Today’s blog entry deals with a very common scenario. It works this way. Person goes on FMLA leave. FMLA leave is for 12 weeks. Employers can require employees to exhaust sick and vacation time as part of that leave. After that, the employee is on unpaid leave. When the leave is over the employee gets his or her job back or an equivalent job if at all possible. A company can insist on a certification process with respect to taking the leave and coming back from the leave. With respect to coming back from the leave, the certification process would include assessing whether the employee can perform the essential functions of the job. Very importantly, that assessment does not include whether they can perform the essential functions of the job with or without reasonable accommodations. Accordingly, what you see quite a bit of is the employee asking for leave pursuant to the ADA after the FMLA leave has expired. Since the ADA amendments has broadened just who is covered by the ADA, many people can justifiably claim they have a disability and ask for the reasonable accommodation of additional leave beyond the FMLA leave. All this said, that doesn’t answer the question as to what is a reasonable amount of leave. The majority rule is that if the employee can give the employer a definite time when they will come back and be able to do the essential functions of the job with or without reasonable accommodations, then the additional leave is in order. In the Seventh Circuit, as we discussed here, just about any additional leave is not reasonable. Now, the Ninth Circuit, in a case Eric Meyer alerted me to because I subscribe to his blog, has come up with a different approach. The case is Kachur v. NAV-LVH, an unpublished decision decided by the Ninth Circuit on June 8, 2020. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning; and thoughts/takeaways. Since this is such a short blog entry for me, I am figuring that the reader is going to want to read the whole thing. If the reader does not want to read the whole thing, I definitely recommend reading the thoughts/takeaways section.

 

I

Facts

Plaintiff underwent knee surgery and kept the defendant abreast of his recovery progress on a monthly basis after he exhausted his FMLA leave. At the time of termination, plaintiff had requested an additional four weeks of leave on top of the 16 weeks previously granted. Plaintiff estimated treatment schedule involved monthly appointment for 3 to 4 visits. Plaintiff’s physician also provided deposition testimony regarding the indeterminacy of the healing process following the surgery.

 

II

Court’s Reasoning

 

  1. The ADA does not require an employee to show that a leave of absence is certain or even likely to be successful to prove that it is a reasonable accommodation. Rather, an employee only needs to satisfy the minimal requirement that a leave of absence could plausibly enable him to adequately perform his job.
  2. The Ninth Circuit has never recognized an accommodation that fails to provide a date certain for returning to work is per se unreasonable.
  3. Viewing the evidence in the light most favorable to the plaintiff, there appears to be a genuine dispute of material fact regarding whether his request for an extension of his unpaid leave was a reasonable accommodation.
  4. The updates plaintiff provided to his employer as to his recovery progress can easily be understood as estimates of when he could be expected to return to work. Further, the request of an additional four weeks of leave seems facially reasonable.
  5. On remand, the district court has to consider first whether plaintiff’s additional leave request would pose an undue hardship on his employer.
  6. In a footnote, the court noted that it had stated previously that recovery time of unspecified duration may not be a reasonable accommodation (primarily where the employee will not be able to return to his former position and cannot state when and under what conditions he could return to work at all). However, that statement is not a declaration that recovery time of unspecified duration is not a reasonable accommodation.

 

III

Thoughts/Takeaways

 

  1. We most definitely have a Circuit Court split now. So, it is only a matter of time before the United States Supreme Court takes this up. The Circuit Court split essentially involves three possibilities: 1) the Seventh Circuit view, which we discussed here, that any leave beyond the FMLA leave is just about always unreasonable; 2) the Ninth Circuit view that it always comes down to undue hardship, whether it be logistical undue hardship (i.e. fundamental alteration), or financial undue hardship; 3) the view of many courts that a date certain must be given by the employee, and then it comes down to whether a logistical undue hardship or a financial undue hardship exist. Predicting what the United States Supreme Court will do in this situation is a complete guess. Generally speaking, people with disabilities have not fared well at the Supreme Court in employment matters. However, the Seventh Circuit view seems a bit extreme. On the other hand, the Ninth Circuit view presents a problem for businesses because it leaves them with a lot of uncertainty with respect to staffing their businesses. The middle ground, which is a date certain balanced against undue hardship seems to me to make the most sense.
  2. You have to drill down into the facts a bit in terms of the phrasing used by the court to realize that the plaintiff in this case took 12 weeks of FMLA leave and then the employer granted an additional four weeks on top of that, presumably as a reasonable accommodation under the ADA. At the time of termination, plaintiff had requested an additional four weeks of leave, but it was not a hard return date.
  3. In checking the docket for this case, it is now back in the District Court and the employer has filed a summary judgment motion.
  4. So, what is an employer to do? First, check your jurisdiction. As mentioned above, there are three possibilities as to how jurisdictions might handle this question.
  5. If on the employer side, it helps if you can show that the extended absence presents a logistical undue hardship for the business. In some situations, it may present a financial undue hardship, though that will probably be harder to show.
  6. Even in a jurisdiction where an uncertain date of return is allowable, an employer still has the ability to show that the uncertain date of return presents an undue hardship.
  7. This isn’t really something that Congress would likely get involved in fixing. So, this will eventually head to the Supreme Court for resolution. When it does, the Supreme Court will be faced with three possible choices. Uncertain date of return and almost any leave beyond FMLA not being reasonable are extreme positions. The Supreme Court often likes to look for a sensible middle ground. As I mentioned previously, absolutely anybody’s guess as to what the Supreme Court will decide. So, look for cases to take on any of the three categories before the Supreme Court gets to it. My guess is that most cases will come down on the majority rule and some will come down on the Ninth Circuit approach. Hard to believe the Seventh Circuit approach will be that persuasive, but you never know.
  8. Underlying all of this is whether attendance is an essential function of the job. For determining that question, my go to is this blog entry. That said, Covid-19 and a tremendous amount of people moving to remote work has definitely changed the calculus as to whether attendance is always or just about always an essential function of the job.

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