Accommodating Disabled Employee with Serious Illness, Quirky Question # 101

Quirky Question # 101:

We recently hired a 49 year-old employee to manage one of our manufacturing facilities.  The employee completed two weeks of paid training and began working at the beginning of the month.  His role is central to the success of the facility.  Less than a month into his new job, however, he called in sick.  Shortly thereafter, we learned our new employee was diagnosed with a serious form of cancer that required immediate surgery followed by extensive chemotherapy and radiation therapy.We have proactively inquired of our employee, as part of the interactive process required by the Americans With Disabilities Act, whether he will be able to return to work, and if so, when.  He informed us that based on his physician’s prognosis, he is not available to return to work for an indefinite period, a representation we confirmed with his physician.  He also told us that he will be unable to perform the functions of his position during several rounds of chemotherapy and radiation treatment that likely will span at least six months.  Our manufacturing facility cannot operate without a manager.  It does not appear that there is any reasonable accommodation that would allow this individual to perform as a manager or in any other capacity during his treatment and recovery period.  (This assumes that at some point he receives a limited release to return to work.)Do we need to hold this employee’s position open during his lengthy recovery?  Can we terminate him?  If we discharge him, could we be liable for discrimination as a result of his cancer and his cancer treatment?

Dorsey’s Analysis:

Regrettably, the question posed is not uncommon and is one that employers seem to be facing with increasing regularity.  As the baby boomers age, inevitably cancers among this aging population are diagnosed with greater frequency.  This issue is particularly affecting the workforce in the 50-70 age range.  Of course, the good news is that medical science continues to make significant advances in the successful treatment of cancer, often involving a combination of surgery and chemotherapy, radiation treatment, and other sophisticated treatments.  The challenge for employers is that such treatments are physically taxing for those being treated and often result in employees being too sick to work during the treatment and recovery phases.

On the fact pattern you presented, the fundamental question your company is confronting is whether terminating your employee would violate the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, et seq., and/or comparable provisions of parallel state statutes.

The facts described above do not implicate issues under the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601, et seq. because, with only one month of employment, your employee would not meet the eligibility requirements for the FMLA.  Therefore, he would have no claims under that statute.

Conceivably, the facts could raise a question as to whether the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621, et seq., was violated.  For purposes of responding to this question, however, I will assume your company’s contemplated termination decision is not motivated by age.  There is no evidence to suggest that age is a factor here, especially since your firm chose just weeks before to hire this individual without regard to his age.

Rather, the facts you describe suggest that your company’s contemplated termination decision is solely motivated by the fact that your employee is likely to be unable to work at all for the foreseeable future, coupled with the fact that your company needs a full-time manager for your manufacturing facility.  Turning then to the ADA, the initial issue is whether the employee who became ill is qualified to perform the essential functions of his job with or without accommodation.

The ADA bars discrimination “against a qualified individual on the basis of disability in regard to . . . discharge of employees . . . and other terms, conditions and privileges of employment.”  42 U.S.C. § 12112(a).  The ADA further defines “discrimination” to include “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an . . . employee . . . “  Id., § 12112(b)(5)(A) (emphasis added).  Under the ADA, a “qualified individual with a disability” is “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.”  Id., § 12111(8).  Finally, “reasonable accommodation” includes “job restructuring, part-time or modified work schedules, [and] reassignment to a vacant position . . .” among other possible accommodations.  42 U.S.C. § 12111(9)(B).

Based on the facts in your question, there can be little doubt that your cancer-stricken employee is disabled.  Thus, the fundamental issue is whether your disabled employee is otherwise qualified to perform the essential functions of his job, either with or without reasonable accommodation.  The limited facts presented suggest this employee is not so qualified.

The employee and his doctor have advised you that he cannot presently do his manager’s job or any other job.  Furthermore, it is uncertain when (if ever) he will be able to return to such a level of activity that allows him to perform the essential functions of his job as a manager, or some other position.  On these facts, while it may seem harsh, the ADA likely would not provide legal protection for this employee.  In short, your company can terminate this employee without violating  the ADA.

The Eighth Circuit Court of Appeals recently reached such a conclusion on facts similar to those presented above.  See Peyton v. Fred’s Stores of Arkansas, Inc., No. 08-2346 (8th Cir. April 15, 2009).  In Peyton, the new hire went out with abdominal pain just a few days into her new job as the manager of an Arkansas discount store.  She was diagnosed with ovarian cancer and she and her doctors advised she would be unavailable indefinitely during her treatment.  Fred’s terminated her and she subsequently brought an ADA claim.

In affirming the District Court’s summary judgment ruling, the appellate court noted that “it is axiomatic that a person who cannot perform any of the functions of a job, with or without reasonable accommodation, cannot, as  a matter of law, be considered ‘otherwise qualified’ under the ADA.”  Fred’s, slip op. at 6.   The Court added that Peyton’s concession that she could not work during chemotherapy and that, at the time of her termination, without the benefit of hindsight, she could offer no concrete idea of when she might be able to return to work in the  future, doomed her claim.  Id.  That is because, “a request for an indefinite leave of absence . . . is not a reasonable accommodation under the ADA.  Id. (citations omitted).

The Eighth Circuit added that it is not a valid reasonable accommodation for a cancer patient such as the one described in Fred’s torequest an indefinite waiting period before a termination decision can be made to allow for an assessment of the long-term diagnosis, treatment, and recovery of the employee.  Fred’s, slip op. at 6.  The Court emphasized that “employers should not be burdened with guess-work regarding an employee’s return to work after an illness.”  Id.   In so stating, the Court reiterated:

Employers are not qualified to predict the degree of success of an employee’s recovery from an illness or injury.  To afford . . . protections of the ADA during the early stages of . . . recuperation from surgery, . . . would be to burden [the employer] with the duty to see into the future.  We do not believe that such was the intent of Congress in passing the ADA.

Id. at 7 (citing Browning v. Liberty Mutual Ins. Co., 178 F.3d 1043, 1049 (8th Cir. 1999)).

Of course, making a legally defensible termination decision does not ensure your company will not have to defend such a decision in court, even if it is legally correct.  Thus, notwithstanding the guidance presented here, you should be sure to exhaust the interactive process and thoroughly explore accommodations for this, or any other, cancer-stricken employee.  Handling such situations with care and compassion, even if the end result must be termination, can help reduce the chances that the terminated employee may sue under the mistaken belief he or she has been a victim of discrimination.

A final consideration, notwithstanding the short tenure of such an ill employee, would be to pay a small amount of severance in exchange for a release of claims.  Doing so would both show the your company’s compassion and good faith in helping to transition one of your employees (albeit a very new one) through the difficult and traumatic experience of a cancer diagnosis and treatment, and the attendant financial pressures that inevitably accompany such unfortunate diagnoses.

Dorsey & Whitney

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