A recent decision from the Court of Appeals for the District of Columbia provides a result that employers may often think they do not see enough in labor and employment law: a common sense solution to a situation that confronts them often – what to do under federal (and potentially state) statutes requiring reasonable accommodation for an employee on what becomes a virtually indefinite leave of absence. The decision shows that there are indeed limits to what may be required of an employer under these laws in terms of having to provide a limitless leave of absence.
In the recent decision, an employee of the chief medical examiner for the District of Columbia suffered from an arthritic condition, aggravated that condition with an on-the-job injury in September 2006, and ultimately stopped working altogether in February 2007. Between February and May 2007, the employer sent her several letters requesting documentation of her injury and overall condition. She failed to provide any. Finally, in June 2007 the employer wrote the employee and told her that she needed either to report to work or provide the requested documentation – or else be subject to discipline. Shortly thereafter, the employee provided a physician’s certificate which said she was totally disabled and would be disabled indefinitely. A cover letter provided by the employee stated she “hoped” to return by September 2007 – three months later. After receiving that correspondence, the employer decided that it could not wait any longer for the employee’s uncertain return, and terminated her employment.
The employee then sued the employer under both the Americans with Disabilities Act (ADA), as well as the federal Rehabilitation Act (which generally applies to federal government employers). She raised two basic claims: 1) the employer unlawfully refused to accommodate her disability, and 2) the employer retaliated against her for requesting an accommodation.
The case was dismissed at the trial court level, which led to an appeal before the Court of Appeals. The appellate court first tackled the question of whether the employer illegally refused to accommodate the employee’s disability, noting that to prevail on this argument, the employee needed to demonstrate that the employer refused to accommodate her, and that she was a “qualified individual” able to perform the essential functions of her job with or without reasonable accommodation.
The appellate court first concluded that the employer had made reasonable efforts to meet the employee’s needs, and had lawfully engaged in an interactive process with her. Significantly, it found that as of June 2007 – when the employee finally provided some medical certification – she was not a qualified individual under either federal statute. Because she was – according to her own medical certification – totally disabled and likely to stay that way for at least three more months, she was not able to perform any essential job function even with accommodation, and therefore did not meet the definition of a qualified individual under federal law. The court went on to find that the employer had waited more than six months for the employee to return to work, had no certainty as to if or when she would be able to return to work, and therefore had waited beyond a reasonable amount of time for the non-performing individual to return.
The appellate court also rejected the claim that the employee was unlawfully retaliated against because she sought an accommodation. The employee argued that she was terminated only because she asked her employer to accommodate her need to be on leave for at least three more months. The court rejected that claim as well, finding that the employer had every right to terminate her because she failed to report to work for many months, and gave little reason to believe she would be back at any time in the near future.
Confronting the obligation to reasonably accommodate employees who appear temporarily unable to work in any capacity can be frustrating for every employer, particularly when often the employee and his or her medical provider either provide no information regarding when the employee can or will return to work or provide progressive return to work dates that can appear like the proverbial can merely be kicked down the road. However, at least in some circumstances, employees who claim total disability for extended periods of time may find themselves excluded from coverage under state or federal laws requiring such reasonable accommodation, and if they fail to cooperate with legitimate employer requests to engage in the interactive process, they may find themselves on the wrong side of legal arguments relating to their rights. Employers can also make tough decisions about employees on long-term leave when they have the facts and circumstances to support those decisions. As always however, employers are wise to consult with their counsel before making such decisions.
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