Over the years, lots of people have written about the intersection between Family and Medical Leave Act (FMLA), and the Americans with Disabilities Act (ADA), myself included. You simply cannot deal with the ADA and not be aware of the FMLA and vice-versa. Some of the things to be aware of is that the FMLA does not refer to disability at all, but to “serious health condition,” which has a very different meaning from the ADA and a meaning you may not expect if you are not familiar with the area. Also, for another, when it comes time to certifying whether a person is entitled to FMLA that certification does not factor in whether that person can do the essential functions of the job with or without reasonable accommodations, though it does factor in whether the person can do the essential functions of the job. Thus, for example, I have written in the past that you may have a situation where a person could go on FMLA leave but with reasonable accommodations could still stay on the job. It was my view that this would be the better approach because a person would rather work than take what would probably be unpaid leave. It also makes for a more loyal employee because it shows the employee that the employer is willing to do what it takes to keep a valued employee on board by reasonably accommodating that employee. That said, what happens if an employer does not give the employee a choice? That is, what if the employer does not give the employee any opportunity to be reasonably accommodated, but rather insists on the employee pursuing FMLA leave?

It turns out, that such an approach, which is not good preventive law, may also be evidence of bad faith on the part of the employer as well as evidence of retaliation. See Mills v. Temple University 869 F. Supp. 2d 609 (E.D. Pa. 2012). In this case, a secretary and a longtime employee was struck in the back by a coworker and flung forward. Id. at 614. She began experiencing severe pain within days of the incident and by the end of the following week reported the incident, a worker’s compensation incident report was completed and she was referred to a physician in Temple’s occupational health unit. Id. She received treatment by the physician in Temple’s occupational health unit, which included a medical topical cream for pain and he continued to see her continuously once a week until December 2008. Id. at 614. During that time, the plaintiff was released to return to work without imposing any restrictions on her. Id. That physician referred her to an orthopedist before releasing her from Worker’s Compensation medical care. Id. The orthopedist prescribed medication and physical therapy and she continued to receive treatment by various physicians. Id. at 614-615. Even so, she continued to experience pain in the back while working and had difficulty lifting and filing patient charts. Id. at 615. The plaintiff and the senior administrator for the cardiology department had discussions about this with the result of which student interns and permanent Temple staff took over filing for her towards the end of 2008, a fact which she shared with her direct supervisor as well. Id. While the plaintiff outside of work continued to engage in daily activities such as driving, caring for herself and her daughter, and shopping, she struggled with these activities as she found them quite exhausting. Id.

Now, is where it gets interesting. After being released from Worker’s Compensation medical care, she contacted the human resources department about how to pursue a Worker’s Compensation claim, which ultimately proved unsuccessful. Id. The senior administrator for the cardiology department suggested that she apply for FMLA leave to protect the absences. Id. The first request for FMLA leave was denied because the physician asked to do the certification declined to provide a diagnosis or complete the certification since that physician had only seen her once. Id. at 616. She then began seeing a pain management specialist who diagnosed Kyphosis, degenerative discs, and bulging discs in her back. Id. He treated the plaintiff for six months where she received bimonthly epidural injection for back pain. Id. She applied for intermittent FMLA leave in May 2009 and had the doctor she was seeing fill out the certification. Id. This leave was approved. Id. at 616-617. In June 2009, the student intern helping the plaintiff with filing left for the summer leading to the filing piling up. Id. at 617. When her direct supervisor circulated an email asking several members of the staff, including the plaintiff to assist with filing, the plaintiff responded the next day that she would not able to do filing since it would further injured her back and requesting whether further documentation about that was needed. Id. The direct supervisor said that she would need that documentation stating that she was unable to do filing work and the plaintiff asked whether the FMLA certification would suffice for the documentation. Id. The direct supervisor said no and asked for a doctor’s note instead, which the plaintiff promptly furnished. Id. Once the letter was received, the senior administrator for the cardiology department said that filing was an essential function of the job and that she had to do it. Id. After conferring with HR, they decided to send the plaintiff home and offer her continuous FMLA leave. Id. Neither person consulted a doctor or Temple’s Office of Labor and Employment before sending the plaintiff home. Id. The senior administrator for the cardiology department later that day sent an e-mail. saying that the letter had been received, she was eligible for FMLA leave, and could return only if the doctor authorized she could return to work fully and unrestricted. Id. The plaintiff called the senior administrator to discuss the matter and the call was not returned. Id. She then left the next day for vacation. Id. When she came back from vacation she called her direct supervisor discussing how to proceed and was referred to human resources whereby they told her that she could not return to work and was provided with an application for continuous FMLA leave. Id. at 617-618. Plaintiff then objected to taking unpaid leave for an injury that occurred on the job and did not understand why she had to complete another certification since one had already been already approved. Id. at 618. She never completed the application and neither did she comply with Temple’s procedure for absences, which eventually led to her being terminated from her employment for being absent without leave. Id.

Fortunately, while she would never able to find other employment since being terminated and she lost her health insurance following her dismissal, the condition did improve so that she could treat it with Motrin or a prescription muscle relaxer and experienced minimal pain. Id. She filed suit against Temple alleging discrimination and retaliation as well as interference under the FMLA and due process violations. Id.

In denying Temple’s motion for summary judgment on the discrimination, retaliation, and FMLA claims (the plaintiff did not object to summary judgment being awarded to the defendant with respect to the due process violation), the court reasoned as follows. First, Temple argued that the plaintiff was not substantially limited in a major life activity because she experienced minimal pain that was being managed with pain medication and Motrin. Id. at 620-621. The court didn’t buy the argument for three reasons. First, it referred to the ADAAA which says that whether plaintiff is substantially limited is a less searching analysis and a question of fact. Id. It is interesting to note, that “less searching analysis,” really means that, as the court never even cited to the EEOC definition of substantial limitation under the ADAAA. Second, whether a person is substantially limited is made from the point in time at which the alleged discriminatory action occurred and not from the point in time of the decision on the case. Id. at 621. Finally, the court said that ample evidence existed to indicate that the plaintiff was substantially limited in her ability to lift. Id. at 622.

The plaintiff also argued that she was substantially limited in her ability to work as well. Id. at n. 8. The court’s response to this is very interesting. Over the years, I have seen some courts focus on working as the end-all and be-all of what is a substantial major life activity. Of course, defense attorneys would prefer it that way as well, since it is very hard to show, pre-ADAAA as well as post ADAAA, that a person is substantially limited in the major life activity of working. What is interesting here, is that the court adopts the EEOC guidelines with respect to working by saying that if you can find a person substantially limited in any other major life activity, working as the major life activity never comes up. Id.

With respect to offering FMLA leave but never offering a reasonable accommodation option, the court held that this was not good faith. Id. at 624. Further, Temple did not meet with the plaintiff regarding receipt of the letter nor did they inquire from the plaintiff about what her limitations were or ask what accommodation she desired. Id. at 625. Instead, they immediately rejected the idea, after a short conversation between themselves, of hiring a student intern to help with filing despite the fact that an intern had been doing that for over six months. Id. In short, this case puts an employer on notice that offering FMLA leave without exploring the accommodation process, especially if there are additional factors, is not a good faith response (whether the employer acts in good faith is important, as good faith is a defense to damages).

Last and certainly but not least, the court held that ignoring a request for reasonable accommodation and offering FMLA leave instead, could reasonably dissuade a person from requesting an accommodation because nobody would like to be sent home from work without pay. Id. at 627. In short, taking such an approach opens up the employer to a retaliation claim. Id. at 626-628.

Putting it together: this case has a lot of very helpful tidbits in it. First, employers should realize that post ADAAA, showing a substantial limitation on a major life activity is not going to be anywhere near as easy as it used to be. Second, plaintiff’s attorneys and plaintiffs should take to heart that alleging working as the major life activity should only be done as a matter of last resort. Third, offering FMLA leave without offering a reasonable accommodation process is both not a good faith response, especially if other factors are present as well, but also possibly evidence of retaliation. In short, the preventive law approach, discussed above, of offering the accommodation as an option to FMLA leave is not only good preventive law but now can prevent liability as well. Fourth, as if Temple did not have enough problems, they insisted on a full return to work. As discussed previously in a prior blog entry, such a demand post ADAAA is extremely problematic. Finally, it is curious as to how the termination happened without consulting counsel. An excellent preventive approach is to adopt a policy that nobody is terminated except for cause and all such termination decisions are reviewed by counsel first. If my experience is any indication, such a policy significantly decreases outside legal fees.

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