Testing Limits on Leave as an Accommodation
Posted: January 5, 2024
Administering leave in cases involving disability is one of the more challenging issues that human resource professionals face.
When employees go on leave without giving their employer a clue as to when they will be back, things become particularly difficult.
The good news: While the law generally obligates employers to grant leave as an accommodation, open-ended leave is not something they need to tolerate.
A recent case out of Missouri aptly demonstrates the point.
Problems right away
In 2017, at the age of 61, Colleen Johnson was hired to lead the oncology department at the Belton Regional Medical Center in Missouri.
Three months later, a new chief operating officer named Patrick Avila became her direct supervisor.
The two apparently did not get along well. Avila presented Johnson with a coaching document, after which Johnson went to human resources to say Avila was creating a toxic work environment by bullying employees.
Soon after that, Avila issued Johnson a disciplinary warning and a performance improvement plan. A final disciplinary warning followed just days later.
Within five days after the final warning was issued, Johnson requested short-term disability leave. The medical center approved the request, and someone else began doing her job.
While she was on leave, Johnson identified others who she said had voiced concerns about Avila.
Nine months was not enough
When Johnson's leave stretched to nine months, the employer's vice president of human resources asked Johnson when she might be able to return to work. Her response: Her medical providers had not yet released her to get back to work.
That answer was not good enough for the employer, and it terminated her employment the next day.
Johnson sued in state court, alleging hostile work environment based on age and disability. She added common law claims for emotional distress, defamation and conversion/destruction/trespass of personal property.
The case was removed to a federal court which ruled for the employer. Johnson appealed.
Appeals court: 'Johnson did not provide evidence'
The U.S. Court for the Eighth Circuit affirmed in Johnson v. Midwest Division. It rejected Johnson's argument that the case should have stayed in state court, finding that a state human rights act preempted her common law claims and that she had fraudulently added two in-state defendants to her case in an attempt to avoid removal.
The court then addressed the substance of Johnson's claims of hostile work environment.
As to age, Johnson said Avila asked her about her retirement plans and said she "was not getting any younger." She also said she overheard the chief nursing officer say that she wanted to "change the face of Belton by getting rid of some of the older employees."
This was not enough to show prohibited age discrimination, the court ruled, because it did not show age was the "determinative influence" on her termination. There was no evidence that she was terminated based on her age instead of because she refused to provide a date by which she could return to work, it said.
Accommodation does not mean indefinite leave
The court rejected the disability bias claim for the same reason: Essentially, it said she was let go because she did not say when she would return.
The law requires the provision of reasonable accommodation, it noted, but employers need not provide indefinite leaves of absence.
The lower court's ruling for the employer was affirmed.
While the federal Americans with Disabilities Act (ADA) and many corresponding state laws include the provision of leave as a form of reasonable accommodation, there are clear limits on that duty.
Leave as accommodation: five quick tips
Here are five quick tips to keep in mind when it comes to granting leave as a disability-related accommodation under the ADA.
- Employers need not provide any accommodation that would cause them to endure an undue hardship. The Equal Employment Opportunity Commission (EEOC) has made it clear that providing a leave of indefinite duration meets this definition and therefore is not required.
- Employers may need to provide leave as accommodation even if they do not otherwise offer leave as an employee benefit.
- If it does not impose an undue hardship, the ADA may require more leave than employees are entitled to receive under the Family and Medical Leave Act (FMLA). In other words, the fact that an employee has exhausted their FMLA leave does not automatically make them ineligible for further leave under the ADA.
- Employers need not provide paid leave beyond what they already provide as part of their paid leave policies. However, additional unpaid leave may need to be provided.
- Unless it causes an undue hardship, an employee's position must be held open while they are on leave.
Posted In: Americans with Disabilities Act (ADA); Equal Employment Opportunity Commission (EEOC); Family and Medical Leave Act (FMLA); Reasonable Accommodation
Want to know more? Read the full article by Tom D'Agostino at HR Morning