Most employers know that an unpaid leave of absence can, in some situations, be a reasonable accommodation under the Americans with Disabilities Act (ADA). Under the EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the ADA, "...permitting the use of accrued paid leave, or unpaid leave, is a form of reasonable accommodation when necessitated by an employee's disability."
But, a difficult situation arises when an employee is completely unable to perform his or her job due to injury or illness and the employee (or his or her doctor) is unable to provide a specific return-to-work date. What is an employer's obligation when the amount of time that an employee needs to recover is open ended or when the employee's recovery is uncertain? A recent case provided some helpful guidance as to when leave is, and is not, something that needs to be granted.
The Eighth Circuit Court of Appeals recently decided that Fred's Stores of Arkansas did not violate the ADA by terminating the employment of Floyce Peyton, a retail store manager who was unable to work due to a bout with cancer (from which she ultimately recovered) because the ADA does not require an employer to keep an employee's job open indefinitely. Peyton v. Fred's Stores of Ark., Inc., No. 08-2346 (8th Cir. 2009).
Peyton was hired in December 2005 and after some training began working as a store manager on January 6, 2006. Three days later, on January 9, 2006, Peyton was diagnosed with ovarian cancer and provided a note, signed by her doctor, that she would have to be off work through "at least" January 9 with a return date "unknown." Peyton had surgery on January 12. After her surgery, her area manager called and asked how the company could accommodate her. Peyton responded that she did not know how long she would be out. On January 14, Fred's decided to replace Peyton because the store needed a manager and informed Peyton that she was being "let go." After six months of chemotherapy, Peyton recovered and was again able to perform the duties of a store manager.
Peyton sued Fred's alleging violations of the ADA. The parties did not dispute whether Peyton was disabled because of her illness and treatment. The issue was whether Peyton was otherwise qualified to perform the essential functions of her job with or without accommodation.
Fred's argued that because Peyton was unable to work, she was not "otherwise qualified" when she was discharged. Peyton argued that Fred's should have waited to determine the full extent of her diagnosis, treatment and recovery before firing her.
Acknowledging the unfortunate circumstances of Peyton's illness, the court found that employers should not be burdened with "guess-work" regarding when an employee suffering from a serious illness will be able to return to work. The court found that at the time Fred's terminated Peyton: a) Peyton was unable to perform the essential functions of her job; b) Fred's had no information indicating when, if ever, Peyton would be able to return to work; and c) there was no reasonable accommodation that would have allowed her to do so. Therefore, Fred's did not violate the ADA.
These are difficult situations. They defy hard-and-fast rules and must be evaluated on a case-by-case basis. In Fred's, the court might have been influenced by the fact that the company was confronted with losing an employee only three days after she had started in the position that she had been hired to fill. One is also left to ponder how the court would have evaluated the situation if the employee's doctor had stated that the employee would be able to return to work six months after her surgery.
Key points for employers to consider in these situations include:
- A requested accommodation for time off must be for the purpose of allowing the employee to recover sufficiently to be able, with or without reasonable accommodation, to perform the essential functions of the job again. A request for an extended leave so that the employee's progress can then be evaluated may not be a reasonable accommodation, as the employee is not "otherwise qualified."
- An employee may not be a "qualified individual" under the ADA if the employee is both unable to work and unable to provide information regarding when he or she will be able to return to work.
- An employer is not required to guess at, or wait indefinitely for, a return-to-work date.
As a final note, it is always essential for an employer to evaluate whether the employee is entitled to protection under other laws or legal obligations, such as an employment contract, workers' compensation laws or the Family and Medical Leave Act. For all the reasons discussed above, an employer must tread carefully in these situations. Employers should seek legal counsel before discharging an employee who has requested, or is on, leave due to an injury or illness.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.