I have quite a stack of cases in my pipeline to blog on. When I went digging through them, I came across a decision from April 7 of 2022 (that isn’t a misprint). The case is King v. Stuart Trumbull Memorial Hospital, Inc., a published decision from the Sixth Circuit, here, and it has all kinds of interesting tidbits in it that I thought I would pass along. As usual, blog entry is divided into categories and they are: facts; King was a qualified employee; hospital knew or should have known of plaintiff’s disability; plaintiff adequately requested an accommodation; hospital failed to carry out its interactive process obligation; undo hardship has not been shown; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.
King, a registered nurse who started working for the hospital in 2002, was diagnosed with asthma as a young adult, which worsened around 2013 and 2014. The asthma was often triggered by stress and seasonal allergies causing intermittent flareups and severe asthma attacks. At times, the flareups left King unable to perform her work duties. Her co-workers occasionally helped her by giving her more stationary tasks. During particularly bad flareups, King could not complete daily tasks like cooking and doing dishes. On those days, King would call in sick and tell the hospital why she could not work that day.
To call in sick, King usually called the central staffing office and spoke to the house supervisor who was not always her immediate supervisor. However, King did call her immediate supervisor directly several times saying that she needed time off because of her asthma. In particular, she would tell him that she literally could not breathe and could hardly talk and that she could not get off the couch without being out of breath and wheezing. Her supervisor admitted that he was aware of King’s asthma and that it was common knowledge among the hospital staff. He also knew that King was off work sometimes because of her asthma. Finally, King allegedly told her immediate supervisor that her asthma was so debilitating that it was disabling.
The hospital allows employees to seek medical leave of absence to handle personal illnesses and disabilities through two separate channels. One channel is the FMLA. The other channel is the collective bargaining agreement that allowed employees to seek unpaid medical leave even if they were not eligible for FMLA leave. The collective bargaining agreement allows up to one year of non-FMLA leave. In order to apply for the collective bargaining leave an employee has to submit a written request and medical documentation from their physician either two weeks before the start of the leave or as soon as circumstances allow.
The hospital uses a third-party administrator called FMLASource to handle both FMLA and non-FMLA leave requests. King had experience dealing with the third-party administrator as she received both FMLA and non-FMLA leave on several occasions in 2015 and 2016. The hospital has an attendance policy and allows for discipline of employees for excessive absenteeism after three different occasions in a year.
Over the years, her immediate supervisor gave King several written and verbal warning for attendance issues but those warnings were occasionally withdrawn because the absences were approved under a medical leave policy.
On April 28, 2017, King reported for her 12 hour shift but did not complete the shift because about eight hours into the workday, she had an asthma attack leaving her unable to breathe. Over the next five weeks, King continued to suffer from severe asthma related symptoms. At the peak of that flareup, her symptoms landed her in the emergency room of the hospital seeking treatment. King could not work throughout this time and called in sick for her next 14 shifts. Throughout, she followed hospital protocols and either called her immediate supervisor or the house supervisor at least two hours before her shift and reported that she could not work because of the asthma flareup. Even though King missed 14 days of work, her immediate supervisor did not remember having to cover any of her shifts nor did he recall her absence causing any problems.
At some point between April 28 and May 15, 2017, her physician said that she was not able to return to work until a better treatment plan was developed. She then notified FMLASource consistent with hospital policies of the need for more leave. FMLASource said that she did not have any hours of FMLA leave left and did not even consider the collective bargaining agreement leave. She also informed her immediate supervisor of the problem with the leave and what she believed was FMLASource erroneous calculation.
While King was trying to sort out her leave hours, the hospital terminated her employment. On June 5, three days after her termination, King reached out to FMLASource again to see if they had updated their hours and apply for leave. Upon further investigation, she did not have FMLA leave but she did have leave available under the collective bargaining agreement. FMLASource retroactively approved part of King’s leave request. Despite retroactively approving periods of non-FMLA leave, nothing about that decision affected her termination on June 2.
King Was a Qualified Employee
- A qualified person with a disability is one who can safely and substantially perform the essential functions of the job with or without reasonable accommodations.
- A job function is essential if removing the function fundamentally alters the job.
- Reasonable accommodations include any reasonable adjustment made to a job and/or the work environment and can include job restructuring and modified and part-time work schedules.
- While attendance is an essential function of many jobs, medical leave is a reasonable accommodation to enable that person to meet attendance requirements at a definite later point in time.
- Plain language of the ADA defines a qualified individual is an individual who with or without reasonable accommodation can perform the essential functions of the job. The purpose of the ADA’s reasonable accommodation requirement is to require employers to change the way things are customarily done to enable employees with disabilities to work.
- Leave as a reasonable accommodation is consistent with that that the ADA’s purpose because it enables the employee to return to work following the period of leave requested as an accommodation. That is, medical leave enables the employee to perform the essential function of attendance at a later time.
- While regularly attending work on site is essential to most jobs, that doesn’t automatically apply where medical leave enables the employee to return to work and perform the essential job duties. Approved medical leave may be a reasonable accommodation and the inability to work while on such leave does not mean that the individual is automatically unqualified.
- In figuring out whether medical leave is reasonable, a court considers: 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.
- There is no bright line rule with respect to defining a maximum duration of leave that can constitute a reasonable accommodation, though requests for indefinite leave are likely unreasonable. According to the hospital’s own policies, King only requested five weeks of leave, which was not an unreasonable amount of leave according to the policies.
- Retroactively granting emergency leave can be a reasonable accommodation.
- FMLASource own errors caused some of King’s failure to give advanced notice. The third-party administrator miscalculated her hours and violated its own policies by refusing to consider her eligibility for both FMLA and non-FMLA leave when she first sought leave. King cannot be faulted for the lengthy application process when the hospital, through its agent, caused the delays.
- By granting King’s leave request, even if only partially, the hospital admitted that retroactive non-FMLA leave was a reasonable accommodation.
Defendant Knew or Should Have Known of Plaintiff’s Disability
- An employer has notice of the employee’s disability when the employee tells the employer that she is disabled.
- An employee need not use the word “disabled,” but the employer must know enough information about the employee’s condition to conclude that she is disabled. Relevant information could include, among other things, a diagnosis, treatment plan, apparent severe symptoms, and physician imposed work restrictions.
- An employee does not have to use magic words or explicitly used the word “disability,” to put her employer on notice of her condition.
- King raised sufficient factual disputes whether the hospital knew that her condition substantially impaired her ability to perform the job’s essential functions. King repeatedly telling her immediate supervisor that she literally could not breathe and could not get off the couch without being out of breath and wheezing and that the asthma was debilitating is certainly sufficient notice of a disability.
Plaintiff Adequately Requested an Accommodation
- Plaintiffs have flexibility in how they request an accommodation.
- An employee need not explicitly used the word, “accommodation.”
- Medical documentation is not required, and a plaintiff’s own requests, whether written or oral, can be a sufficient request for an accommodation.
- Once an employee requests an accommodation, the employer has to engage in the interactive process.
- The employer must participate in good faith and conduct an individualized inquiry into possible accommodations as part of their interactive process obligations.
- Beginning on May 19, King started calling in and telling the on-call supervisor, whoever that might be, she was trying to get a leave but she hadn’t gotten it yet so she was reporting off again for the next day. A jury could reasonably find that King was requesting an accommodation by telling her supervisor that she wanted medical leave to handle her asthma flare up. By May 19, multiple people within hospital leadership knew that King was seeking medical leave to deal with harassment flareups.
- Her dealings with FMLASource also make clear that medical leave as the reasonable accommodation was being sought.
The Hospital Failed to Carry out Its Interactive Process Obligations
- The record indicates that FMLASource violated the hospital’s own policies when it did not consider King’s eligibility for non-FMLA leave. Instead, they told King that she was ineligible for FMLA leave and refused to allow her to actually make a request for non-FMLA leave.
- The hospital unreasonably stalled King’s request because of FMLASource’s errors. Although the hospital and FMLASource caused the error in the hourly calculation, they did nothing to fix it even after being approached by King that it needed fixing. It took several weeks for the hours to be updated, and when it was no one told King. Ultimately, the hospital put the burden on King to fix its own mistake. So, a jury could reasonably find that the hospital obstructed King’s attempt to apply for leave and thereby failed to participate in the interactive process in good faith.
- Failing to assist an employee in seeking accommodations may suggest bad faith.
- The hospital prematurely halted the interactive process by terminating King while her leave request was still outstanding.
- An employer may not stymie the interactive process by preemptively terminating the employee before an accommodation can be considered a recommended.
- If an employer terminates an employee before fully considering the request for an accommodation, the employer may need to reconsider the decision to terminate the employee.
- King’s immediate supervisor terminated her for failing to timely seek leave even though he knew that she was trying to do just that.
- Even though the hospital ultimately approved King’s request for leave, it never gave her the benefits of an approved leave, which would have included reinstatement.
- Employers cannot avoid ADA liability by rubberstamping a medical leave after terminating the employee.
Undue hardship Has Not Been Shown
- When an employer believes that granting medical leave causes an undue hardship, courts look first to the employer’s leave policies.
- If the employer’s policy provide for the kind of leave plaintiff seeks, courts will presume that granting the plaintiff’s request is not an undue hardship.
- King’s request fell within the hospital’s policies. It also fell below the prolonged leaves that the Sixth Circuit has found unduly burdensome.
- The hospital allowed its employees to seek emergency medical leave without advanced notice and even had policies in place for handling retroactively requests.
- Accommodating sudden flareups does not mean an undue hardship exists merely because handling those situations requires more flexibility.
- The hospital did not have any significant staffing disruptions and her immediate supervisor did not remember having to pick up any of King’s missed shifts.
- King’s absences did not amount to excessive absenteeism under the hospital’s disciplinary policies as they amounted to only a single occasion not warranting any disciplinary action.
- The hospital has not shown that keeping King’s job open while she applied for leave would have caused it an undue hardship. That is, keeping a job open long enough to allow the employee to apply for leave does not constitute an undue hardship.
- It isn’t my usual practice to blog on a case that is 10 months old. However, there are so many good things in this decision with respect to understanding how the ADA processes work in title I of the ADA that I simply couldn’t resist.
- A real nice explanation by the court as to when a job function is essential, i.e. when removing that function fundamentally alters the job.
- Medical leave is a reasonable accommodation even in the face of attendance policies.
- A nice explanation from the court as to when medical leave is considered reasonable. That is: 1) look to the amount of leave sought; 2) the employer’s leave policies; and 3) the employee’s prognosis, treatment, and likelihood of recovery.
- Courts can vary with respect to how much leave becomes unreasonable, so be sure to check your jurisdiction on that.
- Retroactive leave can be a reasonable accommodation.
- Magic words are not required when seeking a reasonable accommodation. That magic words not being required applies to both the disability portion of the request and to the accommodation portion of the request.
- When requesting an accommodation, medical documentation is not required to make that request.
- Employers need to be aware that as part of the interactive process they should not seek excessive documentation to confirm the situation. See this blog entry.
- We discussed the do’s and don’ts of the interactive process here.
- Unreasonable delay in granting a reasonable accommodation is actionable. See this blog entry.
- Employers need to allow the accommodation process to complete its course before terminating an employee.
- Leave policies need to be in order if you’re the employer.
- Undue hardship is an affirmative defense, and the burden is on the employer.
- I was a bit confused by the language of the court talking about whether a condition substantially impairs the person’s ability to perform the job’s essential functions. It seems like the court is getting ADA definitions mixed up. Whether a person is qualified depends on whether they can do the essential functions of the job with or without reasonable accommodations. It is a separate question whether the person has a disability, which points actual disability is a physical or mental impairment that substantially limits a major life activity. The other questions in this case were whether the employer was on notice of a disability and whether the plaintiff has sufficiently informed the employer of a request for a reasonable accommodation for their disability so that they could do the job’s essential functions with or without reasonable accommodations.
- Some of the language the court uses, leads to the question of whether an interference claim may not have been in order in this case. As I said before, plaintiff attorneys really should use interference claims more often than they do.
- Also interesting, is the court’s language that a qualified person with a disability is one who can safely and substantially perform the essential functions of the job with or without reasonable accommodations. That is not exactly how it works. With respect to qualified under the ADA, the question is whether the person can do the essential functions of the job with or without reasonable accommodations. It is true that a person is not qualified if they are a direct threat to self or others with respect to title I of the ADA. Direct threat, as we have discussed numerous times such as here, is a term of art and is a high standard to meet. However, none of this is the same as safely performing the essential functions of the job.