, the employee must show that “his requested accommodation would have allowed him to return to work “in the present or in the immediate future.”  An accommodation is therefore unreasonable if it would only allow an employee work at some uncertain point in the future.

 There is nothing particularly novel about affirming the denial of leave where the return to work date is unspecified.  In the Billups case, however, the Court addressed a situation where the employee’s condition was likely to be corrected at some point in the future.  In other words, it was undisputed that the employee’s restrictions were expected to be lifted but the issue was when.  Mr. Billups was provided with over six months of leave.  At that time of his termination his surgeon indicated that he “might” be able to return to work in another month but that he had to be evaluated again.  His physical therapy was “projected” to end in about a month as well.  The Court concluded that there was only a “possibility” Mr. Billups could return to work in a month but there was “no certainty” that he could do so.  Because of the lack of certainty the Court concluded that this was effectively an open ended request for sufficient time to ameliorate Mr. Billups’ condition and he therefore was not denied a reasonable accommodation.

 Employers must continue to exercise extreme caution in these situations.  While the Court in Billings focused on the lack of certainty about the employee’s return to work date, employers must be careful not to take this concept too far.  As those who practice in this area know, every situation is unique and must be treated as such.

Prior Entitlement to FMLA Leave Is Not A Free Ticket To Miss Work For Non-FMLA Covered Reasons

The U.S. District Court for the Middle District of Pennsylvania recently upheld an employer’s decision to terminate an employee under its policy against excessive absenteeism, in spite of the fact that the former employee had previously taken leave under the Family and Medical Leave Act (“FMLA”), because the absences at issue were not related to her FMLA qualified condition. See Bertig v. Julia Ribaudo Healthcare Grp., LLC, 2017 WH Cases2d 390378 (M.D. PA 2017).

The employee in this case worked as a nurses’ aid in a nursing home. She also was diagnosed with bladder cancer and asthma during her employment.  The employee completed the necessary FMLA paperwork relating to these conditions and took FMLA leave from May 29, 2012 to June 25, 2012.  However, during the next year, the employee missed an additional thirteen days of work.  According to the employer’s call-in records, the absences were for various reasons, i.e. foot pain, stress fracture in her foot, common cold, sore throat, etc.; however, none of the absences were related to either of her FMLA qualifying conditions.

The employer had a company policy which stated that termination may occur when an employee accrues seven absences within a twelve month period. After identifying that the employee had violated this policy with her thirteen absences, the employee was contacted and informed that she was being terminated for excessive absences.  The employee filed a complaint on November 19, 2015 asserting causes of action for interference and retaliation under the FMLA and disability discrimination and failure to accommodate under the Americans with Disabilities Act (“ADA”).  The employer subsequently filed a motion for summary judgment.

The Court analyzed the requirements for both FMLA interference and retaliation claims and found that the employee’s claims under both causes of action failed because the evidence showed that, although she was entitled to FMLA leave for medical issues relating to both the bladder cancer and asthma, her own stated reasons for the absences showed that the absences were completely unrelated to either of these medical diagnosis. Instead, the employee’s absences were due to foot pain, common cold, etc.  None of these ailments entitled the employee to FMLA leave.  Therefore, the Court held that the employee’s FMLA causes of action should be dismissed.

The Court next analyzed the employee’s claims under the ADA and determined that, although she qualified as a disabled person under the ADA, her claims failed because she failed to establish that the employer’s decision to terminate her was based on her disability. Furthermore, the Court found that the employee failed to request any additional FMLA leave, so there was no retaliation by the employer.  In addition, there was no evidence that the employee ever sought an accommodation from the employer for her disabilities.  Because no accommodation was ever sought, she could not bring a failure to accommodate claim under the ADA.

The takeaway for employers is that you aren’t prevented from following your policies and procedures against excessive absenteeism just because an employee has previously taken FMLA leave. If the employee’s reasons for the absences are not related to the FMLA qualifying condition, then you are entitled to proceed with your disciplinary procedures for excessive absenteeism.  The entitlement to FMLA leave is not a free ticket for missing work for non-FMLA covered absences.

Timing Is Everything: FMLA Claim Survives Summary Judgment Where Employer Began Auditing Employee’s Records The Day After FMLA Leave Request

Employees requesting, currently taking, or just returning from leave under the Family and Medical Leave Act (“FMLA”) can be terminated for legitimate reasons that are unrelated to their FMLA leave. This point is exemplified by Jennings v. Univ. of N.C., N.C. Ct. App., Case No. COA16-1031 (July 5, 2017), which was the subject of a prior post on this Blog.  In Jennings, the North Carolina Court of Appeals ruled that an employer did not violate the FMLA by proceeding with a disciplinary hearing and termination of an employee because of allegations of misconduct that arose prior to her FMLA leave.

Timing is everything in life, however, and the timing of an employer’s investigation of misconduct by an employee in relation to the employee’s request for leave is significant. The Western District of Missouri’s denial of summary judgment in Diamond v. American Family Mutual Insurance Company, Case No. 4:16-cv-00977 (Nov. 9, 2017), illustrates this point.  Diamond, a claims adjuster for American Family Mutual (“AFM”), met with his supervisor on February 12, 2015 for his annual performance review, which was positive.  During that meeting, Diamond told his supervisor that he was planning to take FMLA leave.  The next day, Diamond’s supervisor pulled phone records to investigate if Diamond had actually made calls that he reported making.  The supervisor testified the investigation was prompted by complaints in January and February 2015 from insureds and agents who reported they had not received follow-up calls or call-backs from Diamond.  After the supervisor determined that Diamond’s claim file entries were inconsistent with the report of calls made from his desk phone, Diamond was terminated for falsifying company records on February 24, 2015.

In denying AFM’s summary judgment motion, the court acknowledged that the FMLA does not prohibit an employer from terminating an employee for reasons unrelated to the FMLA, and the court also acknowledged that falsifying records is a lawful reason for termination. However, the court found there were issues of fact as to the reasons for Diamond’s termination, noting that Diamond’s phone records were pulled the day after he expressed his intent to take FMLA leave and that Diamond had received a favorable performance review the day before his records were pulled.

The Diamond decision serves as an important reminder that employers must be extremely cautious when disciplining employees who have recently requested, taken, or returned from FMLA leave.  While discipline is lawful if unrelated to the request, courts will be skeptical if there is evidence that the employer began looking for misconduct after the FMLA leave request was made.  Additionally, Diamond is a good reminder that employers should ensure that performance reviews are accurate and consistent with any concerns regarding an employee’s performance and conduct.

City of Santa Monica Minimum Paid Sick Leave Accrual Limits to Increase January 1, 2018

The grace period is over. Effective January 1, 2018, the City of Santa Monica’s minimum cap on accrued sick leave for eligible employees will increase from 40 to 72 hours for businesses with 26 or more employees. The accrual-cap for businesses with 25 or fewer employees will increase from 32 to 40 hours.

Santa Monica’s sick leave requirements have been in effect since January 1, 2017 under the City’s Minimum Wage Ordinance (the “Santa Monica Ordinance”). Under the Santa Monica Ordinance, the first year required a 32-hour accrual cap for small businesses and a 40-hour accrual cap for large businesses with the planned increase going into effect January 1, 2018. Read More

What Am I Doing Wrong?? Common FMLA Mistakes

What did I do wrong?” and “Am I doing this correctly?” are frequent questions from clients regarding FMLA administration. This is the eleventh in a series highlighting some of the more common mistakes employers can inadvertently make regarding FMLA administration.

Not properly considering when a medical recertification can, and should, be requested when an employee exceeds the anticipated frequency and/or duration of leave.

A frequent concern in administering FMLA leave is when employees exceed the estimated frequency and/or duration identified on the employee’s medical certification. The FMLA regulations provide, in part, that an employer may request medical recertification:

  • no more frequently than every 30 days and only in connection with an absence;
  • after the minimum duration of the condition expires, if the medical certification indicates the minimum duration of the condition is more than 30 days.

An employer may request recertification more frequently, however, if:  1) the circumstances described by the previous certification have changed significantly (e.g., the duration or frequency of the absence, the nature or severity of the illness, complications); or 2) the employer receives information that casts doubt upon the employee’s stated reason for the absence or the continuing validity of the certification.

In Norris v. Allison Transmission, Inc., No. 1:13-cv-01287-SEB-DML, 2015 U.S. Dist. LEXIS 10936 (S.D. Ind. Jan. 30, 2015), an employee alleged that his employer interfered with his FMLA rights when he was terminated for exceeding the frequency and duration of his estimated 3-4 days per month of leave. The employee took off approximately 15 days in one month. The employer requested recertification because the employee exceeded his approved frequency and duration of leave.  According to the employee, the nature of his wife’s serious health condition had changed.  The employee never submitted recertification paperwork, and was terminated for being absent beyond the approved time frame of the leave. The court determined that the employer acted in accordance with its rights under the FMLA to request recertification, and to subsequently terminate the employee based on his failure to provide the requested medical recertification.

In Edusei v. Adventist HealthCare, Inc., Civil Action No. DKC 13-0157, 2014 U.S. Dist. LEXIS 91956 (D. Md. July 7, 2014), an employee brought an FMLA interference claim against her employer after she was denied a five-day extension to her four week FMLA leave to care for her ill father.  The employer argued that the employee was only entitled to an extension of her FMLA leave if her father’s condition worsened.  The court decided that an individual’s serious health condition does not need to become more serious for an employee to be granted an extension of leave, and if the employer had reason to question the condition of the employee’s father, it should have requested recertification.

When an employee exceeds the estimated frequency and/or duration of approved FMLA leave, an employer should consider requesting a recertification before imposing any discipline. Failure to seek a recertification and instead imposing discipline in these situations may result in FMLA interference claims.


Seventh Circuit Holds that the ADA Is Still Not a Leave Statute

On October 17, 2017, on the heels of its landmark decision in Severson v. Heartland Woodcraft, the Seventh Circuit affirmed summary judgment in favor of the employer in its unpublished opinion in Golden v. Indianapolis Housing Agency, No. 17-1359 (7th Cir. Oct. 17, 2017), reiterating that “[a]n employee who needs long-term medical leave…is not a ‘qualified individual’ under the ADA.”  In Golden, the plaintiff – a fifteen year employee of the Indianapolis Housing Agency (“IHA”) –was diagnosed with breast cancer in November 2014.  After taking twelve weeks of leave under the FMLA, the plaintiff remained unable to return to work.  At that time, her physician described the plaintiff’s condition as “ongoing” and noted that she would be incapacitated “until released.”  Thereafter, IHA granted the plaintiff an additional four weeks of unpaid leave with the understanding that at the conclusion of those four weeks, she would be required to return to work or would be automatically terminated.

The day before the plaintiff’s additional four weeks of leave was set to end, the plaintiff requested an unpaid leave of absence of up to six months.  IHA denied the plaintiff’s request for leave and terminated the plaintiff’s employment the following day.  The plaintiff filed suit under the ADA and the Rehabilitation Act, arguing that IHA was required to provide her with an additional six months of unpaid leave as an accommodation for her disability.  The district court granted summary judgment for IHA and the plaintiff appealed.

The Seventh Circuit ruled that it was bound by its own precedent in Severson, in which it held that “[t]he ADA is an antidiscrimination statute, not a medical-leave entitlement.”  The Court held that “while [it] sympathize[d] with Golden’s plight,” “a request for six months of medical leave in addition to the twelve weeks required by the FMLA removes an employee from the protected class under the ADA and the Rehabilitation Act.”

In a concurring opinion, Circuit Judge Rovner reluctantly joined in the judgment of her colleagues, but decried a per se rule which would exclude an employee from seeking a multi-month leave of absence regardless of a showing of hardship to the employer, finding such a rule to be “nonsensical.”

Stay tuned, as it seems inevitable that the Supreme Court will eventually weigh in on the issue of whether, and to what extent, the ADA requires leave as an accommodation.

Plaintiff Who Could Get to Work On Time By Waking Up An Hour Earlier Was Not Entitled An Accommodation Allowing Her to Be Late.

Years ago, I had a legal assistant who was unable to get to work on time. I finally told her that she had to be in at 8:30 as that was when everyone else started their work day. Three days later, she appeared in my office, walked in and slapped a speeding ticket on my desk and insisted that I pay it because it was my fault that she was speeding to get to work on time. When I suggested that she leave home earlier she indicated that “that was not going to happen.” She ended up leaving shortly thereafter and I hadn’t thought about her since—until I read the recent decision from the U.S. District Court for the Western District of Pennsylvania in Colonna v. UPMC Hamot, (September 25, 2017).


In that case, the Plaintiff Jessica Colonna began working at the University of Pittsburg Medical Center’s (“UPMC”) busy medical practice in an administrative capacity in 2006. In 2014 she developed dry eyes and needed to take eye drops in the morning to allow her to see properly. Her work required her to be in attendance at 8:30 when patients began arriving. The problem was that she needed between 60-90 minutes between waking and driving for the drops to work and permit her to drive safely to UPMC and she just could not get there on time.


She was written up several times for tardiness and requested, as an accommodation, that her hours be adjusted so that she could comfortably make it to work on time. The employer considered the request and suggested instead that she wake up earlier each day. Her attendance did not improve (within a one month span she had been disciplined for late arrivals of 13, 9, 19, 28, 24, 15, 18, 37, and 13 minutes) and she was fired.  She sued. The Court granted summary judgment to UPMC.


The Court reasoned that the requested accommodation was not reasonable. “Here, Plaintiff requests an accommodation because her extremely dry eyes make it difficult for her to see when she wakes up in the morning, and she ‘really just need[s] maybe an hour leeway if needed to get my eyes to a point where I feel comfortable functioning/driving to work.’” The Court found that Colonna could safely drive to work by waking up earlier in the morning. Because her doctor confirmed that Plaintiff needed 60 to 90 minutes between waking in the morning and driving to be safe and because she lived ten-fifteen minutes from work “she would not have been required to wake at a prohibitively early hour to apply her ocular moisturizers and arrive to work by 8:30 am.” The Court distinguished Colonna’s case from one in which a plaintiff claims she is disabled because her vision fails at unpredictable hours or predictable hours when she is at work. “When an employee, as here, can manage and overcome her limitations with minor effort, she does not require an accommodation for purposes of the ADA. Because Plaintiff could perform the essential functions of her job without accommodation, a fortiori she was not entitled to an accommodation … and UPMC Hamot did not discriminate against her by denying an accommodation.” Sometimes the law and common sense do coincide.


Importantly, the Court also found that Colonna did not have a viable claim that UPMC failed to engage in an interactive dialog. “[A] review of the record reveals that Defendant acted conscientiously and in good faith throughout the process. … UPMC reviewed Plaintiff’s request for a reasonable accommodation three times, reopening her case each time she contacted the disability specialist or provided additional information about her health condition. [UPMC’s Disability Coordinator] called Plaintiff on three occasions to discuss her medical treatment and confirmed with [Colonna’s doctor] that an accommodation was not necessary because Plaintiff could perform her essential job functions simply by awaking earlier in the morning.” The Court also noted that UPMC did not penalize Colonna for late arrivals while they were engaged in the interactive process and offered to arrange for Plaintiff to ride to work with co-workers. “This good faith engagement and communication entitles Defendant to summary judgment.”

Even though it may have seemed like UPMC did not have to do anything, the fact that it engaged with Colonna in a good faith effort to resolve the situation, inured to its benefit. Maybe I should have paid my assistant’s ticket after all.

New Mexico Court Rules Employee Is Entitled To Nationwide Discovery in FMLA Case

On October 10, 2017, Judge Ritter issued the Memorandum Opinion and Order which granted a former employee’s Motion to Compel and held that the former employee was entitled to information from the company’s nationwide offices relating to other employees fired under the company’s 100% healed policy and other FMLA or ADA complaints.

Matthew Donlin (“Donlin”) worked as a general manager for Petco (the “Company”). During 2015, he began suffering “flare-ups” from his medical condition and ultimately took FMLA leave in February 2016.  In May, Donlin’s doctor cleared him to return to work, with certain limitations; however, the Company refused to let him return unless his doctor certified that he was 100% recovered.  Ultimately, Donlin’s employment with the Company was terminated after he failed to complete a reasonable accommodation package, which was a condition of his reinstatement.  Donlin subsequently filed suit against the Company alleging violations of the American with Disabilities Act (“ADA”) and the Family Medical Leave Act (“FMLA”).

During the litigation, Donlin issued requests for production and interrogatories to the Company seeking: (1) contact information for “all persons involuntarily terminated from Petco’s employ due to a failure to return to work” after FMLA leave, including all termination documents for employees who failed to request an accommodation or to certify 100% recovery; (2) contact information for all persons who after January 1, 2014 complained that Petco interfered with or denied rights under the FMLA or ADA, including documents regarding any claim and Petco’s investigation of it; and (3) information and documents concerning FMLA and ADA complaints made to a governmental agency or in court.”

The Company objected to each request on the grounds that the information sought was not relevant or reasonably calculated to lead to discoverable evidence, and that the request was overly broad and unduly burdensome because it was not reasonably limited to relevant circumstances of the employee’s employment, geography, or decision maker.

It is a general rule that evidence regarding an employer’s treatment of other employees is relevant to the issues of the employer’s discriminatory intent, whether there is a pattern of retaliatory behavior, or the employer’s credibility in its assertion of legitimate motives. Spulak v. K Mart Corp., 894 F.2d 1150, 1156 (10th Cir. 1990).  Typically this rule permitting the discovery of other employees’ complaints is limited to those that are within the same “employing unit or work unit.” However, this geographic scope may be expanded when the plaintiff shows that “there were hiring or firing practices and procedures applicable to all employing units.” Owens v. Sprint/United Mgmt. Co., 221 F.R.D. 649, 653 (D. Kan. 2004).

In granting Donlin’s Motion to Compel, the Court found that because it appears that all Petco employees are subject to the same leave of absence policies, and decisions on granting leave were made by the corporate team that was not specifically located within Donlin’s “employing unit,” the employee was entitled to relevant company-wide documents. As a result, the Company was ordered to respond to the interrogatories and requests for production at issue, and pay Donlin’s attorneys fees and costs associated with filing the Motion to Compel.

What Am I Doing Wrong?? Common FMLA Mistakes

What did I do wrong?” and “Am I doing this correctly?” are frequent questions from clients regarding FMLA administration.  This is the tenth in a series highlighting some of the more common mistakes employers can inadvertently make regarding FMLA administration.

Not properly considering treatment for substance abuse as FMLA-qualifying.

Substance abuse is a workplace issue that can quickly become complicated. Employers should keep in mind that substance abuse can be a serious health condition (SHC) under the FMLA if the requirements for a SHC are otherwise met (for an overview of those requirements, see our earlier post in this series discussing what constitutes a serious health condition).

FMLA leave may only be taken for substance abuse if the treatment is administered by a heath care provider, or by a provider of health care services on referral by a health care provider. FMLA leave is for treatment of the employee’s substance abuse. An employer need not tolerate absences because of the employee’s use of the substance, which would not qualify for FMLA leave.  While an employer may not take action against an employee because the employee exercised FMLA rights, an employer can take employment action for substance abuse if the employer has an established policy, applied in nondiscriminatory manner that has been communicated to all employees and which provides under certain circumstances an employee may be terminated for substance abuse.

In Green v. Baptist Hospital, Case No. 3:15cv124 (D. Fla. Nov. 28, 2016), an employee alleged that his employer interfered with his right to take FMLA when he was fired. The employee took 3 weeks of FMLA for substance abuse treatment, and about two weeks later relapsed. Plaintiff was a “no call/no show” from work for five days, and he was fired on the sixth consecutive day of unexcused absence for his “no call/no shows.”  The court decided that the employer properly terminated the employee, who testified that he was absent because he was “probably just getting high.” The court found that the employer acted properly by allowing the employee to previously take FMLA leave to receive treatment, and the employer was entitled to terminate the employee for the “no call/no show” behavior because no FMLA protection existed for the situation where an employee was absent due to his substance use.

In Holloway v. D.C. Government, Case No. 09-512 (D.D.C.  Dec. 30, 2013), the court denied an employer’s motion for summary judgment of an employee’s FMLA interference claim. The employee entered a long-term substance abuse treatment program, and informed his employer of his need to take FMLA leave for successful completion of the program. However, the employer failed to respond to the employee’s leave request and ultimately terminated the employee after the employee did not report to work. The court decided that the employee had provided his supervisor with adequate notice of his desire to take FMLA leave to attend a substance abuse program, a valid use of FMLA.

Employers must balance goals of a safe and healthy work environment with the understanding that substance abuse can be a serious health condition that might require FMLA leave. Employers should keep in mind that an employee may also take FMLA leave to care for a covered family member who is receiving treatment for substance abuse.