The best weekend in sports is no doubt the first and second round of the NCAA basketball tournament. I hope your bracket survived. The UMBC VA game was amazing (even my 14-year-old daughter was into it), and there were plenty of other upsets along the way as well. I am in two pools (brother and brother-in-law), and Cincinnati’s loss did not help me. However, I do have Villanova and Gonzaga in the final game, and so I am okay that way (I have Gonzaga winning in one pool and Villanova winning in the other). Good luck to everyone with their brackets.
As everyone knows, I am not afraid to blog on cases blogged on by others. Today’s case is a first because I don’t think I have ever blogged on a case mentioned here by Eric Meyer of Fisher Broyles in his Employer Handbook blog, an ABA Hall of Fame blog that can be found in my blogroll. So, today is a first. My thanks to Eric for alerting me to the case. The case, Lindstrom v. Bingham County, Idaho, out of the Idaho District Court decided on March 15, 2018, is a combination of FMLA and ADA . As usual, the blog entry is divided into categories and they are: facts; court’s reasoning in denying summary judgment on the FMLA claim; court’s reasoning in denying summary judgment on the ADA and the equivalent Idaho Human Rights Act claim; and takeaways. Of course, the reader is free to focus on any or all of the categories.
Plaintiff was employed at the Rattlesnake Landfill located outside of Shelley, Idaho as the landfill manager from July 26, 2004, until March 10, 2015. It was a full-time position, and his duties generally included operating the scale house when customers arrived, operating heavy machinery throughout the landfill, and supervising other employees. On September 16, 2014, plaintiff was taken to the hospital because he was ill. Subsequent visit with doctors revealed multiple health issues including blurry vision and low blood sugar. As a result, one doctor told the plaintiff to refrain from operating heavy equipment for a time, and another doctor suggested taking time off work to address the health concerns.
On September 30, 2014, plaintiff signed a request for FMLA leave. That form noted that plaintiff’s FMLA leave started September 24, 2014 and would last for 12 weeks until December 16, 2014. During that time, plaintiff took medications and was able to improve his vision and level out his blood sugar. However, the condition with his feet, which was caused by diabetes, did not get better or worse.
During November and December 2014, plaintiff kept in contact with the County’s Human Resources Director and discussed various work option for him upon his return. Plaintiff indicated that he wanted to try to do some work at Rattlesnake to see how it went. However, that never took place. Plaintiff’s intent was to work mainly in the scale house, which he had done previously when his feet were causing him pain.
Plaintiff did not have a doctor’s note immediately available upon completion of his FMLA leave and did not show up for work on December 17, 2014. Even so, the County continued his time off as a paid leave of absence. On December 31, 2014, plaintiff received a note from a doctor and provided it to the County on January 2, 2015. The County asked the plaintiff to work with medical providers to determine the details of any work limitations and to fill out a fitness for duty form.
Plaintiff complied with that and furnished two fitness for duty forms. With some variations, both doctors recommended that plaintiff not stand or walk for long periods because of the condition with his feet along with other minor restrictions and suggestions.
As a result of the fitness for duty forms, the County determined that Rattlesnake was not a good fit for the plaintiff and instead offered him a position at the central transfer station located in Blackfoot, Idaho. The County gave him few details about that job, but did say that he would have a stool to sit on. While plaintiff initially agreed to attempt that position, when the day for him arrived to start that job, he left a message with the supervisor indicating that he would not be able to make it for medical reasons. He later indicated that he wasn’t comfortable driving the significantly greater distance to that job as opposed to his usual 3-4 mile commute to Rattlesnake. After meeting with his doctors, the doctors about the plaintiff that driving longer distances and a slower paced job close to home, essentially Rattlesnake, would be best for the plaintiff.
On March 5, 2015, the Board of Bingham County’s Commissioners passed a resolution reducing the hours of operation at Rattlesnake for financial reasons. They then implemented a reduction in force and terminated the plaintiff and another part-time employee. After exhausting administrative remedies, plaintiff brought suit and the County eventually moved for summary judgment.
Court’s Reasoning in Denying Summary Judgment on the FMLA Claim
- Under the FMLA, if an employee can’t perform the essential functions of the position because of a physical or mental condition, he is not entitled to restoration of a job upon return. However, he may have rights under the ADA.
- What were the essential duties of the job, how those essential duties were defined, and how fieldwork was allocated at Rattlesnake were all facts in hot dispute. Further, the County could not point anything in the record actually showing that plaintiff could not perform the duties as outlined.
- In the past, plaintiff had worked internally with his coworkers to switch duties when he was having a difficult time, and the County provided no explanation as to why that type of scenario could not have continued upon his return.
- No legal authority exists for the proposition that a person on FMLA leave must return to work at the specific time the FMLA leave ends or risk losing his right to reinstatement. In fact, FMLA regulations say that the timing is not so rigid. In particular, 29 C.F.R. §825.216 provides an employer can delay restoration to an employee who fails to provide a fitness for duty certificate to return to work. Importantly, that provision does not say the employer can fire an employee or that the employee’s right to reinstatement lapses or ends. Rather, it says that the employer can delay reinstatement. That is exactly what happened in this case. That is: plaintiff did not provide the form upon completion of the leave; the County requested it; plaintiff produced it; and then the parties work towards a solution. Further, 29 C.F.R. §825.312 says an employer may not terminate the employment of the employee while awaiting a certification of fitness to return to duty.
- While an employee cannot wait around and return to work at his or her convenience, there is nothing indicating that the day after leave expires is the sole date upon which a person can return without forfeiting his or her rights, especially in this case where the County admittedly chose to work with the plaintiff regarding his return and even extended it with paid time off.
- Nothing in the C.F.R. puts a timeframe on the required fitness for duty form.
- While it is logical to assume that in order to avoid any downtime the employee should provide the form immediately after the 12 weeks, the regulations are silent with respect to timing.
- Since federal regulations allow for delay for an employee to get paperwork, that suggest that there is not a strict timing requirement. Further, this case did not involve extreme behavior where the plaintiff put off returning to work: his leave ended on December 16, 2014; he got a note from a doctor on December 31, 2014; and submitted the same to the County on January 2, 2015. The County then asked for the official fitness for duty forms and the plaintiff provided two of those.
- No indication exists that the County told the plaintiff he had to submit the form prior to December 16, nor was there any indication that plaintiff was not diligent in getting the requested forms to the County.
Court’s Reasoning and Denying Summary Judgment on the ADA and the Equivalent Idaho Human Rights Act Claims
- Once an employer becomes aware of the need for accommodation, the employer has a mandatory obligation to engage in an interactive process with the employee in order to identify and implement appropriate reasonable accommodations.
- What is a reasonable accommodation is typically a jury question.
- Just what were the essential duties of plaintiff’s job were not clear-cut.
- There are several questions of fact in dispute that are critical to the case, including: whether plaintiff could do the work; what were the essential functions of the job; and why plaintiff could not trade the functions of the job off with other employees as he had done prior to his FMLA leave.
- Whoever breaks down the interactive process bears the liability. In this case, who was responsible for that breakdown of the interactive process is in hot dispute. In particular, both sides interacted with each other but neither side liked the other side’s suggested options. So, whether those communications and ideas were adequate under the ADA is a question the trier of fact must determine, i.e. a jury question.
- When trying to determine whether a person is a qualified individual under the ADA, it is absolutely critical to remember that the question is whether the individual can perform the essential functions of the job with or without reasonable accommodations. As mentioned in the above paragraphs, whether plaintiff could perform the essential functions of his job with or without reasonable accommodations is in hot dispute and material to the dispute as well.
- With respect to causation, the County’s Human Resources Manager admitted that the plaintiff’s disability played a role in the decision to reduce plaintiff’s hours at Rattlesnake. Accordingly, if the reduction in plaintiff’s hours was the moving factor behind the reduction in force resulting in his losing employment, it is reasonable to infer that plaintiff’s health issues were a consideration in his termination. Since there appears to have been multiple factors with respect to the reduction in force, it all should be presented to the jury for resolution.
- Nothing in the FMLA requires that the process of going on FMLA leave and the certification process of coming back from FMLA leave factor in reasonable accommodations. However, since the FMLA applies to employers with 50 or more employees and title I of the ADA applies to employers of 15 or more employees, an employer would have to be out of their mind not to factor in the with or without reasonable accommodation part when it comes to the FMLA certification process. On the plaintiff’s side, the distinction is important for pleading purposes. A defendant would be perfectly justified in getting an FMLA claim dismissed if that claim focused on the reasonable accommodation piece, but that would not be the case if that claim was phrased as an ADA claim.
- Make sure your essential duties of the job are current, accurate, and reflect what is actually happening on the ground.
- If a reasonable accommodation is working, why mess with it?
- Employers want to review their policies and figure out the timing for when paperwork must be in with respect to returning from FMLA leave. You do want to build a least a little bit of flexibility into the process.
- What is a reasonable accommodation is typically a question for the jury.
- As we have discussed before, whoever breaks down the interactive process bears the liability.
- Figuring out who broke down the interactive process is a question for the jury, at least in close calls.
- Whether a person is a qualified individual with a disability under the ADA depends upon whether that person can do the essential functions of the job with or without reasonable accommodations. Don’t forget about the, “with or without reasonable accommodation piece.”
- Whether a job can be performed with or without reasonable accommodations is a question of fact.
- Interesting, that the court talks about the plaintiff’s health issues undoubtedly being a consideration in the termination. The court doesn’t address the issue of whether causation is sole cause analysis or causation is a motivating factor analysis. See this blog entry.
- Not addressed in this case, but discussed here, is the important question of whether extending leave beyond FMLA leave is a reasonable accommodation under the ADA.
- For another FMLA ADA interaction problem, check out this blog entry, which discusses forcing FMLA leave instead of engaging in the interactive process.
- Don’t forget about reassignment as a reasonable accommodation.