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A woodshop worker who was fired while on medical leave to recover from shoulder surgery can’t proceed with his claim that a Michigan outdoor furniture manufacturer failed to reasonably accommodate his disability by not extending his leave, the 6th U.S. Circuit Court of Appeals ruled.
Mark Judge, an employee of Landscape Forms Inc., injured his shoulder on April 30, 2011, while working around his home. After consulting with his physician, Judge contacted Landscape Forms’ benefits specialist, Karen Phillips, to discuss his shoulder surgery, as well as leave under the Family and Medical Leave Act (FMLA). While Judge alleged that he told Phillips it would take between four and six months to recover from his surgery, Phillips denied that he ever provided her with this information.
On May 18, 2011, Judge underwent surgery to repair his shoulder. On May 23, 2011, Judge’s physician provided Landscape Forms with a completed certification of health care provider form, which indicated that Judge would be unable to perform his job duties from May 18 through Aug. 10, 2011. Judge’s FMLA leave was subsequently approved by Landscape Forms. Judge also applied and was approved for long-term disability benefits through the company’s third-party administrator.
In early August 2011, Judge spoke with Phillips and informed her that he was in need of an additional six weeks of therapy in order to rehab his shoulder. He also provided her with a set of work restrictions from his physician. Phillips requested clarification regarding the work restrictions, but Judge failed to provide the additional information or otherwise follow up with Phillips regarding her request. Ultimately, the parties agreed that Judge would contact Phillips on or about Sept. 16, 2011, to discuss his status.
On Sept, 26, 2011, after not hearing from Judge, Phillips left him a voicemail requesting an update with respect to his status. In response to Phillips’ message, Judge sent a physician’s note with a new set of work restrictions, but the note did not set forth Judge’s expected date of full recovery. Importantly, by this time Landscape Forms had provided Judge with leave beyond the 12 weeks to which he was entitled under the FMLA. After receiving the physician’s note, Phillips called Judge to inform him that the company was terminating his employment because it could not accommodate his restrictions, could not leave his job open for an indefinite period and needed to maintain certain staffing levels. Judge claimed that during this call, he informed Phillips that he “should be released and be able to go back to work full duty with no restrictions” by Nov. 15, 2011. Phillips denied that Judge provided her with this information.
Following his termination, Judge filed suit against Landscape Forms, alleging disability discrimination and failure to accommodate under the Americans with Disabilities Act (ADA), as well as retaliation under the FMLA. The district court dismissed Judge’s claims in their entirety. Judge appealed the dismissal of his ADA failure-to-accommodate and FMLA retaliation claims.
In affirming the lower court’s dismissal of Judge’s ADA failure-to-accommodate claim, the 6th Circuit concluded that Judge did not make a request for an accommodation. The court reasoned that while the ADA does not require an employee to use “magic words,” such as “accommodation” or “disability,” the “employee also must make it clear that the request is being made because of the employee’s disability.” The court held that Judge’s request for long-term disability benefits did not constitute a request for accommodation due to the fact that Landscape Forms used a third-party administrator to process his claim and the third party provided limited information to the company regarding his disability claim.
Additionally, the court reasoned that even assuming that Judge informed Phillips of his ability to return on Nov. 15, 2011, such information was provided after the company had communicated its decision to terminate his employment and thus was not an adequate request for an accommodation. The court cited 6th Circuit precedent that in order to establish an ADA failure-to-accommodate claim, “an employee must demonstrate that he or she requested an accommodation before being fired.” Importantly, the court noted that because Judge did not request an accommodation before being terminated, it was not deciding as to whether a leave request until Nov. 15, 2011, would have been reasonable.
In affirming the dismissal of Judge’s FMLA retaliation claim, the court held that Landscape Forms had indeed established a legitimate, nonretaliatory reason for its decision to terminate Judge’s employment—namely, “that it needed to maintain staffing levels and Judge had not provided a date on which he could return to work without restrictions.”
Judge v. Landscape Forms, Inc., 6th Cir., No. 14-1362 (Nov. 21, 2014).
Professional Pointer: Human resource professionals should be aware of the complex interaction between the ADA and the FMLA—including the importance of examining unpaid time off as a potential accommodation under the ADA, even in circumstances in which an employee has exhausted his or her 12 weeks of FMLA leave.
Jonathan E. O’Connell is an attorney with Torcivia, Donlon, Goddeau & Ansay P.A. in West Palm Beach, Fla., who represents both public and private employers in labor and employment matters.
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