Indefinite Leave, Quirky Question # 123

Quirky Question # 123:

Here’s a problem we encounter periodically.  We have a large workforce (in excess of 100,000 employees).  An employee goes out on disability leave, with an expected return date of X.  As that date approaches, we are advised that the employee will need additional time away from the job.  We try to get precise information regarding when the employee actually will be back at work, but we just don’t seem to get a straight answer.  Some times, we are provided notes from physicians that simply push the return dates out to some indefinite point in the future.  Some times, the dates specified in the doctors’ notes come and go, without the employee returning to work.  The employee then advises us that he or she has experienced “complications” or that the “recovery is taking longer than anticipated” or that “the initial problem has caused related problems that will require additional time off,” etc.  Arrgghhh!

How long do we have to let the employee stay out on disability leave?  At some point, can we just give a firm date and state if the employee is not back at work by that date, he is fired?

Dorsey’s Analysis:

You are not alone.  The fact pattern you describe reflects one of the most common frustrations employers have with the Americans with Disabilities Act and other statutes bearing upon this issue – how do you deal with an employee out on an indefinite leave of absence?  Several other questions are implicit in this inquiry: a) how long can an employee remain out an leave; b) must the employer keep the job open for him or her; c) what should be done if the temporary replacement employee outperforms the employee on leave; d) must the employer find a “new” job for the employee when he or she is ready to return to work? None of these questions has an easy answer.

Let’s consider the legal issues you may wish to evaluate.  First, the Americans with Disabilities Act (ADA) creates a number of different issues for your consideration.  In most instances, the date your employee will return to work from a disability-related leave is a subject upon which you and your employee can reach agreement.  In certain situations, however, as in the question you pose, the return date seems to change constantly, some times legitimately, some times not.

Second, the issue of when your employee returns to work may implicate the Family and Medical Leave Act (FMLA).  Assuming your employee qualifies to receive benefits under this statute, he or she is entitled to 12 weeks of unpaid leave in a 12-month period.  Administering the FMLA becomes complicated when the employee’s reason for the leave (leave for himself/herself or a qualifying family member) is intermittent, perhaps spread out over a period of many months.  Ultimately, however, though calculating the time taken off may be somewhat difficult, the FMLA leave does have an endpoint.

Third, if your employee was injured while working, an entirely different statutory scheme comes into play – your state’s Workers’ Compensation statute.  For a work-related injury, your employee’s return to work date will depend on a variety of factors, including the nature of the injury, whether your employee is permanently or partially disabled, whether your company could provide your employee a job that addresses whatever limitations may have been imposed on your employee by his or her physician, etc.

Fourth, with respect to all three of these inter-related statutory schemes, you have to be sensitive to a potential retaliation claim.  If your employee has asserted his or her rights under the ADA, the FMLA, or a state worker’s comp statute, and your company then takes adverse action against the employee, you risk a claim of retaliation.  This does not mean that your company cannot, or even should not, take adverse action (such as termination), you just need to base your decision on sound, non-retaliatory reasons.

But, for the purpose of your question, let’s assume the your employee was not injured at work, and did not seek any leave from your company under the FMLA.  For the purpose of your question, I will assume that your employee has been absent from work due to a qualifying disability and has been discussing with your company, albeit without success, regarding when he or she should be able to return to work.

Even if your employee has a qualifying disability, which your company has been trying to accommodate by affording the employee an extended leave, this does not mean you must keep a job open indefinitely, or that your employee has the freedom to return to the job at any time in the recovery process.  This conclusion is grounded on the issue of whether your employee could perform the essential functions of the job, with or without a reasonable accommodation.

For example, in Peyton v. Fred’s Stores of Arkansas, Inc., No. 08-2346 (8th Cir. April 15, 2009), the appellate court examined a factually difficult case involving an employee suffering from ovarian cancer.  She informed her employer of her need to for hospitalization, and her fiance’ provided the employer with a note from her physician, “Floyce Peyton needs to be off work at least [until] 1/9/06.  Return date unknown.”  Plaintiff had surgery on January 12.  Her employer contacted her at the hospital to inquire how long she would be on leave.  Peyton allegedly said that she did not know, although she was heavily sedated at the time and could not recall the conversation.  On January 14, just two days following the surgery, the employer terminated the plaintiff’s employment.  After six months of chemo-therapy, plaintiff had recovered sufficiently to return to work.  By that time, however, her job had long since been given to another employee.

In the litigation, the defendant company agreed that Peyton had been disabled by her illness and subsequent treatment.  Thus, the sole focus of the litigation was whether the plaintiff could perform the essential functions of her job, either with or without a reasonable accommodation.  Peyton criticized the “interactive process,” which she argued her employer had failed to conduct.  Although the 8th Circuit considered (without deciding) the quality of the interactive process (or the lack thereof), the appellate court still found for the employer.

The court observed, “Despite the unfortunate circumstances of plaintiff’s illness, the ADA does not provide a recovery against her employer.  As noted, it is axiomatic that a person who cannot perform any of the functions of a job, with or without a reasonable accommodation, cannot, as a matter of law, be considered ‘otherwise qualified’ under the ADA.  That is the case here.”  The court noted that at the time Peyton had surgery and requested leave as an accommodation, she had no idea when she would be able to return to work.  The court stated, “her request for reasonable accommodation . . . is that defendant should have waited indefinitely to determine the full extent of her diagnosis, treatment and recovery.”  The court concluded that this claim “fails,” pointing out that courts recognize that employers “should not be burdened with guess-work regarding an employee’s return to work after an illness.”  The court cited to the 1999 decision of Browning v. Liberty Mutual Insurance Co., 178 F.3d 1043, 1049 (8th Cir.),

“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.”

Finding that Peyton’s illness and surgery made it impossible for her to perform the essential functions of the job and that there was no reasonable accommodation that could have been offered, the appellate court affirmed the summary judgment grant for the employer.

As the Peyton and Browning cases illustrate, when an employee fails to provide an employer with a definite return date from a disability-based leave, the courts may conclude that the employee is unable to perform the essential functions of the job.  In these contexts, an employer would not violate the ADA if it elects to terminate the employee seeking indefinite leave as an accommodation.

Keep in mind, however, that some courts have held that a requested leave, even of many months, may constitute a reasonable accommodation.  These decisions often arise in the context of mental disabilities, such as an employee suffering from depression or PTSD.  In these cases, where the employee has specified a return date, even one several months away, some courts have found that type of accommodation to be reasonable.  At that point, the analysis moves into the separate question of whether a protracted leave is likely to cause an undue hardship, which the employer has the burden to establish.

Finally, even though your company may have the right to terminate an employee who is out on an indefinite leave, I suggest that you examine carefully whether you want to do so.  First, if the employee out on leave is a long-term employee with a substantial knowledge base about your company, you lose a lot by terminating that individual.  Second, depending on the position of the employee out on leave, the time it takes to find a comparably qualified employee and train that individual may be roughly equivalent to the time your existing employee is on leave.  Third, if you accommodate the employee out on leave, you may ensure that you have an incredibly loyal employee in your workforce, someone truly appreciative of the accommodation provided by your company.  Fourth, not only is the directly affected employee likely to be extremely loyal if you accommodate his or her leave request, your company also may enhance its good will with other employees, who respect the way in which the company has treated your employee on leave.

Let’s face it, the ADA is a statute that provides protections for everyone.  We are all just one drunk driver, one contaminated food product, one freakish accident, or one unexpected illness, from needing its protections.  The way in which an employer treats employees seeking an accommodation under the ADA, may say quite a bit about the values of the company, a fact that will not be lost on your employees.

Dorsey & Whitney

Dorsey is a business law firm, applying a business perspective to clients' needs. We make it our first priority to know the context in which you do business - your market, your competitors, your industry.

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