Takeaway: Employers must conduct an individualized assessment to determine if they are obligated to provide additional leave as an ADA accommodation to someone who has exhausted FMLA leave or who is not FMLA-eligible. Third-party leave administrators can help with this process, but employers must establish clear lines of communication so that employers can provide input on the reasonableness of the leave request, managers are informed when leaves have been approved by the administrator and employees do not receive conflicting information.
An employer may have discriminated against an employee on the basis of her disability when it failed to grant a leave extension and instead fired the employee who had exhausted Family and Medical Leave Act (FMLA) time off and other approved leave, the 6th U.S. Circuit Court of Appeals ruled.
On July 11, 2016, a direct sales representative, with a record of strong performance, took leave under the FMLA for the birth of her child. She requested, and was ultimately granted, several leave extensions through Feb. 1, 2017, for postpartum depression.
The employer used a third-party leave administrator and advised the employee to communicate only with the administrator. The administrator verbally approved the employee's leave requests but each time was delayed in providing written confirmation.
On Feb. 3, 2017, the employee's doctor submitted a letter to the administrator indicating that the employee's return-to-work date was "unknown at this time" but that the employer should "expect April." That same day, the employee reached out to the administrator and asked for a 60-day leave extension. The administrator verbally assured her on several occasions that her leave would be approved and that her job was protected.
In reliance upon the verbal approval, the employee continued her leave. Without warning, on March 9, 2017, the employee received a termination letter from her employer, effective Jan. 10, 2017. Ten days later, the employee received another letter, this time approving her most recent leave extension request. Unbeknownst to the employee, in the intervening period, a representative of the employer's HR department had informed the administrator that the leave extension was "OK" with the employer.
The employee filed a lawsuit, claiming that her employment termination violated the Americans with Disabilities Act (ADA) because her employer failed to reasonably accommodate her disability. The district court applied the indirect evidence test of McDonnell Douglas and held that the employee was not otherwise qualified for her position with or without a reasonable accommodation because she could not perform any of her essential job functions as of the date of her termination, including attending work. The district court granted summary judgment in favor of the employer.
On appeal, the 6th Circuit determined that the employee's failure-to-accommodate claim should be analyzed under the direct-evidence test.
The appeals court examined whether the employee was otherwise qualified for the position with a proposed reasonable accommodation, at the time she would have returned to work. Based on her prior, solid work performance, there was no reason to conclude that her performance would have deteriorated when she returned. The court rejected the employer's argument that the employee was not qualified because attendance was essential, noting that the leave extension was a temporary accommodation and that it was possible she could have returned to work.
The 6th Circuit then considered the reasonableness of the requested accommodation. The court rejected the employer's argument that the leave was unreasonable because the doctor's letter was devoid of an explicit return-to-work date and refused to uphold a "per se" rule that leave of an indefinite duration could never be a reasonable accommodation.
Instead, the 6th Circuit found that there was evidence that the employer actually considered the leave reasonable, given the employer's conflicting statements and the third-party administrator's assurances to the employee. The court refused to allow the employer to use its failure to engage in the interactive process as a basis to argue that the accommodation was unreasonable.
The 6th Circuit reversed the district court's grant of summary judgment.
Blanchet v. Charter Communications LLC, 6th Cir., No. 21-5073 (March 8, 2022).
Linda B. Hollinshead is an attorney with Duane Morris LLP in Philadelphia.