In a recent case, an employee suffered a stroke at work. Even after a 14-month leave of absence, her doctors could not state with certainty when she would be able to return to work. In that situation, it was clear her employer did not discriminate against her based on her disability when it terminated her employment.
Sales Associate Suffers Stroke at Work
“Kim” worked as a sales associate in the women’s clothing department at Macy’s. Her job duties included assisting customers with purchases, conducting sales transactions at the cash register, processing returns, and conducting inventory. Her duties required her to walk and remain on her feet for extended periods.
On June 26, 2011, Kim suffered a stroke while assisting a customer. The stroke rendered the left side of her body completely paralyzed, and she was hospitalized for 3-½ weeks. Several days after the stroke, her daughter faxed a doctor’s note to Macy’s stating she would miss work for 3 to 6 months. On July 19, Kim filled out a Family and Medical Leave Act (FMLA) leave request, with an estimated return-to-work date of December 24. Macy’s approved the leave request.
On December 16, 2011, Kim asked Macy’s to extend her leave of absence for an additional 6 months. The accompanying doctor’s note, however, stated the physician was unable to provide a return date because the leave was “indefinite.” On December 28, Macy’s sent Kim a letter approving the additional leave with the expectation that she would return to work on June 16, 2012. The letter further stated that if she were unable to return by that date, Macy’s might not be able to grant her additional leave.
When Kim didn’t return to work on June 16, Macy’s sent her a letter requesting additional information from her physician and a new anticipated return date. If the company did not receive that information, it would terminate her employment.
On July 13, Kim’s workers’ compensation attorney sent Macy’s a letter describing her treatment from three different doctors and stating that she would be “temporarily totally disabled” until August 30. On August 15, Macy’s sent Kim a letter stating that the information it had received to that point didn’t explain how granting additional leave would allow her to return to work in the foreseeable future.
The letter concluded that her leave was “indefinite” and informed her that Macy’s would process her termination on August 27. The letter stated that if she had any questions, she should contact the HR department. Kim didn’t respond, and she was terminated.
Employers Aren’t Obligated to Provide Indefinite Leave
Kim sued, asserting claims for disability discrimination, failure to accommodate, and failure to engage in the interactive process. She claimed that she would have been ready, willing, and able to work at the expiration of her leave and that Macy’s failed to provide an extension of her leave or offer any change in her job duties. Further, she claimed Macy’s failed to engage in an interactive process to determine whether other accommodations would have allowed her to return to work.
The court ruled that the evidence showed that even after being granted 14 months of leave, Kim couldn’t establish that she would have been able to return to work by a definite date. After Macy’s sent her the letter stating that the information from her physicians did not explain how additional leave would allow her to return to work in the foreseeable future, she provided no more information. The court stated that California law is clear that an employer is not obligated to provide an employee an indefinite leave of absence.
The court concluded that Kim’s attorney’s July 2012 letter stating that she would be temporarily totally disabled until August 30, 2012, was insufficient to establish that she would have been able to return to work on that date.
Kim’s failure to accommodate claim failed for the same reason: She couldn’t establish that an additional finite leave of absence would have allowed her to return to work and perform the essential functions of her job.
On her claim that Macy’s failed to engage in the interactive process, the court concluded that she did not adequately address the issue in her appeal. Therefore, she could not show that the trial court erred in dismissing the claim. Khachatourian v. Macy’s (California Court of Appeal, 2nd Appellate District, 3/15/17, unpublished).
Bottom Line
This case reiterates the principle that employers are not required to provide employees an indefinite leave of absence. Be cautious, however, in applying rigid rules regarding how long you allow employees to be on leave. Many employers have rules providing that employees will be terminated if they cannot return to work within a specific time frame (one year is common).
After a year of leave, if an employee provides sufficient information to show that she can return to work within a short time, it may be very difficult for the employer to establish that granting a short extension would be an undue hardship.
Matthew A. Goodin, a contributor to the California Employment Law Letter, can be reached at Epstein, Becker & Green, P.C., in San Francisco, mgoodin@ebglaw.com.