FMLA and ADA

4:00 p.m.- 4:45 p.m.

Presented byMark D. Sherinian

Sherinian & Hasso Law Firm630 Colony Park

3737 Woodland AvenueWest Des Moines, IA 50266

Phone: (515) 224-2079

Terri DavisShuttleworth & Ingersoll PLC

115 Third St. SE Suite 500

PO Box 2107Cedar Rapids, IA 52406

Phone: 319-365-9461

Friday, November 14, 2014

2014 Labor and Employment Seminar

Permission given from Brian East for the use

of the of Medical Leaves outline.

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MEDICAL LEAVES: THE OVERLAP OF DISABILITY, FMLA & ERISA CLAIMS 2014 NELA Convention, Boston, MA

Leave As a Reasonable Accommodation

Brian East Disability Rights Texas

2222 W. Braker Ln. Austin, TX 78758 (512) 454-4816 tel (512) 454-3999 fax

beast@drtx.org

1) Leave Can Be a Reasonable Accommodation Under the ADA

a) ADA’s statutory definition of reasonable accommodation includes “part-time or modifiedwork schedules … and other similar accommodations for individuals with disabilities.” 42U.S.C. § 12111(9)(B).

b) EEOC guidance: 29 C.F.R. Part 1630 App., § 1630.2(o) (“permitting the use of accruedpaid leave or providing additional unpaid leave for necessary treatment”); A TechnicalAssistance Manual on the Employment Provisions (Title I) of the Americans withDisabilities Act, § 3.10(4) (EEOC Jan. 1992)1 (hereafter “EEOC Technical AssistanceManual”); Reasonable Accommodation and Undue Hardship Under the Americans withDisabilities Act (EEOC Oct. 22, 2002)2 (hereafter “EEOC Guidance onAccommodations”); The Family and Medical Leave Act, the Americans with DisabilitiesAct, and Title VII of the Civil Rights Act of 1964, Question 1 and n.4 (EEOC July 6, 2000)3

(hereafter “EEOC Guidance on FMLA & ADA”); Questions and Answers About Diabetesin the Workplace and the Americans with Disabilities Act (ADA), Question 10 (EEOCOct. 29, 2003)4 (hereafter “EEOC Diabetes Guidance”) (“leave for treatment, recuperation,or training on managing diabetes”); Questions and Answers About Cancer in theWorkplace and the Americans with Disabilities Act (ADA), Question 11 (EEOC Aug. 3,2005)5 (similar); EEOC Enforcement Guidance: Workers’ Compensation and the ADA,Question 18 (EEOC July 6, 2000);6 Small Employers And Reasonable Accommodation,Questions 6 and 7 (EEOC); Questions and Answers: The Application of Title VII and theADA to Applicants or Employees Who Experience Domestic or Dating Violence, SexualAssault, or Stalking (EEOC).7

1 Online at http://askjan.org/links/ADAtam1.html. 2 Online at http://www.eeoc.gov/policy/docs/accommodation.html. 3 Online at http://www.eeoc.gov/policy/docs/fmlaada.html. 4 Online at http://www.eeoc.gov/laws/types/diabetes.cfm. 5 Online at http://www.eeoc.gov/laws/types/cancer.cfm. 6 Online at http://www.eeoc.gov/policy/docs/workcomp.html. 7 Online at http://www1.eeoc.gov/eeoc/publications/qa_domestic_violence.cfm.

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c) The case law is consistent.

i) The Supreme Court has recognized that accommodations may include breaks formedical treatment. US Airways, Inc. v. Barnett, 535 U.S. 391, 397–398 (2002).

ii) Every circuit to consider the issue recognizes that leave can be a reasonableaccommodation. See, e.g., Criado v. IBM Corp., 145 F.3d 437, 443 (1st Cir. 1998);Walton v. Mental Health Ass’n. of Southeastern Pennsylvania, 168 F.3d 661, 671 (3dCir. 1999) (“unpaid leave supplementing regular sick and personal days might, underother facts, represent a reasonable accommodation,” but leave requested here was notreasonable); Rodgers v. Lehman, 869 F.2d 253, 259 (4th Cir. 1989) (decided under §501 of the Rehabilitation Act); Cehrs v. Northeast Ohio Alzheimer’s Research Center,155 F.3d 775, 782–783 (6th Cir. 1998) (medical leave of absence, paid or unpaid, maybe reasonable accommodation); Haschmann v. Time Warner Entm’t Co., 151 F.3d 591,601 (7th Cir. 1998); Brannon v. Luco Mop Co., 521 F.3d 843, 849 (8th Cir. 2008);Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1247 (9th Cir. 1999); Smith v. DiffeeFord-Lincoln-Mercury, Inc., 298 F.3d 955, 967 (10th Cir. 2002); Taylor v. Rice, 451F.3d 898, 910 (D.C. Cir. 2006).

iii) See also Smith v. Clark County School Dist., 727 F.3d 950 959 (9th Cir. 2013) (“Evenif Smith had not recovered by the beginning of the school year, it may have beenreasonable for the School District to accommodate Smith’s disability through anextended leave of absence.”); Graves v. Finch Pruyn & Co., Inc., 457 F.3d 181, 185n.5 (2d Cir. 2006) (noting that “[m]ost other circuits and the Equal EmploymentOpportunity Commission have concluded that, in some circumstances, an unpaid leave of absence can be a reasonable accommodation under the ADA.”); Barnett v. Uniformed Services University of the Health Sciences, 2011 WL 3511049, at *11 (D. Md. Aug. 9, 2011) (collecting authorities and noting few “bright line” rules).

2) Reasons For Leave

a) Leave as an accommodation may be appropriate for a number of reasons, including medicaltreatment, repair of a prosthesis or equipment, temporary adverse conditions in the workenvironment, service-animal training, etc. EEOC Technical Assistance Manual, supra, §3.10(4); EEOC Diabetes Guidance, supra, Question 8 (“leave for treatment, recuperation,or training on managing diabetes”). See also Rascon v. US West Communications, Inc., 143F.3d 1324, 1333–1334 (10th Cir. 1998) (“An allowance of time for medical care ortreatment may constitute a reasonable accommodation.”).

b) Leave is also permitted to allow the employee to recover or gain enough control to returnand perform the essential job functions. Martin v. Yokohama Tire Corp., 2013 WL6002344, at *13 (W.D. Va. Nov. 12, 2013); Donelson v. Providence Health & Services-Washington, 823 F. Supp. 2d 1179, 1189–1190 (E.D. Wash. Oct. 14, 2011) (“[I]f anemployee’s ability to perform essential job functions were evaluated solely with regard tothe period of time during which they were on medical leave, no employee that was forced

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by disability to take medical leave could ever be a “qualified individual” under the ADA.”); Miller v. Hersman, 759 F. Supp. 2d 1, 14 (D.D.C. 2010) (“Defendant’s argument is based on an erroneous interpretation of the inquiry. The question is whether Miller’s proposed leave of absence—the accommodation he explicitly requested—could have sufficiently improved his physical and mental conditions such that he would have been capable of returning to his position and completing the work expected of him. If so, Miller was a qualified employee. … The question is not whether, as Defendant poses it, Miller would have been able to complete assigned tasks during his leave of absence, but rather whether he would have been able to complete assigned tasks after completing his leave of absence.”). See also Burress v. City of Franklin, Tenn., 809 F. Supp. 2d 795, 812 (M.D. Tenn. Aug. 17, 2011) (plaintiff not unqualified just because not yet released to work).

c) But cf. Luise v. Colonial Intermediate Unit 20, 2014 WL 1225969, at *9–10 (E.D. Pa. Mar. 21, 2014) (although temporary leave may be a reasonable accommodation if it will allow medical treatment, or will enable employee to perform her essential job functions in the future, pleadings here contradicted either purpose and reflected indefinite leave from plaintiff would not have returned).

3) Proving Reasonableness

a) Ordinarily the plaintiff only has the burden of showing that an accommodation seems

reasonable on its face, i.e., ordinarily or in the run of cases. U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 401–402 (2002).

b) If it is reasonable on its face, the employer must then show the (typically case-specific) circumstances that demonstrate undue hardship. Id. at 402.

c) Thus, reasonableness is a general inquiry while undue hardship is the case-specific one.

d) The focus on the proposed accommodation should also be a generalized one. The plaintiff need only show he seeks a “method of accommodation” that is reasonable in the run of cases. Barnett, supra, at 402, quoting Barth v. Gelb, 2 F.3d 1180, 1187 (D.C. Cir. 1993) (emphasis in original). See also Barnett, supra, at 410 (O’Connor, J., concurring) (substantially similar); Shapiro v. Township of Lakewood, 292 F.3d 356, 361 (3d Cir. 2002) (“The first step requires the employee to show that the accommodation is a type that is reasonable in the run of cases.”) (emphasis added); Willis v. Conopco, Inc., 108 F.3d 282, 286 n.2 (11th Cir. 1997) (method of accommodation); Riel v. Electronic Data Systems Corp., 99 F.3d 678, 683 (5th Cir. 1996) (same); E.E.O.C. v. Mollertech Corp., 2005 WL 1982974, at *7 (E.D. Mich. Aug. 12, 2005) (same).

e) This means, for example, that the plaintiff need only prove that unpaid leave is a type of accommodation that is reasonable in the run of cases. Courts should not require proof that leave of the particular length sought is reasonable in the run of cases.

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f) The fact that courts and EEOC guidance repeatedly recognize leave as a reasonableaccommodation should be enough to show that it is reasonable in the “run of cases.” It isalso referred to as a reasonable accommodation by the Job Accommodation Network.8

g) This does not mean the plaintiff is entitled to the requested leave, of course. It just meansthat the defendant must come forward with evidence of the specific reasons why such leavewould result in an undue hardship.

h) Unfortunately the case law and dicta are not always wholly consistent in followingBarnett’s commands.

4) The Defense of Undue Hardship

a) Under the ADA an employer need not provide an accommodation if it “can demonstratethat the accommodation would impose an undue hardship on the operation of [its]business.” 42 U.S.C. § 12112(b)(5)(A).

b) As stated above, the plaintiff only has the burden of showing that an accommodation seemsreasonable on its face, i.e., ordinarily or in the run of cases. Once the plaintiff has madethis showing, the defendant has the burden of proving the (typically case-specific)circumstances that demonstrate undue hardship. U.S. Airways, Inc. v. Barnett, 535 U.S.391, 401–402 (2002).

c) “Undue hardship” means an action requiring significant difficulty or expense, whenconsidered in light of the statutory factors. 42 U.S.C. § 12111(10); 29 C.F.R. §1630.2(p)(1).

d) The factors are set out at 42 U.S.C. § 12111(10)(B) and 29 C.F.R. § 1630.2(p)(2), andinclude:

i) The nature and net cost of the accommodation needed under this part, taking intoconsideration the availability of tax credits and deductions, and/or outside funding;

ii) The overall financial resources of the facility or facilities involved in the provision ofthe reasonable accommodation, the number of persons employed at such facility, andthe effect on expenses and resources;

iii) The overall financial resources of the covered entity, the overall size of the business ofthe covered entity with respect to the number of its employees, and the number, typeand location of its facilities;

8 See, e.g., JAN’s extensive “Accommodation and Compliance Series” for both general guidance, e.g., Employers’ Practical Guide to Reasonable Accommodation Under the Americans with Disabilities Act (JAN updates May 15, 2009), http://askjan.org/ErGuide/ErGuide.pdf; and regarding conditions as diverse as Parkinson’s Disease, http://askjan.org/media/PD.html; hepatitis, http://askjan.org/media/hep.html; mental health impairments, migraine headaches, http://askjan.org/media/Migraine.html; cancer, http://askjan.org/media/Cancer.html; lupus, http://askjan.org/media/Lupus.html; arthritis, http://askjan.org/media/Arthritis.html; and psychiatric conditions, http://askjan.org/media/Psychiatric.html; etc.

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iv) The type of operation or operations of the covered entity, including the composition,structure and functions of the workforce of such entity, and the geographic separatenessand administrative or fiscal relationship of the facility or facilities in question to thecovered entity; and

v) The impact of the accommodation upon the operation of the facility, including theimpact on the ability of other employees to perform their duties and the impact on thefacility's ability to conduct business.

e) Generalized conclusions will not suffice; undue hardship must be based on anindividualized assessment of current circumstances that show that a specific reasonableaccommodation would cause significant difficulty or expense. EEOC Guidance onAccommodations, supra (text at n.113). See also Olmstead v. L.C. ex rel. Zimring, 527U.S. 581, 606 n.16 (1999) (observing that the “undue hardship” inquiry under theregulations implementing § 504 and Title II of the ADA requires a “case-by-case analysisweighing factors”); Morton v. United Parcel Service, Inc., 272 F.3d 1249, 1256–1257 (9thCir. 2001), cert. denied, 535 U.S. 1054 (2002) (“Undue hardship analysis is thus a fact-intensive inquiry, rarely suitable for resolution on summary judgment.”), overruled in parton other grounds by Bates v. United Parcel Service, Inc., 511 F.3d 974 (9th Cir. 2007) (enbanc); Smith v. Midland Brake, Inc., 180 F.3d 1154, 1178 (10th Cir. 1999) (en banc)(“definition by necessity requires a case-by-case analysis”).

f) An employer cannot claim undue hardship based on:

i) Fear or prejudice by coworkers or customers. EEOC Guidance on Accommodations,supra (text at 117).

ii) The fact that provision of a reasonable accommodation might have a negative impacton the morale of other employees (although employers may be able to show unduehardship if the accommodation would be unduly disruptive to the ability of otheremployees to work). Id. (text following n.117).

iii) The fact that coworkers may have to cover for the employee who is on leave. Rasconv. US West Communications, Inc., 143 F.3d 1324, 1335 (10th Cir. 1998).

iv) There may be other relevant factors. Sometimes the ability to hire a temporary workerwill eliminate any undue hardship, for example, although sometimes that is notpossible. Also, if an employer determines that one particular reasonableaccommodation will cause undue hardship but a one will not, the employer mustprovide the second accommodation. EEOC Guidance on Accommodations, supra (textbetween nn.116 and 117).

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5) Length of Leave

a) The plaintiff’s burden is simply to identify a type of accommodation that is reasonable inthe run of cases, and medical leave satisfies. The question remains, however, whether thelength of a particular leave constitutes an undue hardship under the facts in a particularcase.

b) Courts should reject per se limits as inconsistent with the individualized fact-intensiveapproach to proving undue hardship. See, e.g., Cehrs v. Northeast Ohio Alzheimer’sResearch Center, 155 F.3d 775, 782 (6th Cir. 1998) (“Upon reflection, we are not sure thatthere should be a per se rule that an unpaid leave of indefinite duration (or a very lengthyperiod, such as one year) could never constitute a ‘reasonable accommodation’ under theADA. It is not clear why unpaid leave should be analyzed differently from any otherproposed accommodation under the ADA.”), quoting Norris v. Allied-Sysco Food Services,Inc., 948 F. Supp. 1418, 1439 (N.D. Cal. 1996), aff’d, 191 F.3d 1043 (9th Cir. 1999), cert.denied, 528 U.S. 1182 (2000); Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638,650 (1st Cir. 2000) (“These are difficult, fact intensive, case-by-case analyses, ill-servedby per se rules or stereotypes.”).

c) Although some courts appear to draw per se rules, they usually involve leave in excess ofa year. See Powers v. Polygram Holding, 40 F. Supp. 2d 195, 200 (S.D.N.Y. 1999). Seealso Walsh v. United Parcel Service, 201 F.3d 718, 727 (6th Cir. 2000) (“Our review ofcase law … suggests that it would be very unlikely for a request for medical leaveexceeding a year and a half in length to be reasonable. However, we must still address theparticular accommodation that plaintiff requested.”).

d) The case law supports leave of various lengths, depending on the circumstances:

i) Two months: Berk v. Bates Advertising USA, Inc., 1997 WL 749386, at *6 (S.D.N.Y.Dec. 3, 1997) (employer should have granted leave in excess of two months to allowworker to recover from breast cancer surgery).

ii) Four months: Cehrs v. Northeast Ohio Alzheimer’s Research Center, 155 F.3d 775 (6thCir. 1998); Rascon v. US West Communications, Inc., 143 F.3d 1324, 1334 (10th Cir.1998); Powers v. Polygram Holding, Inc., 40 F.Supp.2d 195, 197–201 (S.D.N.Y.1999).

iii) Five months: Carter v. General Elec. Co., 2000 WL 321663 (N.D. Ill. Mar. 21, 2000)(fact issue presented on whether employees request for fifth month of leave wasreasonable accommodation).

iv) Six months: Cleveland v. Federal Express Corp., 83 Fed. Appx. 74, 78–79 (6th Cir.Nov. 28, 2003).

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v) Seven months: Shannon v. City of Philadelphia, 1999 WL 1065210, at *6 (E.D. Pa. Nov. 23, 1999) (jury could believe that additional three-month leave after 12-week FMLA leave was required).

vi) One year: Norris v. Allied-Sysco Food Services, Inc., 948 F. Supp. 1418, 1439 (N.D. Cal. 1996), aff’d, 191 F.3d 1043 (9th Cir. 1999), cert. denied, 528 U.S. 1182 (2000); Vializ v. New York City Bd. of Educ., 1995 WL 110112 (S.D.N.Y. Mar. 13, 1995) (if employee could prove she could have returned to work if leave of absence of approximately one year had been provided, she would be entitled to relief under ADA).

vii) More than one year: White v. Honda of America Mfg., Inc., 191 F. Supp. 2d 933, 951 (S.D. Ohio 2002) (jury question whether employer had to provide medical leave in excess of employers 12-month leave policy); Durrant v. Chemical/Chase Bank/Manhattan, N.A., 81 F. Supp. 2d 518, 521–522 (S.D.N.Y. 2000).

viii) 13 months: Ralph v. Lucent Technologies, 135 F.3d 166, 172 (1st Cir.1998) (very limited four-weeks additional leave might be reasonable, even after plaintiff had been given 52 weeks of LWOP).

ix) 17 months: Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638 (1st Cir. 2000) (five months beyond employer’s one-year job-hold policy)

e) Even lengthy leave may be required depending on the circumstances. Smith v. Clark

County School Dist., 727 F.3d 950 959 (9th Cir. 2013) (“Even if Smith had not recovered by the beginning of the school year, it may have been reasonable for the School District to accommodate Smith’s disability through an extended leave of absence.”); Norris v. Allied-Sysco Food Services, Inc., 948 F. Supp. 1418, 1439–1440 (N.D. Cal. 1996), aff’d, 191 F.3d 1043 (9th Cir. 1999), cert. denied, 528 U.S. 1182 (2000) (“For example, in the case of a very large employer, with high turnover and many fungible employees, an unpaid leave of an indefinite or very lengthy duration could be a reasonable accommodation if the leave would enable an easily replaceable employee to eventually perform the essential functions of the employee’s position and the employer did not incur significant expenses as a result of maintaining the employee in the status of an employee.”).

f) On the other hand, even more modest leaves could be an “undue hardship” under particular facts. The point, of course, is that the inquiry must be individualized.

6) Leave In Excess of FMLA or Company Policies

a) The appropriateness of a leave request is especially clear if the worker can show that the

leave is consistent with company policy or with FMLA requirements. Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d 955, 967 (10th Cir. 2002); Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1246–1247 (9th Cir. 1999) (fact issue existed on whether leave expected to last eight to nine months was reasonable accommodation, in light of policy of allowing one-year leave without pay); Haschmann v. Time Warner Entertainment Co., 151 F.3d 591, 602 (7th Cir. 1998); Rascon v. US West Communications, Inc., 143 F.3d 1324, 1334 (10th

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Cir. 1998); Baucom v. Potter, 225 F. Supp. 2d 585, 592 (D. Md. 2002). See also Foster v. Time Warner Entertainment Co., L.P., 250 F.3d 1189, 1195 (8th Cir. 2001) (evidence in retaliation case sufficient for jury to find that plaintiff had an objectively reasonable belief that employers leave policy violated ADA); Shannon v. City of Philadelphia, 1999 WL 1065210, at *6 (E.D. Pa. Nov. 23, 1999) (fact issue on undue hardship because similar leave was offered to others). See also Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 650 (1st Cir. 2000) (“In addition, this court has inquired into whether the company had made earlier policy decisions that it was more profitable to permit an employee additional leave than to hire and train a new employee.”); Hoggatt v. Electrolux Home Products, Inc., 2010 WL 5211604, at *8 (M.D. Tenn. Dec. 16, 2010) (employer rejected request for FMLA leave for apparently valid reasons but “dropped the ball” by failing to consider its own leave policies).

b) But the ADA’s accommodation obligation may require deviation from company policy.

i) By definition any special accommodation requires the employer to treat an employeewith a disability differently, i.e., preferentially. And the fact that the difference intreatment violates an employer’s disability-neutral rule cannot by itself place theaccommodation beyond the Act’s potential reach. … Were that not so, the reasonableaccommodation provision could not accomplish its intended objective .... Neutral break-from-work rules [for instance] would automatically prevent the accommodation of an individual who needs additional breaks from work, perhaps to permit medical visits. US Airways, Inc. v. Barnett, 535 U.S. 391, 397–398 (2002).

ii) Many courts recognize that leave in excess of that granted by company policy, or bythe FMLA, may be necessary. See, e.g., Holly v. Clairson Industries, L.L.C., 492 F.3d1247, 1263 (11th Cir. 2007), quoting EEOC Guidance on Accommodations, supra,Question 17; Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 650 (1st Cir.2000) (unpaid leave beyond the one-year period provided in the employer’s policieswas reasonable accommodation for employees breast cancer); Parker v. ColumbiaPictures Industries, 204 F.3d 326, 338 (2d Cir. 2000) (employer may be liable for firingplaintiff two weeks before the end of his short-term disability leave withoutinvestigating available accommodations); Gibson v. Lafayette Manor, Inc., 2007 WL951473, at *7 (W.D. Pa. Mar. 27, 2007); Dutton v. Johnson County Bd. of CountyCom’rs, 859 F. Supp. 498 (D. Kan. 1994); Shannon v. City of Philadelphia, 1999 WL1065210, at *6 (E.D. Pa. Nov. 23, 1999) (jury could believe that additional three-monthleave after 12-week FMLA leave was a reasonable accommodation). See also Torricov. International Business Machines Corp., 319 F. Supp. 2d 390, 408 (S.D.N.Y. 2004)(employer may have been required to give plaintiff more than the standard 30 days to find a reassignment).

iii) The EEOC guidance is to the same effect. See, e.g., EEOC Technical AssistanceManual, supra, § 3.10(4) (“An employer is not required to provide additional paid leaveas an accommodation, but should consider allowing use of accrued leave, advancedleave, or leave without pay, where this will not cause an undue hardship.”); EEOCGuidance on Accommodations, supra, Question 21, Ex. A (similar); EEOC Guidance

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on FMLA & ADA, supra, Question 12. Thus, although the EEOC has taken the position that employer leave policies are not subject to challenge under the adverse-impact theory, 29 C.F.R. Part 1630 App., § 1630.15(b) and (c), it also requires that employers consider providing leave in excess of company policy as a reasonable accommodation, unless the provision of leave would impose an undue hardship. Id.

7) Fixed Leave Policies

a) The EEOC guidance is clear that an employer may not simply follow its own fixed-leave(or “no fault”) policy and terminate an employee with a disability who needs leave beyondthe set period, without considering whether additional leave could be provided withoutundue hardship. Accommodation Guidance, supra, Question 17. This is consistent with thefact that reasonable accommodation may often require modifying workplace policies. Id.

b) Courts have expressly cited the above Guidance in rejecting fixed-leave arguments, e.g.,Holly v. Clairson Industries, L.L.C., 492 F.3d 1247, 1263 (11th Cir. 2007); Gibson v.Lafayette Manor, Inc., 2007 WL 951473, at *7 (W.D. Pa. Mar. 27, 2007) (similar), andcourts generally follow this analysis. See § 6 above. See also Robinson v. Neodata Services,Inc., 94 F.3d 499, 502 (8th Cir. 1996) (describing employer’s offer of leave in excess ofpolicy as a reasonable accommodation); Morse v. JetBlue Airways Corp., 941 F. Supp. 2d274, 305–306 (E.D.N.Y. 2013) (inflexible fixed-leave policy may violate law). The EEOChas entered into consent decrees to stop such employer practices. See, e.g., E.E.O.C. v.Supervalu, Inc., 2012 WL 7782481 (N.D. Ill. Aug. 8, 2012).9

8) Finite vs. Indefinite Leave

a) Many courts state that an employer is not required to grant indefinite leave while waitingfor an uncertain recovery. See, e.g., Henry v. United Bank, 686 F.3d 50, 60 (1st Cir. 2012);Taylor v. Pepsi-Cola Co., 196 F.3d 1106, 1110 (10th Cir. 1999).

b) Some of those cases are consistent with Barnett, although using inexact pre-Barnettlanguage, because they are based on specific evidence of hardship. See, e.g., Taylor, supra,196 F.3d at 1110; Pickens v. Soo Line R.R., 264 F.3d 773, 778 (8th Cir. 2001); Walsh v.United Parcel Serv., 201 F.3d 718, 727 (6th Cir. 2000); Walton v. Mental Health Assoc. ofSoutheastern Pennsylvania, 168 F.3d 661, 671 (3d Cir. 1999); Corder v. Lucent Tech., Inc.,162 F.3d 924, 928 (7th Cir. 1998).10

c) In sum, the results in many such cases are defensible, even under the proper analysis. Butsimply repeating blanket statements untethered to the language of the statute or theSupreme Court’s analysis is not helpful.

9 Although one circuit upheld the application of a maximum-leave policy, Gantt v. Wilson Sporting Goods Co., 143 F.3d 1042 (6th Cir. 1998), that pre-Barnett decision was solely in the context of a disparate-impact claim. (The plaintiff’s failure-to-accommodate claim failed because she did not request an accommodation.). 10 Other indefinite-leave statements are similarly explainable. See, e.g., Peyton v. Fred’s Stores of Arkansas, 561 F.3d 900 (8th Cir. 2009) (outcome based in part on the plaintiff’s stipulation that indefinite leave is not a reasonable accommodation).

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d) The details of the leave request, and how it would impact the employer, become relevant

when considering the affirmative defense of “undue hardship.” Compare Dark v. Curry County, 451 F.3d 1078, 1090 (9th Cir. 2006) (although a recovery time of an unspecified duration may not be required, the employer “was obligated to consider this option under the particular circumstances”); Cleveland v. Federal Express Corp., 83 Fed. Appx. 74, 78–79 (6th Cir. 2003) (indefinite leave could be a reasonable accommodation unless it would be an undue hardship).

e) The EEOC guidance on reasonable accommodations states that leave, even without a fixed return date, “is a form of reasonable accommodation.” However, the guidance further explained that “if an employer is able to show that the lack of a fixed return date causes an undue hardship, then it can deny the leave.” An undue hardship may be based on evidence of, for example, the disruption to the employer’s operations if it cannot plan around the employee’s absence nor permanently fill the position, or if temporary help of a specialized kind is impossible to find. Accommodation Guidance, Question 44. On the other hand, “in the case of a very large employer, with high turnover and many fungible employees, an unpaid leave of an indefinite or very lengthy duration could be a reasonable accommodation if the leave would enable an easily replaceable employee to eventually perform the essential functions of the employee's position and the employer did not incur significant expenses as a result of maintaining the employee in the status of an employee.” Norris v. Allied-Sysco Food Services, Inc., 948 F. Supp. 1418, 1439–1440 (N.D. Cal. 1996), aff’d, 191 F.3d 1043 (9th Cir. 1999), cert. denied, 528 U.S. 1182 (2000). In addition, an employer may be able to grant such leave initially, but require periodic updates on the plaintiff’s condition and possible return date, so that the employer may reevaluate if necessary. Accommodation Guidance, Question 44. But cf. The Americans With Disabilities Act: Applying Performance And Conduct Standards To Employees With Disabilities, Question 21 (EEOC Jan. 20, 2011) (Employers “have no obligation to provide leave of indefinite duration.”).11

f) Note, too, that state or local law may permit indefinite leave even if federal law does not. See Vangas v. Montefiore Medical Center, ___ F. Supp. 2d ___, 2014 WL 1100153, at *12 (S.D.N.Y. Mar. 20, 2014) (New York City law).

9) Return-to-Work Dates

a) Approximate or probable return-to-work (RTW) dates are sufficient. See, e.g., Garcia-

Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 648 (1st Cir. 2000) (“Some employees, by the nature of their disability, are unable to provide an absolutely assured time for their return to employment, but that does not necessarily make a request for leave to a particular date indefinite.”); Dunn v. Chattanooga Pub. Co., ___ F. Supp. 2d ___, 2014 WL 63683, at *13 (E.D. Tenn. Jan. 8, 2014) (“Consistent among these cases are two requirements: the leave must be finite and it must not be too lengthy. Contrary to CPC’s contention, Dunn’s request met both requirements in this case. Far from some ambiguous, indefinite leave request, Dunn informed Lively her surgery would be scheduled in September, and that she

11 Online at http://www.eeoc.gov/facts/performance-conduct.html.

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would need between four and eight weeks leave for recovery.”); Carter v. General Elec. Co., 2000 WL 321663, at *4 (N.D. Ill. Mar. 21, 2000) (doctor’s belief that plaintiff—who had been off work for four months—could return after one more month was sufficiently definite); Shannon v. City of Philadelphia, 1999 WL 1065210 (E.D. Pa. 1999) (jury could believe that additional three-month leave after 12-week FMLA leave was a reasonable accommodation, in light of doctor’s statement that he was hopeful that plaintiff would be fully fit to return to work in three to six months); EEOC Guidance on Accommodations, supra, Question 44 (“Treatment and recuperation do not always permit exact timetables. Thus, an employer cannot claim undue hardship solely because an employee can provide only an approximate date of return.”); EEOC’s Questions & Answers about Diabetes in the Workplace and the Americans with Disabilities Act (ADA), Question 15.12

b) Shorter, unspecified leave must also be permitted to allow for diagnosis and a return-to-work date. See, e.g., Graves v. Finch Pruyn & Co., Inc., 457 F.3d 181, 185–186 (2d Cir.2006); Dark v. Curry County, 451 F.3d 1078, 1090 (9th Cir. 2006), cert. denied, 549 U.S.1205 (2007) (use of 712 hours of accumulated sick leave “’until the seizure issue could beresolved’ by the adjustment of his medication”); Ambrose v. J.B. Hunt Transport, Inc.,2014 WL 585376, at *19 (D. Or. Feb. 13, 2014) (firing plaintiff six days after he reportedpossible heart condition, and arguably before he had reasonable chance to determineclearance for work, is materially different from allowing months to determine the medicalissue or limitations without success, and is also distinguishable from situation in whichplaintiff was given extensive leave over course of many years); Willinghan v. Town ofStonington, 847 F. Supp. 2d 164, 188 (D. Me. 2012) (request for leave “until we found outexactly what the situation would be” was not necessarily indefinite, and could have referredto employee’s next doctor’s visit or next scheduled treatment, both of which wereproximate). See also Kesecker v. Marin Community College Dist., 2012 WL 6738759, at*6–8 (N.D. Cal. Dec. 31, 2012) (employer permitted lengthy leave when its exam indicatedthat plaintiff was unable to return in near future, but at the end of it the employer refused to seek updated report or return plaintiff to work).

c) Since he was in effect allowed a leave of absence, Defendant “simply could have scheduledhim for another [FFDE] at any point” during that “leave.” (Dkt. No. 47 at 16.) In otherwords, rather than insisting that Plaintiff retire, Defendant could have granted him areasonable leave of absence and a further FFDE to determine if he had improved enoughto be found fit for duty.

d) Extensions of leave may also be reasonable. See, e.g., Ellis v. Ethicon, Inc., 529 Fed. Appx.310, 311 (3d Cir. 2013) (affirming verdict and judgment for plaintiff; return to work wasunsuccessful, resulting in a second STD period, but when plaintiff attempted to return withtemporary accommodations, employer refused, forcing her into LTD and effectivelyterminating her); Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 648-50 (1st Cir.2000) (plaintiff’s request for a two-month extension of leave after 15 months of medicalleave was not a request for indefinite leave and could be denied only if employer showedundue hardship). But cf. Brannon v. Luco Mop Co., 521 F.3d 843, 848–849 (8th Cir.), cert

12 Online at http://www.eeoc.gov/laws/types/diabetes.cfm.

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denied, 555 U.S. 1072 (2008) (employer not required to grant third extension of return-to-work date because by that point leave became indefinite).

e) Moreover, the employer cannot defend on the basis of the lack of a definite return-to-workdate if it is the result of the employer’s failure to engage in the interactive process. Gibsonv. Lafayette Manor, Inc., 2007 WL 951473, at *9 (W.D. Pa. Mar. 27, 2007).

f) Also, before an employer should be able to rely on the “indefiniteness” of a leave request,the interactive process should compel the employer to explain its particular difficulty andinvite the employee to seek an approximate return-to-work invitation. See Wilson v.Sedgwick Claims Management Services, Inc., 2013 WL 6080106, at *8 (S.D. W.Va. Nov.19, 2013) (neither letter from employer nor employer’s accommodation request formindicated that a specific RTW date was required).

g) The employer may also not be able to rely on indefiniteness when the circumstancessuggest that it should have some knowledge of the likely duration of the leave. See Wilsonv. Sedgwick Claims Management Services, Inc., 2013 WL 6080106, at *8 (S.D. W.Va.Nov. 19, 2013) (jury could attribute to employer some knowledge of the potential duration of Wilson’s requested absence based on its knowledge of his condition).

h) But most courts refuse to allow the plaintiff to argue an ability to return if it is contrary tothe statements of the plaintiff’s own doctor. See, e.g., Lane v. Prince George’s CountyPublic Schools, 2013 WL 4541642, at *4 (D. Md. Aug. 26, 2013).

10) Intermittent Leave

a) Intermittent leave may be a reasonable accommodation. See, e.g., Carmona v. SouthwestAirlines Co., 604 F.3d 848, 859–860 (5th Cir. 2010) (noting there was reason to doubt thatattendance was an essential job function given that the employer granted frequent leave);Kennedy v. U.S. Postal Service, 2014 WL 1047820, at *11 (N.D. Ind. Mar. 17, 2014)(allowing brief periods of leave for intermittent migraines may be reasonableaccommodation); Walters v. Mayo Clinic Health System-EAU Claire Hosp., Inc., ___ F.Supp. 2d ___, 2014 WL 549889, at *12 (W.D. Wis. Feb. 11, 2014) (“The cases cited bydefendant, however, involve requests for ‘unlimited sick days’ or an ‘open-ended schedulethat would allow [the employee] to come and go as he pleased.’ … There is nothing in therecord to indicate that Walters sought such a sweeping accommodation, or that such anextreme request would have been necessary to assist Walters in meeting the essentialfunctions of her employment. On the contrary, Walters’ physician advised that hercondition while chronic was triggered by episodic flare-ups and could be accommodatedby as little as a monthly absence, follow-up treatment or a part-time or reduced workschedule.”); Moates v. Hamilton County, ___ F. Supp. 2d ___, 2013 WL 5568723, at *7(E.D. Tenn. Sept. 4, 2013) (10–15 minute break from typing each hour); Myles v.University of Pennsylvania Health System, 2011 WL 6150638 (E.D. Pa. Dec. 12, 2011)(request that disability-related bathroom breaks not count against productivity was a typeof leave request); Thomas v. Bala Nursing and Retirement Center, 2012 WL 2581057, at

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*9 (E.D. Pa. July 3, 2012) (employer failed to show undue hardship posed by nurse’s need for unpredictable leave; no evidence of unavailability of temporaries with requisite skills).

b) Several courts have indicated that an employer may not be able to accommodate extremely irregular attendance. Rios-Jimenez v. Principi, 520 F.3d 31, 42 (1st Cir. 2008); Rask v. Fresenius Medical Care North America, 509 F.3d 466, 470–471 (8th Cir. 2007), cert. denied, 128 S. Ct. 2965 (2008); Earl v. Mervyns, Inc., 207 F.3d 1361, 1366 (11th Cir. 2000) (obsessive-compulsive disorder prevented arriving at work on time regardless of shift); Waggoner v. Olin Corp., 169 F.3d 481, 484 (7th Cir. 1999) (in most instances the ADA does not protect persons who have erratic, unexplained absences, even when those absences are a result of a disability).

c) But the employer may be required to make reasonable accommodation to help the employee bring attendance to acceptable levels. Fritz v. Mascotech Automotive Systems Group, Inc., 914 F. Supp. 1481, 1490–1491 (E.D. Mich. 1996) (employee with poor attendance was not qualified, but employer who has not shown that no reasonable accommodation would have enabled him to reach acceptable level of attendance is not entitled to summary judgment). See also Miller v. Benton County, 2013 WL 785581, at *8 (D. Minn. Mar. 1, 2013) (attendance problems did not occur until employer removed accommodation); The Family and Medical Leave Act, the Americans with Disabilities Act, and Title VII of the Civil Rights Act of 1964, Question 14 (EEOC Nov. 1995).13 There may also be a dispute as to whether the employee was in fact absent, or whether such absences were excused. See Coker v. Enhanced Senior Living, Inc., 897 F. Supp. 2d 1366, 1379 (N.D. Ga. 2012).

d) Whether the employer is required to provide intermittent leave should depend on the particular evidence, analyzed under the ADA’s undue hardship defense. For example, consider whether the employer’s obligation to provide similar intermittent leave under the FMLA may help defeat the undue hardship defense.

11) Attendance as an Essential Function

a) Several courts have characterized regular attendance as an essential job function. See, e.g.,

Rios-Jimenez v. Principi, 520 F.3d 31, 42 (1st Cir. 2008) (“At the risk of stating the obvious, attendance is an essential function of any job.”); Rogers v. International Marine Terminals, Inc., 87 F.3d 755, 759 (5th Cir. 1996) (attendance is essential function of “most” jobs); Tyndall v. Nat’l Education Centers, 31 F.3d 209 (4th Cir. 1994) (a regular attendance level is a required element of most jobs). Cf. Davis v. Florida Power & Light Co., 205 F.3d 1301, 1305–1306 (11th Cir. 2000) (mandatory overtime is akin to job presence, which has been held to be essential function).

b) There are several problems with such a statement:

i) First, it is facially inconsistent with the fact that leave is a reasonable accommodation, and thus contradicts established law. See McNeil v. United States Postal Service, EEOC

13 Online at http://www.eeoc.gov/policy/docs/fmlaada.html.

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Request No. 05960436 (July 28, 1998), referenced online at http://www.eeoc.gov/federal/digest/xi-7-2.cfm (“The [USPS] argued that appellant was not a qualified individual with a disability, because regular attendance was an essential function of her job. The Commission, however, reminded the agency that such an argument would prevent any employee with a disability who is frequently absent for a disability-related reason from being considered qualified. … [The Commission] further found that the agency had failed to show that excusing the appellant’s absences related to her disability would cause an undue hardship.”).

ii) These statements also suggest that telework would never be permitted, but there is littlesupport for that view, and it is contrary to the case law and EEOC guidance. SeeE.E.O.C. v. Ford Motor Co., ___ F.3d ___, 2014 WL 1584674, at *6 (6th Cir. Apr. 22,2014). Cf. Part 14(a)(iii) below.

iii) Another criticism of such statements is that in many cases there appears to be noevidence on point. Compare Hoggatt v. Electrolux Home Products, Inc., 2010 WL5211604, at *9 (M.D. Tenn. Dec. 16, 2010) (“First, it appears that the issue of whetherattendance is an essential job requirement is itself a question of fact.”).

iv) But the determination of essential functions involves consideration of all relevantevidence, 29 C.F.R. pt 1630 App § 1630.2(n), including the evidence listed in 29 C.F.R.pt 1630 App § 1630.2(n)(3)(i). Whether a function is essential is a factual determinationthat must be made on a case-by-case basis based upon all relevant evidence. 29 C.F.R.pt 1630 App § 1630.2(n). See also E.E.O.C. v. Ford Motor Co., ___ F.3d ___, 2014WL 1584674, at *6 (6th Cir. Apr. 22, 2014) (“Determining whether physical presenceis essential to a particular job is a ‘highly fact specific’ question.”); Turner v. HersheyChocolate U.S., 440 F.3d 604, 612 (3d Cir. 2006); Davidson v. America Online, Inc.,337 F.3d 1179, 1191 (10th Cir. 2003); Cripe v. City of San Jose, 261 F.3d 877, 888n.12 (9th Cir. 2001); Hoskins v. Oakland County Sheriff’s Dept., 227 F.3d 719, 726(6th Cir. 2000); Stone v. City of Mount Vernon, 118 F.3d 92, 97 (2d Cir. 1997) (“Plainly, the considerations set out in [29 C.F.R. § 1630.2(n)] are fact-intensive.”).

v) Making blanket statements about “all” or “most” jobs is thus inappropriate. See, e.g.,E.E.O.C. v. Ford Motor Co., ___ F.3d ___, 2014 WL 1584674, at *6 (6th Cir. Apr. 22,2014); McMillan v. City of New York, 711 F.3d 120, 126 (2d Cir. 2013) (“A court mustavoid deciding cases based on ‘unthinking reliance on intuition about the methods bywhich jobs are to be performed.’.…Instead, a court must conduct ‘a fact-specificinquiry into both the employer’s description of a job and how the job is actuallyperformed in practice.’.… The district court appears to have relied heavily on itsassumption that physical presence is ‘an essential requirement of virtually allemployment’ and on the City’s representation that arriving at a consistent time was anessential function of McMillan’s position. While the district court's conclusion wouldbe unremarkable in most situations, we find that several relevant factors here present asomewhat different picture…”); Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d638, 648–649 (1st Cir. 2000) (because of company’s ability to fill positions withtemporary workers, it was not an undue hardship to hold employee’s secretarial job for

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lengthy period; “[s]ome employees, by the nature of their disability, are unable to provide an absolute assured time for their return to employment, but that does not necessarily make a request for leave indefinite”); Ward v. Massachusetts Health Research Institute, Inc., 209 F.3d 29, 35 (1st Cir. 2000) (“Granted, a regular and reliable schedule may be an essential element of most jobs. However, as indicated below, resolution of the issue in each case requires a fact-intensive inquiry into the pattern of the attendance problem and the characteristics of the job in question. And the defendant, who has better access to the relevant evidence, should bear the burden of proving that a given job function is an essential function.”) (citations omitted); Bukta v. J.C. Penney Co., Inc., 359 F. Supp. 2d 649, 668–669 (N.D. Ohio 2004) (not enoughfor employer to claim attendance is essential job function; must show why reasonable period of part-time work would be undue hardship). Other courts, whatever their dicta, actually conduct an individualized, undue-hardship analysis to reach a holding. See, e.g., Brenneman v. MedCentral Health System, 366 F.3d 412 (6th Cir. 2004) (evidenceshowed that pharmacy tech position—which entailed preparing and delivering medications to hospital patients; ordering, receiving, and stocking medications; and posting charges to patients’ accounts—had to be performed at defendant’s premises).

vi) Attendance does not meet the regulatory definition of an essential function. It is ameans to an end, not the end itself. See EEOC Accommodation Guidance at note 65.

vii) These statements are best understood as simply a prediction of the outcome whenconducting the “undue hardship” analysis in cases involving very lengthy orunpredictable leave. But they do not establish a rule to be followed divorced from theparticular facts, and they have no real textual support.

12) Plaintiff should be returned to original job at the end of leave, if possible—See, e.g.,Wanamaker v. Town of Westport Bd. of Educ., 2014 WL 1281940 (D. Conn. Feb. 24, 2014),report and recommendation adopted, 2014 WL 1281937 (D. Conn. Mar. 27, 2014).

13) Proof that leave would have worked—The law does not require that the employee show thatleave is certain, or even likely, to be successful. Instead, plaintiff must show only that the leave“could have plausibly enabled” the person to adequately perform his job. See, e.g., Humphreyv. Mem’l Hosps. Ass’n, 239 F.3d 1128, 1136 (9th Cir. 2001) (ADA does not require employeeto show that leave is certain or even likely to be successful to prove that it is a reasonable accommodation; instead, plaintiff must show only that the leave “could have plausibly enabled” the person to adequately perform his job). See also Prewitt v. United States Postal Service, 662 F.2d 292, 310 (5th Cir. 1981) (adopting “plausible” standard).

14) Common Alternatives to Traditional Leave

a) It is important to note that even if leave is unavailable for whatever reason, there arealternatives that the employer may have to consider, including, e.g.:

i) Reasonable periods of part-time status: e.g., Pals v. Schepel Buick & GMC Truck, Inc.,220 F.3d 495, 498 (7th Cir. 2000) (“Employees who have experienced serious medical

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problems often return to work part-time and increase their hours until they are working full time.”); Parker v. Columbia Pictures Industries, 204 F.3d 326, 335–336 (2d Cir. 2000); Ralph v. Lucent Technologies, Inc., 135 F.3d 166 (1st Cir. 1998) (court upholds preliminary injunction requiring four-week trial return to part-time work for employee recovering from post-traumatic stress disorder); Bukta v. J.C. Penney Co., Inc., 359 F. Supp. 2d 649, 668–669 (N.D. Ohio 2004) (not enough for employer to claim attendance is essential job function; must show why reasonable period of part-time work would be undue hardship); EEOC Accommodation Guidance, Question 22; Questions and Answers: Promoting Employment of Individuals with Disabilities in the Federal Workforce, § IV(10), Ex. 15.14 See also Herrmann v. Rain Link, Inc., 2014 WL 1641973, at *9–10, 13 (D. Kan. Apr, 24, 2014) (sufficient evidence that full-time employment was not essential function, and part-time schedule might be reasonable accommodation). Cf. Part 14(a)(iv) below.

ii) Schedule changes and flexibility: e.g., McMillan v. City of New York, 711 F.3d 120 (2d Cir. 2013); Valle-Arce v. Puerto Rico Ports Authority, 651 F.3d 190 (1st Cir. 2011) (expert said haranguing about leave caused need for more); Holly v. Clairson Industries, L.L.C., 492 F.3d 1247 (11th Cir. 2007); Wandersee v. Farmers State Bank of Hartland, 2012 WL 1666391, at *3 and 5 (D. Minn. May 9, 2012) (request for flexible hours); Woodruff v. LaHood, 777 F. Supp. 2d 33, 42–44 (D.D.C. 2011) (federal “maxiflex” and telecommuting not inherently unreasonable, and given before); Schmidt v. Solis, 766 F. Supp. 2d 225, 228–229 (D.D.C. 2011) (similar); Alastra v. National City Corp., 2010 WL 4739763, at *7–8, 10 (E.D. Mich. Nov. 16, 2010) (later start time); EEOC Accommodation Guidance, Question 43 Ex. B.

iii) Telecommuting: e.g., E.E.O.C. v. Ford Motor Co., ___ F.3d ___, 2014 WL 1584674 (6th Cir. Apr. 22, 2014); Woodruff v. Peters, 482 F.3d 521, 528 (D.C. Cir. 2007); Humphrey v. Memorial Hospitals Ass’n, 239 F.3d 1128, 1136–1137 (9th Cir. 2001), cert denied, 535 U.S. 1011 (2002); Langon v. Department of Health and Human Services, 959 F.2d 1053 (D.C. Cir. 1992) (allowing computer programmer to work at home may be reasonable accommodation); Dahlman v. Tenenbaum, 2011 WL 3511062 (D. Md. Aug. 9, 2011); Woodruff v. LaHood, 777 F. Supp. 2d 33 (D.D.C. 2011); Willinghan v. Town of Stonington, 847 F. Supp. 2d 164 (D. Me. 2012) (no evidence that proposal for partial work-from-home would not work, especially if temporary); Molitor v. Henry Ford Health System, 2013 WL 5435049, at *12 (E.D. Mich. Sept. 30, 2013) (working from home on days when employee had medical appointments or was feeling bad); Johnson v. McGraw-Hill Companies, 451 F. Supp. 2d 681, 707 (W.D. Pa. 2006); Howard v. Gutierrez, 2005 WL 3274394, at *3 (D.D.C. 2005) (telecommuting two days a week could be reasonable); Niimi-Montalbo v. White, 243 F. Supp. 2d 1109, 1125 (D. Haw. 2003); Davis v. Guardian Life Ins. Co. of America, 2000 WL 1848596 (E.D. Pa. 2000); Reasonable Accommodations for Attorneys with Disabilities, Example 14 (EEOC May 23, 2006);15 EEOC Guidance on Accommodations, supra,

14 Online at http://www.eeoc.gov/federal/qanda-employment-with-disabilities.cfm. 15 Online at http://www.eeoc.gov/facts/accommodations-attorneys.html.

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Question 39; Work At Home/Telework as a Reasonable Accommodation (EEOC Feb. 3, 2003);16 EEOC’s new ADA guide for veterans, Question 11.17

iv) Work hardening or gradual return to work: See, e.g., Ellis v. Ethicon, Inc., 529 Fed.Appx. 310, 311 (3d Cir. 2013) (affirming judgment for plaintiff) (doctor supportedRTW from second STD period but requested that she prepare for full-time work bybeing allowed to telework three days per week and get a job coach); Pals v. SchepelBuick & GMC Truck, Inc., 220 F.3d 495, 498 (7th Cir. 2000) (“Employees who haveexperienced serious medical problems often return to work part-time and increase theirhours until they are working full time.”); Fleck v. Wilmac Corp., 2012 WL 1033472,at *8 (E.D. Pa. Mar. 27, 2012); Schumacher v. Granite Services, Inc., 2012 WL 951545,at *7 (N.D.N.Y. Mar. 20, 2012) (fact that full recovery date was not specified did notmean plaintiff could not return on light duty); Burress v. City of Franklin, Tenn., 809F. Supp. 2d 795, 812 (M.D. Tenn. Aug. 17, 2011) (allowing employee to return to workin a light-duty position); Reilly v. Revlon, Inc., 620 F. Supp. 2d 524, 542–543 (S.D.N.Y.2009) (“Revlon does not provide the court with any information about which essentialjob functions could not be fulfilled if plaintiff were to be accommodated with a short-term part-time schedule. Rather, it argues that Reilly's request for part-time work wasunreasonable as a matter of law, because it was really a request for permission to takeopen-ended leave. … But Reilly did not ask her employer for indefinite leave—or evenfor permission to work part-time on an indefinite basis.”).

b) In addition, the fact that the employer has allowed a medical leave does not mean that ithas no other obligations; an employee returning from such leave may require additionalaccommodations. See, e.g., Parker v. Columbia Pictures Industries, 204 F.3d 326, 338 (2dCir. 2000) (employee who proposes accommodation more than two weeks before end ofleave “triggers a responsibility on the employer’s part to investigate that request anddetermine its feasibility. An employer who fails to do so, and instead terminates theemployee based on exhaustion of leave, has discriminated ‘because of’ disability withinthe meaning of the ADA.”).

15) Sufficient Requests for Reasonable Accommodation

a) The employee normally has the duty to request an accommodation (although there areexceptions to that general rule, as noted below).

b) Many courts recognize that asking for leave is a sufficient request for accommodation. See,e.g., Graves v. Finch Pruyn & Co., Inc., 457 F.3d 181, 185 (2d Cir. 2006) (requesting a“couple of weeks” to allow the doctor to evaluate the possibility of returning to work); Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d 955, 967 (10th Cir. 2002) (request for leave was a request for reasonable accommodation); Cehrs v. Northeast Ohio Alzheimer’s Research Center, 155 F.3d 775, 784 (6th Cir. 1998) (doctors note requesting leave); Rascon v. US West Communications, Inc., 143 F.3d 1324, 1335 (10th Cir. 1998) (employee with PTSD not required to request certain type of leave; sufficient to state that

16 Online at http://www.eeoc.gov./facts/telework.html. 17 Online at http://www.eeoc.gov/eeoc/publications/ada_veterans.cfm.

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he wanted to go into treatment program); Martin v. Yokohama Tire Corp., 2013 WL 6002344, at *13 (W.D. Va. Nov. 12, 2013) (sufficient evidence of request for leave despite fact that plaintiff did not use official form; employer’s offer of alternate accommodation also confirmed its knowledge of need for accommodation); Sutherland v. Shinseki, 2013 WL 5944251, at *9 (D. Minn. Nov. 6, 2013); Attis v. Solow Realty Development Co., 522 F. Supp. 2d 623, 629 (S.D.N.Y. 2007) (employee’s statement that she would return from psychiatric hospital in approximately ten days is sufficient request for accommodation); Huffsmith v. Yellow Transp., Inc., 2006 WL 2371977 (M.D. Pa. 2006); White v. Honda of America Mfg., Inc., 191 F. Supp. 2d 933, 950 (S.D. Ohio 2002) (request for extension of medical leave was implicit in requests that employer not fire plaintiff pursuant to the 12-month, maximum-leave policy); Shepherd v. Honda of America Mfg., Inc., 160 F. Supp. 2d 860, 872 (S.D. Ohio 2001) (doctor’s letter requesting leave); Mark v. Burke Rehabilitation Hosp., 1997 WL 189124, at *6 (S.D.N.Y. April 17, 1997) (employer knew employee’s leave was for chemotherapy and had duty to accommodate); Schmidt v. Safeway Inc., 864 F. Supp. 991, 997 (D. Or. 1994) (doctor’s recommendation and discussion during union grievance of leave of absence to undergo alcohol treatment was sufficient).

c) The EEOC guidance on this point is generally consistent. See, e.g., EEOC Guidance onFMLA & ADA, supra, Question 16 (statement that “I need six weeks off to get treatmentfor a back problem” is sufficient request for an ADA accommodation as well as for FMLAleave); EEOC Guidance on Accommodations, supra, Question 1, Ex. B (same); EEOCDiabetes Guidance, supra, Question 9 (custodian tells supervisor he needs three days off tolearn how to manage his diabetes); EEOC Enforcement Guidance on the Americans withDisabilities Act and Psychiatric Disabilities, Question 17 Ex. A (Mar. 5, 2009)18 (hereafter“EEOC Guidance on Psychiatric Disabilities”) (asking for time off because employee is“depressed and stressed”); id. at Ex. B (wife tells HR that employee is disoriented, mentallyfalling apart, and being hospitalized, and asks about procedures for extending leave).

d) There are also several authorities suggesting that a request for FMLA leave serves as arequest for an ADA accommodation. See, e.g., Smith v. Diffee Ford-Lincoln-Mercury, Inc.,298 F.3d 955, 967 (10th Cir. 2002) (sufficient evidence that plaintiff was “qualified” basedon argument that request for FMLA leave was request for accommodation); Villalon v. DelMar College Dist., 2010 WL 3221789, at *7 (S.D. Tex. Aug. 13, 2010); Garcia v. ThirdFederal Sav. and Loan Ass’n of Cleveland, 2007 WL 1235820, at *6 (N.D. Ohio Apr. 26,2007). See also Mascioli v. Arby’s Restaurant Group, Inc., 610 F. Supp. 2d 419 (W.D. Pa.2009) (finding general statement about the need for time off sufficient request for bothFMLA leave and ADA accommodation); Wilson v. Lemington Home for the Aged, 159 F.Supp. 2d 186, 201 (W.D. Pa. 2001) (similar); Cox v. True North Energy, LLC, 524 F. Supp.2d 927 (N.D. Ohio 2007); 29 C.F.R. § 825.702(c)(2) (FMLA regulation clarifying thatrequest for leave may trigger FMLA obligations as well as an accommodation obligationunder the ADA).19 Similarly, there is also support for treating requests for STD or LTD as

18 Online at http://www.eeoc.gov/policy/docs/psych.html. 19 Although there is contrary authority regarding FMLA requests as sufficient ADA leave, it relies on inapposite cases, Trevino v. United Parcel Service, 2009 WL 3423039, at *12 (N.D. Tex. Oct. 23, 2009), or on the fact that the employer had no information about the plaintiff’s disability. Treaster v. Conestoga Wood Specialties, Corp., 2010 WL 2606479,

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accommodation requests. See Swift v. Bank of America, 2009 WL 723521, at *13 and 16 (D. Me. Mar. 16, 2009) (regarding STD), citing Bayonne v. Pitney Bowes, Inc., 2004 WL 213168, at *2 (D. Conn. Jan. 27, 2004), for the proposition that requesting LTD is requesting an accommodation. See also Morton v. GTE North Inc., 922 F. Supp. 1169, 1180 (N.D. Tex. 1996).

e) There are also a variety of exceptions to the normal obligation on the plaintiff to request an accommodation. See, e.g., Employee and Union Member Guide to Labor Law, § 7:63 at nn.7–13 (Thomson Reuters/West, May 2011). For example, finding out than an employee is in a hospital and could not respond to queries put employer on notice that accommodation was required. Durrant v. Chemical/Chase Bank/Manhattan, N.A., 81 F. Supp. 2d 518, 521–522 (S.D.N.Y. 2000). See also EEOC Guidance on Psychiatric Disabilities, supra, Question 17 Ex. B (wife reporting that employee is being hospitalized, and asking about procedures for extending leave and extra time to do so).

16) Delay in accommodation—a delay in granting leave can be an actionable failure to

accommodate. See, e.g., Vanhorn v. Hana Group, Inc., ___ F. Supp. 2d ___, 2013 WL 5719478, at *11 (D. Hawai‘i Oct. 18, 2013).

17) Health insurance coverage while on leave—“FMLA requires employers to maintain employees’ group health plan coverage during FMLA leave on the same conditions as coverage would have been provided if the employee had been continuously employed during the leave period, whereas ADA does not require maintenance of health insurance unless other employees receive health insurance during leave under the same circumstances.” 29 C.F.R. § 825.702(b).

18) Disparate treatment of leave or leave requests—Besides a failure to accommodate claim (which requires proof of an “actual” or “record of” disability), an employee may have a disparate treatment claim (for which “regarded as” disability is enough) if the employer applies leave policies differently to individuals with disabilities. See Kennedy v. U.S. Postal Service, 2014 WL 1047820, at *13 (N.D. Ind. Mar. 17, 2014).

19) Retaliation for requesting leave—Most courts have held that requesting an accommodation is protected activity. See, e.g., Jones v. U.P.S., Inc., 502 F.3d 1176, 1194 (10th Cir. 2007); Wright v. CompUSA, Inc., 352 F.3d 472, 477–478 (1st Cir. 2003); Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 190–191 (3d Cir. 2003); Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1121 (9th Cir. 2000) (en banc), vacated on other grounds, 535 U.S. 391 (2002); Standard v. A.B.E.L. Services, Inc., 161 F.3d 1318, 1328 (11th Cir. 1998); Boles v. Wal-Mart Stores, Inc., 2014 WL 1266216, at *7–9 (D.N.J. Mar. 26, 2014) (decided under state law but collecting federal authority); Crosby v. F.W. Webb, Co., 2:12-CV-135-NT, 2014 WL 1268691 (D. Me. Mar. 26, 2014).

at *34 (M.D. Pa. Apr. 29, 2010); Chapman v. UPMC Health System, 516 F. Supp. 2d 506, 532–533 (W.D. Pa. 2007); McCarron v. British Telecom, 2002 WL 1832843, at *12 (E.D. Pa. Aug. 7, 2002). These latter cases are inconsistent with case law on how much disability-related knowledge is actually required, and in any event the ADAAA’s expansion of the definition of disability may well change the outcome in these cases.

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MEDICAL LEAVES: THE OVERLAP OF DISABILITY, FMLA & ERISA CLAIMS 2014 NELA Convention, Boston, MA

Conflicts Between the ADA and Statements in Applications for Disability Benefits— Outline of Cleveland Issues

Brian East Disability Rights Texas

2222 W. Braker Ln. Austin, TX 78758 (512) 454-4816 tel (512) 454-3999 fax

beast@drtx.org

1) Lead case is Cleveland v. Policy Management Systems Corp., 526 U.S. 795 (1999)

a) SSDI and ADA claims not necessarily inconsistent, because:

i) “An SSA representation of total disability differs from a purely factual statement inthat it often implies a context-related legal conclusion, namely, ‘I am disabled forpurposes of the Social Security Act.’” Id. at 802.

ii) “By way of contrast, when the SSA determines whether an individual is disabled forSSDI purposes, it does not take the possibility of “reasonable accommodation” intoaccount, nor need an applicant refer to the possibility of reasonable accommodationwhen she applies for SSDI.” Id. at 803.

iii) “For another thing, in order to process the large number of SSDI claims, the SSAadministers SSDI with the help of a five-step procedure that embodies a set ofpresumptions about disabilities, job availability, and their interrelation.” Id. at 804.

iv) “The presumptions embodied in these questions … inevitably simplify, eliminatingconsideration of many differences potentially relevant to an individual’s ability toperform a particular job. Hence, an individual might qualify for SSDI under the SSA’sadministrative rules and yet, due to special individual circumstances, remain capableof ‘perform[ing] the essential functions’ of her job.” Id. at 804.

v) “Further, the SSA sometimes grants SSDI benefits to individuals who not only canwork, but are working.” Id. at 805.

b) Thus, there are “many situations in which an SSDI claim and an ADA claim cancomfortably exist side by side.” Id. at 803.

c) But plaintiff must make a ‘Cleveland explanation’

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i) “[W]e hold that an ADA plaintiff cannot simply ignore the apparent contradiction thatarises out of the earlier SSDI total disability claim. Rather, she must proffer a sufficientexplanation.” Id. at 806.

ii) “To defeat summary judgment, that explanation must be sufficient to warrant areasonable juror’s concluding that, assuming the truth of, or the plaintiff’s good-faithbelief in, the earlier statement, the plaintiff could nonetheless ‘perform the essentialfunctions’ of her job, with or without ‘reasonable accommodation.’” Id. at 807.

d) The Cleveland Court recognized two explanations made by the plaintiff in that case:

i) The fact that the SSDI statements “were made in a forum which does not consider theeffect that reasonable workplace accommodations would have on the ability to work.”526 U.S. at 807.

ii) The SSDI statements were “accurate statements” if examined “in the time period inwhich they were made.” Id. at 807.

e) Applies to other kinds of legal claims besides ADA claims:

i) FMLA—Demyanovich v. Cadon Plating & Coatings, L.L.C., ___ F.3d ___, 2014 WL1259603, at *6 (6th Cir. Mar. 28, 2014); Schultz v. Wells Fargo Bank, ___ F. Supp. 2d___, 2013 WL 4782157, at *20 (D. Or. Sept. 5, 2013). But cf. Webb v. Maryland Dept.of Health and Mental Hygiene, 2006 WL 2700748, at *13 (D. Md. Sept. 14, 2006).

ii) State-law disability discrimination claims—Compare Noel v. AT&T Corp., 2014 WL117606, at *9 (E.D. Mo. Jan. 13, 2014).

f) Applies to other kinds of disability benefits besides SSDI:

i) Federal disability retirement benefits—Solomon v. Vilsack, 628 F.3d 555, 557 (D.C.Cir. 2010); Young v. Nicholson, 2007 WL 128821, at *7 (E.D. Wash. Jan. 12, 2007).

ii) Private disability benefits—Bisker v. GGS Information Services, Inc., 342 Fed. Appx.791, 795 n.5 (3d Cir. 2009); Finan v. Good Earth Tools, Inc., 565 F.3d 1076, 1079 (8thCir. 2009) (“When Finan applied for benefits under his private long-term disabilitypolicy in April 2003, he met the policy’s requirements: a ‘disability or sickness,’ adoctor’s care, and at least a 20 percent decrease of income. This does not prove thatFinan was disabled under the ADA.”); Tse v. New York University, 2013 WL 5288848(S.D.N.Y. Sept. 19, 2013) (LTD benefits); Ramirez v. Merced County, 2013 WL4780440 (E.D. Cal. Sept. 5, 2013).

iii) Public employee disability retirement— Justice v. Pike County Bd. of Educ., 348 F.3d554, 564–565 (6th Cir. 2003); Hinson v. City of Columbia, 2013 WL 5409140 (D.S.C.Sept. 24, 2013); Ramirez v. Merced County, 2013 WL 4780440 (E.D. Cal. Sept. 5,2013); Atkinson v. Batts, 2013 WL 3873654, at *3 (D. Md. July 24, 2013).

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iv) Worker’s compensation—Fox v. General Motors Corp., 247 F.3d 169, 177–178 (4thCir. 2001) (application for total temporary disability satisfactorily explained).

v) Veteran’s disability benefits—Note that the district court refused to apply Cleveland,and barred plaintiff’s ADA claim, in Chancey v. Fairfield Southern Co., Inc., 949 F.Supp. 2d 1177 (N.D. Ala. 2013). At the time of this writing, NELA members KennyHaynes and Charles Guerrier are appealing this decision to the 11th Circuit.

2) Most common “Cleveland explanations”

a) Consideration of reasonable accommodations

i) Plaintiff in Cleveland explained that her SSDI statements “were made in a forum whichdoes not consider the effect that reasonable workplace accommodations would have onthe ability to work.” 526 U.S. at 807.

ii) There are numerous cases accepting such explanations. See, e.g., Cox v. Wal-MartStores Inc., 441 Fed. Appx. 547, 549 (9th Cir. 2011); Solomon v. Vilsack, 628 F.3d 555,557 (D.C. Cir. 2010); DeRosa v. National Envelope Corp., 595 F.3d 99 (2d Cir. 2010);Bisker v. GGS Information Services, Inc., 342 Fed. Appx. 791, 794–795 (3d Cir. 2009)(“In fact, Bisker specifically qualified her assertion of disability by mentioning (in herinitial SSDI submission, at least) that she had been denied a prior request to work fromhome.”); Giles v. General Elec. Co., 245 F.3d 474, 485 (5th Cir. 2001) (“While Gilesconceded at trial that he suffers pain and labors under a permanent lifting restriction—the two primary assertions in his application—he contends that a reasonableaccommodation would enable him to work at his old position, despite thoseimpairments.”); Herrmann v. Rain Link, Inc., 2014 WL 1641973, at *11 (D. Kan. Apr,24, 2014); Lewis v. New York City Transit Auth., 2014 WL 1343248, at *8–9 (E.D.N.Y.Mar. 31, 2014) (religious-discrimination case) (context matters; no direct andirreconcilable contradiction because statements in application that she was unable towork as a bus driver did not bar claim that she could have been returned to station agentposition as accommodation); Hinson v. City of Columbia, 2013 WL 5409140, at *8(D.S.C. Sept. 24, 2013) (“Because Plaintiff's physician had not given him additionalreturn to work notes or restrictions, an SCRS representative, as Plaintiff explains,instructed him to check “no” on the questions in the report. Plaintiff further avers thatthe disability review report, like the initial disability benefits application, did not takeinto account his ability to work with reasonable accommodation.”); Tse v. New YorkUniversity, 2013 WL 5288848, at *9 (S.D.N.Y. Sept. 19, 2013) (in applying for LTDbenefits plaintiff asserted that she was previously provided an assistant as anaccommodations, but the loss of that accommodation left her unable to work; plaintiffconsistently claimed that she can perform her essential job functions with the aid oflaboratory assistants, and had done so in the past); Sigl v. Travel Tags, Inc., 2013 WL5223681, at *6 (D. Or. Sept. 16, 2013) (“A very recent Ninth Circuit case explainsCleveland’s sufficient explanation standard is ‘not an exceedingly demanding one.’”);Ramirez v. Merced County, 2013 WL 4780440, at *4–5 (E.D. Cal. Sept. 5, 2013)

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(“When an entity or agency makes no inquiry as to the ability to perform a job with accommodation, there is not necessarily an inconsistency with the ADA when the individual does not mention the ability to perform her job with accommodation.” … [R]estrictions on typing would have precluded performing job but for dictation software she sought as accommodation); Molina v. Pocono Medical Center, 2013 WL 4520458, at *4–5 (M.D. Pa. Aug. 26, 2013) (“A general assertion in the SSDI submission that an individual is unable to work due to a disability does not therefore commit her to any position as to whether she could work if reasonably accommodated. … In this matter, plaintiff has both stated her case consistently and produced sufficientevidence to convince a reasonable juror that she could still perform the essential functions of her job with reasonable accommodation.”); id. at *5 (statements made on SSDI application must be inferred to include the language of reasonable accommodation, so statement that doctors did not want plaintiff to go back to work should be inferred to mean that they did not want her to go back without reasonable accommodations); Morgan v. Hawthorne Children’s Psychiatric Hosp., 2013 WL 3946112, at *5 (E.D. Mo. July 31, 2013) (“Plaintiff has explained that her SSDI contention is consistent with her ADA claim, because she would have been able to work if accommodated with an oxygen unit. This explanation is supported by plaintiff's statements in her SSDI application that she stopped working because she was denied an accommodation.”); Lee v. Harrah’s New Orleans, 2013 WL 3899895, at *7 (E.D. La. July 29, 2013) (plaintiff’s explanation cannot simply disavow SSDI representations; although application represented that she was totally disabled after her last day working for employer, it was sufficient explanation that this was date they removed accommodation); Morse v. JetBlue Airways Corp., 941 F. Supp. 2d 274, 289–290 (E.D.N.Y. 2013) (sufficient explanation in fact that plaintiff “has consistently asserted that she could have continued to work with a reasonable accommodation.”); E.E.O.C. v. Western Trading Co., Inc., 2012 WL 1460025, at *6 (D. Colo. Apr. 27, 2012) (“Plaintiffs have presented evidence that many employers have been able to accommodate workers with epilepsy.”); Ugactz v. United Parcel Service, Inc., 2013 WL 1232355, at *10–11 (E.D.N.Y. Mar. 26, 2013); Goeden v. Darigold, Inc., 2012 WL 6706192, at *3 (D. Idaho Dec. 26, 2012). See also Young v. Nicholson, 2007 WL 128821, at *7 (E.D. Wash. Jan. 12, 2007) (“Plaintiff testified that she did not want to apply for disability retirement and she would rather work, but she concluded that she did not have any choice, since Defendants continued to fail to reasonably accommodate her. That decision should not be now held against her.”).

iii) Note that unlike Social Security, some disability benefit programs do include anaccommodation component, which may make it harder to use accommodations as theCleveland explanation. But cf. Goeden v. Darigold, Inc., 2012 WL 6706192, at *3–4(D. Idaho Dec. 26, 2012) (employer argued that under Standard Insurance’s LTDpolicy, plaintiff represented he could not perform job’s “material duties,” defined as“the essential tasks, functions, and operations ... that cannot be reasonably modified oromitted;” but plaintiff also stated to the insurance company that “I still believe that Iam able to work with reasonable accommodations and I have been seeking other jobs;”plaintiff received benefits two months later despite that representation).

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b) Difference in definitions of disability—Finan v. Good Earth Tools, Inc., 565 F.3d 1076,1079 (8th Cir. 2009) (“First, the Social Security Administration did not find that Finan wasincapable of performing the essential functions of his job at Good Earth. Rather, theAdministration determined that considering his age, education, work experience, andresidual functional capacity, there are not a significant number of jobs in the nationaleconomy that he could perform.”). See also Atkinson v. Batts, 2013 WL 3873654, at *3 (D.Md. July 24, 2013) (employer failed to put in record the definition of disability under policedisability retirement program); EEOC Enforcement Guidance on the Effect ofRepresentations Made in Applications for Benefits on the Determination of Whether aPerson Is a “Qualified Individual with a Disability” Under the Americans with DisabilitiesAct of 1990 (ADA), § II(B) (Feb. 12, 1997), http://www.eeoc.gov/policy/docs/qidreps.html(definition of terms like “disability” in statute or insurance policy at issue, content ofrepresentations, and their purpose should be considered in evaluating weight given torepresentations made on disability applications).

c) Time Frame

i) “[T]he nature of an individual’s disability may change over time, so that a statementabout that disability at the time of an individual’s application for SSDI benefits maynot reflect an individual’s capacities at the time of the relevant employment decision.”Cleveland, 526 U.S. at 805. Plaintiff in Cleveland argued that SSDI statements were“accurate statements” if examined “in the time period in which they were made.” Id. at807.

ii) See also EEOC Enforcement Guidance on the Effect of Representations Made inApplications for Benefits on the Determination of Whether a Person Is a “QualifiedIndividual with a Disability” Under the Americans with Disabilities Act of 1990 (ADA),§ II(B) (Feb. 12, 1997), http://www.eeoc.gov/policy/docs/qidreps.html (time period towhich representations made on disability applications relate should be considered in evaluating weight given to representations made on disability applications).

iii) Plaintiff got better—Demyanovich v. Cadon Plating & Coatings, L.L.C., ___ F.3d ___,2014 WL 1259603, at *7 (6th Cir. Mar. 28, 2014) (although plaintiff’s admitteddifficulty standing for long periods may have prevented performing his job, a jury couldhave concluded that he was able to do the job by the end of his FMLA leave); Herrmannv. Rain Link, Inc., 2014 WL 1641973, at *11 (D. Kan. Apr, 24, 2014); Atkinson v.Batts, 2013 WL 3873654, at *3 (D. Md. July 24, 2013) (request for reinstatement indicated recovery from disability); Gibson v. Lafayette Manor, Inc., 2007 WL 951473, at *14 (W.D. Pa. Mar. 27, 2007); Zieba v. Showboat Marina Casino Partnership, 361 F. Supp. 2d 838, 844 (N.D. Ind. 2005). See also E.E.O.C. v. Rexnord Industries, LLC, 966 F. Supp. 2d 829, 841 (E.D. Wis. 2013) (“Sullivan testified that at the time she applied for SSDI she felt she could not work; however, she understood that if anything changed and she subsequently believed she could work, she would not be entitled to benefits … and she was able to work again even before she received a decision from the Social Security Administration.”).

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iv) Plaintiff got worse—Finan v. Good Earth Tools, Inc., 565 F.3d 1076, 1079 (8th Cir.2009) (SSA found plaintiff did not have a disability prior to his termination althoughhe did afterwards); Griffith v. Wal-Mart Stores, Inc., 135 F.3d 376, 384 (6th Cir. 1998)(statements made in “Daily Living Report” were made 10 months after discharge, andafter plaintiff’s condition worsened, in part due to discrimination); LeClair v.HealthEast Care System, 2013 WL 673858, at *4 n.4 (D. Minn. Feb. 25, 2013)(plaintiff chose to have knee surgery after employer fired her, and applied for SSDIwhile recuperating); Ryan v. Pace Suburban Bus Div. of Regional Transp. Authority,2012 WL 5077725, at *4–5 (N.D. Ill. Oct. 18, 2012) (plaintiff was injured on October31, 2008, cleared to return to work in early December, fired two months later, andapplied for numerous jobs thereafter; his condition deteriorated, he became unable towork two years later, and ultimately applied for SSDI three years after the injury, whichwas approved, with an onset date of October 31, 2008; court held that “passage of timesupports the inference that Ryan’s injury may not have been as severe in 2009 as it wasin 2011 … [and the ] inconsistency between Ryan’s 2011 SSA application and his ADAclaim have been satisfactorily explained….”); E.E.O.C. v. Sharp Mfg. Co. of America,534 F. Supp.2d 797, 803–804 (W.D. Tenn. 2008); Smyth v. Wawa, Inc., 2008 WL741036, at *10 (E.D. Pa. 2008) (“That is, given that the statements were made morethan a year after plaintiff's termination, when she had sustained additional knee injuries,they do not necessarily contradict the allegation that plaintiff was able to perform herwork with reasonable accommodation when she was terminated in October 2004.”).Note, however, that when the explanation is a deteriorating condition, back and frontpay may terminate at the point that the plaintiff’s disability admittedly prevented anyworking.

d) Statements made were not absolute. Demyanovich v. Cadon Plating & Coatings, L.L.C.,___ F.3d ___, 2014 WL 1259603, at *6 (6th Cir. Mar. 28, 2014) (psychologist whoevaluated plaintiff for SSDI claim concluded that he was limited in several work-relatedabilities, but did not conclude that he was incapable of working in any capacity); id. at *7(plaintiff’s statement that he was not working due to health reasons could be read asindicating that he believed he was fired because of his health); Turner v. Hershey ChocolateU.S., 440 F.3d 604, 608 (3d Cir. 2006) (plaintiff’s statement that pain impeded her abilityto perform certain job functions “is hardly a statement of total disability,” nor did it“address the severity of the pain and whether such pain would make her incapable ofperforming the essential functions”); E.E.O.C. v. Rexnord Industries, LLC, 966 F. Supp.2d 829, 841 (E.D. Wis. 2013) (“Sullivan testified that at the time she applied for SSDI shefelt she could not work; however, she understood that if anything changed and shesubsequently believed she could work, she would not be entitled to benefits.”); Molina v.Pocono Medical Center, 2013 WL 4520458, at *5 (M.D. Pa. Aug. 26, 2013) (statementsmade on SSDI application must be inferred to include the language of reasonableaccommodation, so statement that doctors did not want plaintiff to go back to work shouldbe inferred to mean that they did not want her to go back without reasonableaccommodations); Morse v. JetBlue Airways Corp., 941 F. Supp. 2d 274, 289 (E.D.N.Y.2013) (general statement in SSDI application that plaintiff “became unable to work becauseof [her] disabling condition on July 8, 2005,” and that she remained disabled, “should

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generally be taken as a statement that ‘I am disabled for the purposes of the Social Security Act’ … [and] by itself, does not give rise to judicial estoppel.”).

e) Statements made were not inconsistent with ability to do particular job. Demyanovich v.Cadon Plating & Coatings, L.L.C., ___ F.3d ___, 2014 WL 1259603, at *7 (6th Cir. Mar.28, 2014) (plaintiff’s admission of difficulty with standing, lifting, and walking mightprevent some jobs, but not the less-demanding jobs he held); DeRosa v. National EnvelopeCorp., 595 F.3d 99, 104–105 (2d Cir. 2010) (plaintiff’s statement that he was limited in hiscomputer and phone use may have referred to social interactions, since he had done suchtelework for two years before accommodations withdrawn; such tasks may have causedsignificant pain, but he may have been able to endure it to keep his job even if he could nottolerate further pain from optional, social activities); Bisker v. GGS Information Services,Inc., 342 Fed. Appx. 791, 795 (3d Cir. 2009) (“The proper focus of the judicial estoppelanalysis is not on Bisker’s general contention that she is unable to work, but rather on thespecific factual representations she made in support of that contention. … But the pictureBisker painted of her condition in her SSDI submissions is not any different from the oneshe painted in her accommodation request.”); Finan v. Good Earth Tools, Inc., 565 F.3d1076, 1079 (8th Cir. 2009) (“When Finan applied for benefits under his private long-termdisability policy in April 2003, he met the policy’s requirements: a ‘disability or sickness,’a doctor’s care, and at least a 20 percent decrease of income. This does not prove that Finanwas disabled under the ADA.”); Lewis v. New York City Transit Auth., 2014 WL 1343248,at *8–9 (E.D.N.Y. Mar. 31, 2014) (religious-discrimination case) (context matters; nodirect and irreconcilable contradiction because statements in application that she wasunable to work as a bus driver did not bar claim that she could have been returned to stationagent position as accommodation); Hinson v. City of Columbia, 2013 WL 5409140, at *8(D.S.C. Sept. 24, 2013) (“Moreover, Plaintiff's representation in the Member's DisabilityReport submitted with his benefits application that his work restrictions included ‘no liftingover 30 [pounds], and no excessive bending’ is consistent with the argument he makesbefore the court.”); Schultz v. Wells Fargo Bank, ___ F. Supp. 2d ___, 2013 WL 4782157,at *21 (D. Or. Sept. 5, 2013) (plaintiff explained that although her age, disabilities, andwork history could preclude her from obtaining a new job, they did not preclude her fromsuccessfully working for the employer with the same medical problems, and she filed forSSDI to mitigate). But cf. Wakim v. Michael Cetta, Inc., ___ Fed. Appx. ___, 2014 WL1228691 (2d Cir. Mar. 26, 2014) (“While it certainly is the case that the SSA does notconsider reasonable accommodation in determining applications for disability benefits,Wakim represented that he was unable to perform the accommodation job, not that he wasunable to perform a task from which he sought accommodation.”).

f) Avoiding specific factual representations in the benefits application can help. See, e.g.,Giles v. General Elec. Co., 245 F.3d 474, 485 (5th Cir. 2001) (“Giles’s SSDI applicationis similar to those in Cleveland and Parker, in that it contains no specific assertionsresisting his explanation that he could perform his job with reasonable accommodation”);Molina v. Pocono Medical Center, 2013 WL 4520458, at *4 (M.D. Pa. Aug. 26, 2013)(“When there is no discrepancy, however, there is no need for an explanation. … Theproper focus on judicial estoppel as applied to SSDI and ADA claims is not whether therewas a general claim of inability to work on the SSDI claim, but rather on the factual

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contradictions between the two claims.”); Ugactz v. United Parcel Service, Inc., 2013 WL 1232355, at *11 (E.D.N.Y. Mar. 26, 2013); E.E.O.C. v. Western Trading Co., Inc., 2012 WL 1460025, at *5 (D. Colo. Apr. 27, 2012) (plaintiff with seizure disorder qualified for SSDI based on listed impairment rather than affirmative statements).

3) Other factors that can help explain

a) No sworn statements—Tullos v. City of Nassau Bay, 137 Fed. Appx. 638, 647 (5th Cir.2005) (“To determine whether Tullos’s receipt of disability benefits renders himunqualified for purposes of an ADA claim, we would need to evaluate the specificassertions he made to obtain those benefits, along with his explanation for anyinconsistencies. There is no evidence in the record before us as to any particularrepresentations made by Tullos in applying for his benefits.”); Murphey v. City ofMinneapolis, 358 F.3d 1074, 1078 (8th Cir. 2004) (plaintiff’s application made no swornstatements of total inability to work); Gibson v. Lafayette Manor, Inc., 2007 WL 951473,at *13–14 (W.D. Pa. Mar. 27, 2007); Fliss v. Movado Group, Inc., 2000 WL 1154633, at*5 (N.D. Ill. Aug. 14, 2000) (unsworn statements to an insurance company not to beconsidered). But cf. Alford v. Turbine Airfoil Coating & Repair, LLC, 2014 WL 1516336, at *7 (S.D.N.Y. Apr. 17, 2014) (court mistakenly relied on SSA decision rather than on plaintiff’s statements); Sigl v. Travel Tags, Inc., 2013 WL 5223681, at *6 (D. Or. Sept. 16, 2013) (observing that there may not be a requirement for sworn statements, but finding sufficient Cleveland explanation).

b) Statements made by one other than plaintiff— Morse v. JetBlue Airways Corp., 941 F.Supp. 2d 274, 290 (E.D.N.Y. 2013) (statement in doctor’s report will not support estoppel).

c) Statement in application that applicant believes he/she is able to work withaccommodations, and has been looking for other jobs—Goeden v. Darigold, Inc., 2012WL 6706192, at *3–4 (D. Idaho Dec. 26, 2012) (LTD benefits).

d) Employer’s encouragement to apply? See Young v. Nicholson, 2007 WL 128821, at *7(E.D. Wash. Jan. 12, 2007).

e) Disability insurance plans that require employees to apply for SSDI may mean thatstatements in SSDI applications are more easily explained. Compare Thompson v. E.IDuPont deNemours & Co., 140 F. Supp. 2d 764, 777–778 (E.D. Mich. 2001) (“there iseven less reason to treat Plaintiff as ‘bound’ by one of these two theories—namely, hisclaim of ‘disability’ on his application for SSDI benefits—where it appears that he pursuedthis theory only begrudgingly and at the direction of Defendant, and where this theory wasrejected by the SSA.”).

f) No benefits awarded

i) “Finally, if an individual has merely applied for, but has not been awarded, SSDIbenefits, any inconsistency in the theory of the claims is of the sort normally toleratedby our legal system.” Cleveland, 526 U.S. at 805.

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ii) E.E.O.C. v. Rexnord Industries, LLC, 966 F. Supp. 2d 829, 841 (E.D. Wis. 2013)(“Because Sullivan’s application for SSDI benefits was rejected, this case falls underthe ‘pleading in the alternative’ explanation….”).

iii) But cf. Hawkins v. Schwan’s Home Service, Inc., 2013 WL 2368813 (W.D. Okla. May28, 2013).

4) Practical suggestions

a) One NELA member has her clients include— handwritten just above the signature on theSSDI form that asks for a list of all work and abilities—the statement: “I believe I can workwith reasonable accommodation for my disability.” She reports that this has not interferedwith approval. See “Effect of Social Security Disability on ADA Claims,” NELAExchange, Apr. 19, 2014.

b) Amicus help

i) The amicus brief for the U.S. in Cleveland was co-authored by the EEOC and the SSA,is available at 1998 WL 839956, and is also online at, inter alia,http://www.justice.gov/osg/briefs/1998/3mer/1ami/97-1008.ami.mer.pdf.

ii) Other amicus possibilities.

5) Is this a jury issue?

a) Suggesting that it is: Verhoff v. Time Warner Cable, Inc., 299 Fed. Appx. 488, 498 (6thCir. 2008); Noel v. AT&T Corp., 2014 WL 117606, at *9 (E.D. Mo. Jan. 13, 2014) (understate law, it is an evidentiary matter for the jury); E.E.O.C. v. Rexnord Industries, LLC, 966F. Supp. 2d 829, 841 (E.D. Wis. 2013) (“A jury can evaluate what this apparentinconsistency means for the ADA claim.”).

b) Upholding jury instructions: DeCaro v. Hasbro, Inc., 580 F.3d 55 (1st Cir. 2009); Verhoffv. Time Warner Cable, Inc., 299 Fed. Appx. 488 (6th Cir. 2008); Benaugh v. Ohio CivilRights Com’n, 278 Fed. Appx. 501 (6th Cir. 2008).

c) Apparently refusing such an instruction: Bever v. Titan Wheel Intern., Inc., 6 Fed. Appx.401 (7th Cir. 2001); Alley v. Charleston Area Medical Center, Inc., 216 W.Va. 63, 76, 602S.E.2d 506, 519 (W. Va. 2004).

d) Granting motion in limine on issue: Jones v. Standard Insurance Company, 2013 WL5549779 (N.D. Ill. Oct. 8, 2013); E.E.O.C. v. Western Trading Co., Inc., 2013 WL 607769(D. Colo. Feb. 19, 2013); Baumgarden v. Challenge Unlimited, Inc., 2006 WL 334253(S.D. Ill. Jan. 11, 2006).

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e) Rejecting motion in limine: Lupe v. Shinseki, 2013 WL 592669 (N.D.N.Y. Feb. 14, 2013);Soliday v. 7-Eleven, Inc., 2011 WL 1519670 (M.D. Fla. Apr. 20, 2011); Tiffany v. City ofTopeka, 2010 WL 4226220 (D. Kan. Oct. 21, 2010); Rogers v. Wal-Mart Stores East, L.P.,2008 WL 656078 (E.D. Tenn. Mar. 6, 2008) (expressing intent to instruct jury).

11/7/2014

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Leave Issues Under FMLA and ADA

Terri C. Davis

tcd@shuttleworthlaw.com

Types of Leave

Sick Leave/PTO

FMLA

Workers’ Compensation

Short Term/Long Term Disability

ADA Accommodation

Military Leave

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Workers Compensation

Types of Temporary Leave TTD – temporary total disability

Receives full benefit

TPD – partial or light duty Receives partial benefit

Light Duty Issues

Optional, not required to be offered

If offered, communicate clearly, and in writing if possible

Make sure you have current restrictions from doctor

And follow them!

If refuse, no benefits during refusal

Not required to create a new position

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FMLA Leave Issues

Eligibility Employer – 50 or more employees within 75 miles

In 20 or more weeks in the preceding year

FMLA Leave

Employee eligibility

1. work for a covered employer

2. have worked for an employer for a total of 12 months(NOT in the last yr)

3. 1250 hrs in the previous 12 months

11/7/2014

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FMLA Leave

Up to 12 workweeks in 12 month period

UNPAID

FMLA Reasons

Birth or Adoption

To care for a spouse, child or parent with a serious medical condition

Employee’s own serious health condition

Qualifying exigency related to military service of employee or family member (12 weeks)

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FMLA Notice

What notice is required to Employer? 30 day notice if foreseeable

Or as soon as practicable if not

Can require employee to comply with other employer policies while on leave – i.e., call-in policies

FMLA Notice

Employee does not need to use magic words – Must train supervisors/managers to recognize

potential FMLA situations and refer employees to HR when appropriate

If employee has told you of a serious health condition, and is missing work, or having difficulty working . . .

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FMLA Notice

What notice is required to Employee? Posters, policies, training

Advising may be eligible if know of serious health condition and need for leave

Must tell employee if it is being treated as FMLA leave

Serious Health Condition

Very specific requirements

Inpatient Care

Continuing treatment Period of incapacity >3 days with subsequent

treatment

Incapacity related to pregnancy

Incapacity or treatment for chronic serious health condition

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Certification of Health Care Provider

To be completed by employee’s doctor

Employer can get 2nd or 3rd opinion at employer’s expense

Can require periodic recertification

Can get clarification from doctor, but it must be someone other than employee’s direct supervisor

FMLA Leave

Must maintain health benefits while on leave

Must restore to equivalent job when employee returns

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Intermittent Leave

Perhaps the single biggest issue for many employers

Can be taken in increments as small as you allow pay to be broken down

If for planned medical treatment, employee has duty to schedule so as to limit disruption to employer

FMLA Leave

Employer CAN require the employee to use paid leave while on FMLA Sick leave, vacation

But must inform the employee of this policy

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USERRA

Military Leave

Military deployment can’t destroy FMLA eligibility

Entitled to 26 weeks to care for injured family member with a serious injury or illness

Entitled to same benefits as if had been continuously employed

USERRA

Covered Servicemember = current member of the armed forces, including national guard and reserves

Who is undergoing treatment for a serious injury or illness

Defined as injury or illness incurred in the line of duty while on active duty that leaves him unfit to perform duties

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How is Exigency leave different?

Arises out of fact that family member is on active duty, or is being called up to active duty in support of a contingency operation

Does not apply to family members of military members in the regular armed forces, only guard and reserve

ADA

Employer may require an employee who requests accommodation (including leave) to provide medical documentation Nature

Severity

Duration, and

Extent of impairment

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ADA

No documentation? No accommodation required

Reasonable time to provide

ADA

Employer’s obligation is to engage in interactive process to determine if there are any reasonable accommodations that will allow the employee to perform essential functions

Again – employee need not use magic words

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ADA

Again, if employer has enough information to identify disability as an issue, it has an obligation to inquire further

ADA Obligations

What accommodations are reasonable? reduced work schedule

Regular time off for treatment

Flexible start time

Leave of absence for a definite period, if leave will allow employee to return to work and perform essential functions

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ADA

What accommodations are unreasonable? Eliminating essential functions

Irregular, erratic, unreliable attendance

Leave of absence for an indefinite period of time

Anything that would create so severe an economic hardship as to threaten continued viability of company

FMLA/ADA Interaction

FMLA applies if covered entity and eligible employee

ADA if not a covered entity, before employee become eligible for FMLA leave or after employee exhausts FMLA leave

Must always consider which statute applies

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Requests Leave, Not Work Related

FMLA – Suggest applying for FMLA leave if the employee

is eligible

Assist with paperwork

Intermittent or Full time leave?

STD/LTD benefits available?

Promptly process the FMLA Certification of Health Care provider and notify employee if FMLA is granted

Requests Leave, Not Work Related

Can require recertification during leave

Have written policies regarding call-in, recertification requirements

Make sure benefits are continued

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Requests Extension of Leave

If FMLA, can have up to 12 weeks total per 12 months

You can offer extension, but clearly state that employee might not be returned to same/equivalent job – loses that protection after 12 weeks

You can require additional medical documentation

Requests Extension of Leave

STD or LTD to offer at this point?

May be required to discuss additional leave as a reasonable accommodation under ADA No longer can quibble over whether it is really a

“disability”

Assume it is if they have been unable to work, and engage in the dialog

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Wants to Return Light Duty

If workers’ compensation injury, then encourage light duty – get release from doctor with clear restrictions

Can be modified duties or hours – be creative

It is to your benefit to have employee back to work, even at light duty

Wants to Return Light Duty

If not workers’ compensation

FMLA does not require the employer to offer a light duty option, and employer cannot penalize employee for refusing light duty option

Q: Would it benefit the employer to have employee working in some modified capacity?

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Full Return to Work

Do you want a fitness for duty evaluation?

Cannot require 100%, no restrictions

Are there issues about the employee’s or other employees’ safety?

If FMLA, must be same or equivalent position

Full Return to Work

What if the position is no longer available?

What is considered equivalent?

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Employee Has Permanent Restrictions

If workers’ compensation – can you accommodate the restrictions in the position, or modify the position? – do it if you can

If not workers’ compensation – probably need to engage in dialog about reasonable accommodations under ADA

Scenario 1

Depressed employee wants time off

FMLA, or ADA or both? Medical documentation of disability?

Challenging the diagnosis - May request second opinion – can not be a doctor with

whom the employer has a relationship

Third doctor may be used to break a tie

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What must the employer do?

Engage in the interactive process – document discussions and accommodations that are made

Remember: employee does not need to use the word “accommodation”

If FMLA qualified and receive certification of health care provider, then allow time off

Scenario 1

After FMLA is exhausted – does ADA apply?

Medical documentation of disability?

Any accommodations that would allow her to return to work?

Additional leave of absence if the doctor says she will be able to return to work in a certain period of time

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Questions?

tcd@shuttleworthlaw.com