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ADA Leave Policies (Continued)

*This is part 2 of a 2-part series blog.  The first part can be found at HERE

Last month, Rick Benavides, associate attorney, wrote a blog regarding reconciling maximum leave policies and the Americans with Disabilities Act.  In his blog, Rick described how an employer can face claims regarding their maximum leave policy.  The first typical cause of action was addressed, which was disability discrimination.  The second cause of action is failure to accommodate, which is explored in this blog.

  1. Failure to Accommodate Cause of Action

In order to review a failure to accommodate claim we will need another example, so we will leave Tiffany alone for this one.

A Common Example A Common Mistake

George is an employee at Stop and Go. George is involved in a car accident but is able to walk away with only a few bumps and bruises. He attends work for about a week when he notices that his back hurts when he stands for more than five minutes. He goes to a doctor that tells him that he has multiple herniated discs. George and Stop and Go engage in the ADA interactive process, and George is issued a chair as an accommodation. George, shortly thereafter, decides to take FMLA leave to undergo back surgery. During his leave, Stop and Go sends a letter to George advising him that once he exhausts his FMLA leave, he will be required to return to work at a specified date or else he will be fired under Stop and Go’s Maximum Leave policy. George uses the full 12 weeks of FMLA leave for his recovery but still needs one additional week of leave before he can return to work. George does not show up to work on the specified date and is fired. 

Under the ADA, an employer must provide “reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability….”.[1] To prevail on a failure to accommodate claim, a plaintiff must show: “(1) the plaintiff is a qualified individual with a disability; (2) the disability and its consequential limitations were “known” by the covered employer; and (3) the employer failed to make reasonable accommodations for such known limitations.”[2] Once an employer has knowledge of the employee’s disability and its resulting limitations, they must engage in the interactive process to determine whether a reasonable accommodation can be provided. When an employer does not engage in a good faith interactive process, that employer violates the ADA.[3]

Case law is clear that an employee who needs an accommodation because of a disability is responsible for informing their employer about their needs.[4]To that end, the Fifth Circuit has held firm that employers cannot be expected to read minds and anticipate all the problems that a disability may create on the job and spontaneously accommodate them.[5] Accordingly, the burden is on the employee to request an accommodation.[6] With that being said, you must be thinking, “well George didn’t ask for leave as an accommodation. Doesn’t that mean that Stop and Go are not obligated to provide it?” I can only provide you with a typical lawyer response – it depends.  You see, the EEOC is of the position that the employee need not use “magic words” to request an accommodation. For example, they do not need to mention the term “ADA” or use the phrase “reasonable accommodation” when informing an employer about their needs.[7]

The EEOC’s position is problematic in that it is so broad that it has allowed employees to raise failure to accommodate causes of actions, claiming that their leave of absence from work and subsequent failure to return was sufficient to apprise their employers that they had a qualifying disability under the ADA and were in need of additional leave as an accommodation. As you can see, and as you will read in the paragraphs below, there is no clear standard as to what exactly constitutes a “request for an accommodation.” Due to this, courts have had to grapple with the specific circumstances of each situation and determine whether the employer had sufficient knowledge of the employee’s disability and its resulting limitations to trigger its obligation to engage in the ADA interactive process.

  • Employer’s Obligation to Suggest Accommodation

Under the ADA, it is unlawful for an employer to fail to accommodate the “known” limitations of an employee’s disability. The Fifth Circuit has recognized that ‘where the disability, resulting limitations, and necessary reasonable accommodations, are not open, obvious, and apparent to the employer, the initial burden rests primarily upon the employee … to specifically identify the disability and resulting limitations, and to suggest the reasonable accommodations.”[8] Distinguishing between an employer’s knowledge of an employee’s disability versus an employer’s knowledge of any limitations experienced by the employee as a result of that disability has also been stressed by the courts.[9] This distinction is important because the ADA requires employers to reasonably accommodate limitations, not disabilities.[10] Precedence, therefore, supports the contention that there is no obligation to suggest an ADA accommodation to an employee, even if you know they have a disability. But it also supports the assertion that you must suggest an accommodation if you have knowledge of their disability as well as its resulting limitations.

The case law also appears to indicate that the employer’s obligation to suggest an accommodation may depend on the type of disability the employee is suffering from. For example, in Bultemeyer v. Fort Wayne Cmty. Sch., the Seventh Circuit held that when an employee is suffering from a mental illness, and is not aware of their limitations, the employer has to meet the employee half-way.[11] Additionally, if it appears that the employee may need an accommodation but doesn’t know how to ask for it, the employer should do what it can to help.[12] In the mental illness context, the Fifth Circuit, in Loulseged v. Akzo Nobel Inc., adopted a similar interpretation and held that an employer may have an extra duty to explore the employee’s condition and the interactivity of the process may be of less importance.[13]

Normally, the interactive process is a two-way street, involving communications between the employee and employer to exchange information and determine what reasonable accommodations can be provided. However, based on these interpretations, when an employee suffers from a disability that affects their cognitive functions, the interactive process becomes a one-way street. In so far, that once the employer becomes aware of the employee’s disability, the employer may need to reach out and suggest an accommodation. The EEOC also supports this position, stating that “an employer should initiate the reasonable accommodation interactive process, without being asked, if the employer: (1) knows that the employee has a disability, (2) knows, or has reason to know, that the employee is experiencing workplace problems because of the disability, and (3) knows, or has reason to know, that the disability prevents the employee from requesting a reasonable accommodation.”[14]

However, when it comes to employees with purely physical disabilities, the Fifth Circuit has held that the employee will generally be in the best position to determine their own needs and capabilities.[15] Additionally, at least one Texas court has taken a strict interpretation of the employee’s obligation to request an accommodation, holding that even though the employer knew the employee could not make it to work on time without an accommodation, the employee could not prevail on a claim for failure to accommodate because the employee never made a request for an accommodation.[16]

Based on George’s purely physical disability example, it would appear, at least under the Loulseged ruling, that Stop and Go did not fail to accommodate because they did not have an affirmative obligation to propose leave as an accommodation. Arguably, it can be said that George was more than capable of informing Stop and Go of the change in circumstance and request additional leave as an accommodation. Additionally, while Stop and Go had notice of George’s disability, they were not aware that the inability to attend work would be a resulting limitation. The analysis does not stop here, however. We must also consider the circumstances surrounding the leave, specifically, that the leave was taken under FMLA.

  • FMLA Leave as Notice of Need for Accommodation under the ADA

It is well known that FMLA and ADA protections are often used concurrently when addressing employee accommodation requests. This is so because employees with serious health conditions often also qualify as employees with a disability under the ADA. FMLA regulations make it clear that both FMLA and ADA can apply to a single instance where an employee requires time off work for their own health concern: “If an employee is a qualified individual with a disability within the meaning of the ADA, the employer must make reasonable accommodations, etc., barring undue hardship, in accordance with the ADA. At the same time, the employer must afford an employee his or her FMLA rights.”[17]

Can it, therefore, be said that an employee’s request for FMLA leave puts the employer on notice that they may also be eligible for leave as a reasonable accommodation under the ADA? The Fifth Circuit seems to think it does not. The Fifth Circuit has held that “…a request for  FMLA  leave  is  not  a  request  for  a  reasonable  accommodation  under  the  ADA…The ADA and the FMLA have divergent aims, operate in different ways, and offer disparate relief.”[18] The Fifth Circuit has concluded that “an employee seeking FMLA leave is by nature arguing that he cannot perform the functions of the job, while an employee requesting a reasonable accommodation communicates that he can perform the essential functions of the job.”[19]  Based on the this interpretation, an FMLA request alone is not enough to trigger an employer’s obligations under the ADA. This interpretation make sense in so far that the standards for eligibility under FMLA and the ADA differ.

However, decisions from different Circuit Courts around the United States are not as steadfast as the Fifth Circuit. For example, the Third Circuit has held that under certain circumstances, a request for intermittent FMLA leave may also constitute a request for a reasonable accommodation under the ADA.[20]Additionally, the D.C. Circuit also held that while an FMLA request does not always constitute an ADA accommodation request, in certain circumstances an FMLA request could put an employer on notice that the employee was also requested an accommodation under the ADA.[21]

Unfortunately, there is no list of “certain circumstances” that we can look to for guidance in determining when an FMLA request is tantamount to a request for an accommodation under the ADA.  Like most decisions made this area of law, a determination will need to be made on a case-by-case basis.

Going back to George’s example, I believe Stop and Go should have erred on the side of caution and asked George whether additional leave may have been needed as an accommodation. There are a couple of factors that Stop and Go should have reviewed before terminating George under their maximum leave policy. The first is that George was already receiving an accommodation under the ADA. While I do not think this factor alone is determinative, I believe that it is enough to have put Stop and Go on notice that his inability to attend work may have been related to his known disability. The second factor is that the FMLA leave was taken to undergo back surgery. In my opinion, any reasonable person would consider back surgery to be a significant procedure that may require an extended amount of time to recover from. Considering these factors, I think that this is one of those “certain circumstances” where a request for FMLA may also serve as a notice of a request for an accommodation under the ADA.

Take Aways

  1. Document all employee issues. Documentation may come in handy should you need to defend against a claim of discrimination.
  2. Be careful with the rigid enforcement of maximum leave policies.
  3. Review the files of all employees being proposed for termination under your maximum leave policy to determine whether their failure to show up to work may be related to their known disability and its resulting limitations.
  4. Employers should exercise caution in instances where both the FMLA and ADA apply and should be vigilant for indications that initiation of the interactive process is warranted.
  5. Update your maximum leave policies to include the consideration of leave as a reasonable accommodation under the ADA prior to termination.
  6. Contact your attorney when the situation is not clear.