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An employee who did not respond to her employer's requests to return to work could not sustain claims under the Americans with Disabilities Act (ADA) or the Family and Medical Leave Act (FMLA).
The plaintiff, a former processor of Medicare claims for First Coast Service Options, was granted FMLA leave in January 2013 related to back pain from a car accident. When she returned on March 27, she gave her supervisor a note from her chiropractor that limited her to four hours of work a day for the next two weeks.
First Coast's HR department informed the plaintiff that any request to return on a reduced schedule would have to be supported by documentation from a physician and that the chiropractor did not qualify.
On April 1, the plaintiff told her supervisor that she would try to get a letter from a physician. But she instead went to the Department of Labor (DOL), which told First Coast that she should be permitted to return to work with just the chiropractor's letter as documentation. A First Coast attorney told the DOL that First Coast would be contacting the plaintiff soon to let her know she could return to work.
First Coast unsuccessfully attempted to contact the plaintiff by phone three times, and a letter sent by certified mail was returned as undeliverable, according to the company. On April 30, First Coast terminated the plaintiff, who claimed she had received none of First Coast's communication attempts until she received a COBRA notice.
Acting as her own attorney, the plaintiff sued for failure to accommodate under the ADA, FMLA interference and FMLA retaliation. First Coast moved for summary judgment, which the district court granted. She appealed to the 11th U.S. Circuit Court of Appeals, arguing that the district court improperly concluded: that she had no ADA disability, that First Coast did not interfere with her FMLA rights and that First Coast did not retaliate against her for taking FMLA leave. The 11th Circuit affirmed judgment in favor of the employer.
Since the advent of the ADA Amendments Act in 2009, fewer ADA cases have been decided on the question of whether an employee has a disability. But in this case, the plaintiff offered so little evidence of her alleged disability that the appeals court found she had not established that she suffered from a substantial limitation of any major life activity—a prerequisite for showing a disability under the law.
The only evidence the plaintiff offered of her alleged disability was the chiropractor's letter, which stated that the chiropractor was treating her for cervical, thoracic and lumbar back pain and that she should be limited to a reduced schedule for two weeks. The 11th Circuit noted that this letter failed to establish that the pain limited the employee's ability to walk, bend, sleep or lift, for instance. Although the circuit court's decision did not hinge on the temporary nature of the chiropractor's request, the 11th Circuit distinguished the plaintiff's situation from another case where a doctor's letter established substantial limitations that were expected to be permanent.
The plaintiff's FMLA interference claim rested on the theory that First Coast had interfered with her right to reinstatement by refusing her reduced schedule request. The 11th Circuit disagreed with her, noting that the FMLA protects only the right to be returned to the same or an equivalent position, not a modified position.
The plaintiff pursued her FMLA retaliation claim on the theory that First Coast terminated her after she sought the DOL's help with her FMLA claims. Although she could establish a prima facie claim for retaliation due to the close temporal proximity between her contacting the DOL and her termination, the 11th Circuit rejected her claim because she was unable to counter First Coast's explanation that it terminated her for absenteeism when she failed to respond to its entreaties that she return to work.
Holton v. First Coast Service Options Inc., 11th Cir., No.16-15289 (Aug. 11, 2017).
Professional Pointer: Insisting on documentation from a doctor, or even a specialist, is permissible in some circumstances. However, tread carefully. The ADA and its regulations don't specifically include—or exclude—chiropractors as health care providers. The EEOC's enforcement guidance states that an employer can require an employee requesting a reasonable accommodation to go to a doctor of the employer's choosing if the employee offers documentation from a health care provider with insufficient expertise for the requested accommodation or underlying condition. The FMLA includes chiropractors as health care providers but only for manual manipulation of the spine to correct a partial dislocation identified by X-ray.
Whitney R. Brown is an attorney with Lehr Middlebrooks Vreeland & Thompson PC, the Worklaw® Network member firm in Birmingham, Ala.
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