Request for FMLA Leave Can Serve as Request for ADA Accommodation

​The 6th U.S. Circuit Court of Appeals ruled that a registered nurse could pursue a claim under the Americans with Disabilities Act (ADA) against her hospital when it fired her after she requested Family and Medical Leave Act (FMLA) time off for an asthma flare-up, even though she was not eligible for FMLA leave.

The employee began working for Steward Trumbull Memorial Hospital as a registered nurse in 2002. Over the next five years, she worked in various departments until she ended up in the emergency department, where she worked from 2007 until her termination on June 2, 2017.

The plaintiff's asthma began worsening around 2013 and 2014 and was often triggered by stress and seasonal allergies, causing intermittent flare-ups and severe attacks that rendered her unable to work. She normally called in sick on days in which she had flare-ups.

The hospital maintained both a policy for FMLA leave and a policy for non-FMLA leave. Under the FMLA leave policy, an employee could receive up to 12 weeks of unpaid leave per year if the employee had worked at least 1,250 hours in the past year. An employee had to give the hospital 30 days' advance notice of foreseeable leave, and as much advance notice as possible of unforeseeable leave. Under the non-FMLA leave policy, an employee could receive up to one year of leave and had to submit a written request with medical documentation from a physician either two weeks before the date of the leave or as soon as circumstances allow.

The hospital used a third-party administrator to handle both FMLA and non-FMLA leave requests. Under the hospital's attendance policy, the hospital may discipline employees for excessive absenteeism after three separate occasions of absenteeism in one year.

Between 2016 and 2017, the plaintiff worked three shifts each week from 6 a.m. to 6:30 p.m. In April 2017, the plaintiff experienced a serious asthma flare-up. She reported for work on April 28, 2017, but had to leave after eight hours because of an asthma attack that left her unable to breathe. Over the next five weeks, she had severe asthma-related symptoms, including an attack on May 15 that sent her to the emergency room of the hospital for treatment.

On May 19, the plaintiff called the third-party administrator to request leave, but did not specify how much time she needed off. The third-party administrator believed that the plaintiff had worked only about 300 hours in the prior year and told her she was not eligible for FMLA leave. The plaintiff disagreed with its calculation of hours, and the third-party administrator told her to contact an HR representative.

While the plaintiff was trying to sort out her hours with HR, the hospital terminated her employment on June 2 for failing to apply timely for a leave of absence. On June 5, the third-party administrator updated her hours based on corrected time sheets from HR, which showed that she worked 1,170 hours in the past year, so she was still ineligible for FMLA leave.

The third-party administrator had a policy that limited retroactive application of leave requests to five days before the request was initiated. Because the plaintiff's first leave request to the third-party administrator occurred on May 19, 2017, the third-party administrator could grant non-FMLA leave only for May 15 through June 1. It denied her leave from April 28 to May 13, thus upholding the termination decision.

The plaintiff filed a lawsuit against the hospital for FMLA interference and retaliation, failure to accommodate and disability discrimination under the ADA and Ohio law. The hospital moved for summary judgment on all counts, which the district court granted. The plaintiff appealed only the decision to dismiss her failure to accommodate claim under Ohio law.

On appeal, the 6th Circuit considered whether the plaintiff had fulfilled her burden of showing that she requested an accommodation under the ADA. It determined that the hospital was aware of the plaintiff's severe asthma based on her calling in absent, and it found that the call to the third-party administrator seeking "leave" was broad enough to serve as an ADA accommodation request.

The 6th Circuit thus found that the plaintiff stated a valid failure to accommodate claim under Ohio law. It relied on an earlier precedent to allow the plaintiff to pursue full damages for her discharge based on this alleged failure to accommodate and ordered the claim to proceed to trial.

King v. Steward Trumbull Mem. Hosp. Inc., 6th Cir., No. 21-3445 (April 7, 2022).

Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.