Once an employee requests an accommodation, their employer has a duty to engage in an “interactive process” to try to determine whether they can accommodate the disability. With that in mind, employers should take note of this recent decision from the U.S. 6th Circuit Court of Appeals (which covers Tennessee, Ohio, Kentucky, and Michigan). The court ruled that this duty includes fully considering a request for accommodation in the form of medical leave prior to terminating an employee with a disability.
Facts
Jeanne King, a registered nurse who worked at Steward Trumbull Memorial Hospital from approximately 2007 until her termination in June 2017, was described as “a competently skilled emergency nurse” by her supervisor. She was diagnosed with asthma as a young adult, but her symptoms began worsening around 2013 and 2014. During severe flare-ups, she would call in sick and inform the hospital of why she couldn’t work that day. She spoke directly with her supervisor several times and specifically noted she needed to miss work because of her asthma, which she described as “disabling.”
The hospital allowed employees to seek a medical leave of absence to handle personal illnesses and disabilities under the Family and Medical Leave Act (FMLA) or under a collective bargaining agreement (non-FMLA leave). It used a third-party administrator (TPA) to manage both FMLA and non-FMLA leave requests. If an employee didn’t qualify under the FMLA, the TPA would consider whether they qualified for non-FMLA leave. Under the hospital’s attendance policy, it could discipline employees for “excessive absenteeism” after three “different occasions” in a year.
After King’s asthma worsened in 2013 and 2014, she was absent on several occasions due to asthma flare-ups, some of which were covered by either FMLA or non-FMLA leave. Over the course of several years, her supervisor gave her several written and verbal warnings for attendance issues. Occasionally, however, he withdrew the disciplinary actions after the hospital excused her absences under its medical leave policy.
In April 2017, she experienced a particularly severe asthma flare-up, which resulted in her calling in sick for 14 shifts over the course of five weeks. During that period, she regularly saw her physician and worked with him to find new medications and treatments for her asthma. Her doctor informed her that she wasn’t able to return to work until they developed a better treatment. Initially, she didn’t request medical leave from the TPA because she thought her symptoms were going to improve.
When King’s condition worsened, she requested leave due to her asthma but didn’t specify how much time off she needed. The TPA informed her that she was ineligible to apply for leave because she hadn’t worked the requisite hours and advised her to contact the hospital’s HR department.
Believing the TPA had miscalculated her hours, King told the hospital’s HR department she was trying to apply for leave, but that the TPA wasn’t letting her do so because of her low hours. HR indicated that the TPA didn’t have an accurate count of her hours because the hospital had recently changed management, and they would need to manually update her hours. She then notified her supervisor that she was trying to apply for medical leave. Her supervisor advised that he would also investigate her application and get back to her.
While King’s request for leave was still pending, the hospital terminated her employment on June 2 for “failure to apply for timely leave of absence.” At the time of her termination, she hadn’t heard back from HR about manually updating her hours. Shortly after her termination, she learned the TPA had finally updated her hours, but she was still ineligible for FMLA leave. The TPA, however, did retroactively approve certain periods of non-FMLA leave. Nevertheless, the hospital’s decision to terminate her remained unchanged.
King filed a lawsuit against the hospital alleging, among other things, that it failed to afford her reasonable accommodation for her disability (asthma) under Ohio state law, which is analyzed in the same manner as claims under the Americans with Disabilities Act (ADA). Following the trial court’s granting of summary judgment (dismissal without a trial) in favor of the hospital, she appealed to the 6th Circuit, claiming the trial court got it wrong, and that her failure-to-accommodate claim should be considered by a jury.
6th Circuit’s Findings
To succeed on her failure-to-accommodate claim, King needed to show that “(1) she was disabled within the meaning of the [ADA]; (2) she was otherwise qualified for her position, with or without reasonable accommodation; (3) the [hospital] knew or had reason to know about her disability; (4) she requested an accommodation; and (5) the [hospital] failed to provide the necessary accommodation.”
The parties agreed that King’s asthma was a disability. The hospital, however, argued that her asthma-related issues, which resulted in extended absences, made her unqualified for her job because “an essential element of her job as a nurse . . . required regular, in-person attendance.” The 6th Circuit disagreed and concluded that leave as a reasonable accommodation is consistent with the statutory purpose of the ADA “because it enables the employee to return to work following the period of leave requested as an accommodation—i.e., it enables the employee to perform the essential function of attendance.”
In determining whether a leave request is reasonable, the following factors should be considered: “(1) the amount of leave sought; (2) whether the requested leave generally complies with the employer’s leave policies; and (3) the nature of the employee’s prognosis, treatment, and likelihood of recovery.” To this end, the 6th Circuit concluded that non-FMLA leave would have been a reasonable accommodation for King’s asthma flare-ups considering that she didn’t seek an unreasonable amount of leave according to the hospital’s own policies. The 6th Circuit also noted the hospital ultimately determined that she qualified for non-FMLA leave between May 14 and June 1 (the day before she was terminated).
The 6th Circuit found that a jury could conclude the hospital, which was aware King was missing work due to her asthma, knew her condition was so severe that it rose to the level of a disability. It also found that King, who made several calls to her supervisor and the TPA, requested an accommodation. In addition, the hospital prematurely halted the “interactive process” while her leave request was still outstanding. By retroactively approving her request for non-FMLA leave after terminating her, the hospital denied her the reasonable accommodation she requested. Finally, it found that the hospital wouldn’t have suffered undue hardship by granting her retroactive medical leave.
Based on the foregoing, the 6th Circuit reversed the trial court’s granting of summary judgment in favor of the hospital and reinstated King’s failure-to-accommodate claim. King v. Steward Trumbull Memorial Hospital, No. 21-3445 (6th Circuit).
Takeaway
Employers must always remember that a request for leave may be considered a request for accommodation under the ADA and/or analogous state laws, and that, in some instances, you may be required to provide leave under those laws. This applies even if you wouldn’t be required to do so under the FMLA or your other leave policies.
For instance, an employee who must miss work due to a serious health condition, but who isn’t eligible for FMLA due to insufficient hours or tenure, may be entitled to leave as form of accommodation under applicable disability laws. At the very least, an employee’s request for leave triggers your duty to engage in an “interactive process” to determine whether you can reasonably accommodate the disability.
Larger employers with generally sound leave policies also should bear in mind that your generous benefits programs and good-faith efforts to abide by the law won’t necessarily protect you in the case of an inadvertent communication failure or “glitch in the system,” nor will you be protected from liability based on use of a third-party vendor to administer employee leave requests.
In the end, you are always responsible for compliance. Accordingly, you should make sure that multiple checks have been conducted, and that all interactive process steps have been fully documented prior to pulling the trigger on any termination involving an employee with a chronic health issue. And when in doubt, it’s always best to check with an experienced employment attorney.
Kara E. Shea is an attorney with Butler Snow LLP in the firm’s Nashville, Tennessee, office. You can reach her at kara.shea@butlersnow.com. J. Lott Warren is an attorney in the firm’s Jackson, Mississippi, office. You can reach him at lott.warren@butlersnow.com.