Court Addresses Interplay Between FMLA and ADA Obligations
One particularly vexing issue that employers are often faced with is the confluence of FMLA and ADA concerns that arise when an employee experiencing a serious health condition – which may also qualify as a disability for purposes of the ADA – is approaching the end of his or her FMLA leave allotment. While the employer's obligations under the FMLA can be determined by reference to concrete obligations imposed by that statute, the obligations imposed by the ADA frequently require a case-by-case determination of whether the accommodation needed by an employee is reasonable under the circumstances. The interplay between these statutes frequently causes significant headaches for employers. This issue was recently taken up by the U.S. District Court for the District of Maryland. This article examines the case, which has significant lessons for employers attempting to maintain compliance with these statutes.
In a recent decision, the U.S. District Court in Baltimore addressed an all-too-common issue that many employers face involving employees who are away from work for a serious health condition and have also exhausted their leave under the Family and Medical Leave Act (FMLA). (Moore v. Dep't of Public Safety and Correctional Services, Civil Action No. CCB-11-553, D. Md. September 12, 2011)
Oftentimes, employers are eager to resolve the issue by simply concluding that once the 12-week FMLA leave is exhausted, the employee can be terminated. However, the resolution of this issue is often not that easy as the employee's serious health condition that triggered the FMLA coverage in the first place oftentimes constitutes a disability under the Americans With Disabilities Act (ADA) or the Rehabilitation Act of 1973 (Rehab).
The resolution of the ADA/Rehab issue requires a separate level of analysis before any decision is made to terminate. Let's take a look at this recent District Court decision.
Arlene Moore began working at the Maryland Department of Public Safety and Correctional Services (Patuxent Institution) located in Jessup, Maryland, in July 1993. Moore worked at the facility for 17 years and consistently received satisfactory job performance evaluations throughout her employment.
In October 2009, Moore was diagnosed with stage three breast cancer. On November 15, 2009, Moore was granted medical leave to receive treatment for cancer, which included a mastectomy and radiation. By December 2009, Moore had exhausted all of her paid medical leave. She, therefore, applied for and received unpaid leave under the FMLA. Moore also received donated leave from co-workers at the Patuxent Institution, which allowed her to receive paid leave through June 29, 2010.
At some unspecified date, the Director of Patuxent Institution's Human Resources Department urged Moore to apply for medical disability retirement. Moore rejected the suggestion and informed the Human Resources Department that she intended to return to work upon the completion of her treatment. Thereafter, on August 4, 2010, Moore was placed on unpaid medical leave. Moore also claims that the HR Department prohibited other employees from donating additional leave to Moore.
On August 5, 2010, Moore received clearance from her doctor to return to work. She notified Patuxent Institution that day that she intended to return to work as early as August 13, 2010. On August 9, 2010, Moore was informed that she had been terminated effective August 4, 2010. Moore was told that she would have to reapply for a position through the Maryland Department of Corrections Central Hiring Office. Moore immediately reapplied for a position and was able to receive unemployment benefits in the meantime. In December 2010, Moore was offered a correctional officer position at a different correctional facility, also located in Jessup, Maryland.
Moore rejected that offer and instead filed the complaint with the EEOC alleging a violation of the ADA due to her alleged termination. On March 1, 2011, Moore sued her employer alleging violations under the ADA and Rehab Act seeking reinstatement to her position as a Correctional Officer II at Patuxent Institution, compensatory damages, attorneys' fees and costs. Moore's employer, thereafter, filed a motion to dismiss.
The Court's Decision
As an initial matter, Patuxent Institute argued that Moore's ADA claim was barred by the Eleventh Amendment Sovereign Immunity. Moore did not contest that claim and her ADA count was dismissed. However, Moore also sued under the Rehab Act. States are not generally immune under the Eleventh Amendment from suits alleging violation of §504 of the Rehab Act.
Under the Rehab Act, no otherwise qualified individual with a disability shall solely by reason of her disability be excluded from participation in, be denied the benefits of, or be subject to discrimination under any program or activity receiving federal financial assistance. Discrimination includes, “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or an employee unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business.”
To state a claim under the Rehab Act, the employee/applicant must show 1) she suffers a disability as defined by the statute, 2) with or without reasonable modifications she is otherwise qualified to participate in the benefit or employment in question, and, 3) she was excluded from that benefit or employment because of the disability suffered.
Patuxent Institute argued that Moore failed to state facts to show that she was “otherwise qualified” to carry out the job of a correctional officer, claiming that she could not perform the essential functions of the job and/or there was no reasonable accommodation at Patuxent Institute could make to able her to perform those functions.
According to Patuxent Institute, Moore could not perform the essential functions of her job because she was unable to be present at work and that an indefinite medical leave is, as a matter of law, an unreasonable accommodation.
The trial court disagreed, and found that although Moore was unable to perform the essential functions of her job during the period that she was on leave to receive medical treatment, the correct issue was whether Moore's request for additional medical leave to receive treatment for cancer was a “reasonable accommodation” under the Rehab Act.
Although the Fourth Circuit has held that a reasonable accommodation does not require an employer to grant an employee an indefinite leave of absence to receive medical treatment for a prolonged illness or disability, a temporary leave of absence, in some cases, can be a reasonable accommodation.
According to the court, whether Moore's eight-month absence from her job to receive cancer treatment was a reasonable accommodation under the Rehab Act or amounted to an “indefinite leave of absence” that imposed an undue hardship on her employer, was a factual issue that cannot be answered so early in the litigation.
According to Moore, although she was unable to work while she was receiving treatment, she requested a reasonable accommodation of additional medical leave that would have enabled her to return to her job. Indeed, Moore was cleared to return to work just one day after she was allegedly terminated by Patuxent Institute. As a result, the court denied the motion to dismiss.
Takeaway for Employers:
As clearly demonstrated in this decision, when an employee has exhausted all available FMLA and other available medical leave, the employer is not free to simply terminate the employee at that time. Under the Rehab Act, as well as the ADA, an employer must also consider whether there are any other reasonable accommodations that can be made to allow that employee to remain away from work for additional time.
Here, the facts were not particularly good for the employer. Moore had been away from work for over eight months and during that time the employer never complained about this prolonged absence. Then, for reasons that were not discussed in the court's decision, Moore was terminated one day before she was cleared to return to work. This case demonstrates the need for an employer faced with a similar scenario involving a long-term leave to remain attentive to the duration of the leave, and to promptly engage in the interactive process mandated by the ADA.