12 Months of Leave Not a Reasonable Accommodation
May 08, 2017
An employee’s request for 12 months of leave in addition to the five months of short-term disability (STD) already taken was not facially reasonable and was unreasonable under the particular circumstances of this case, the First Circuit held, affirming summary judgment in her former employer’s favor on her Americans with Disabilities Act (ADA) disability discrimination claim.
The appeals court was careful to note, though, that its holding was a narrow one. “Although we have previously suggested that ‘there may be requested leaves so lengthy or open-ended as to be an unreasonable accommodation in any situation,’ we need not—and therefore do not—decide that a request for a similarly lengthy period of leave will be an unreasonable accommodation in every case,” the court stressed.
Leave and more leave. The pharmaceutical employee began to see a psychiatrist for depression and anxiety, and in December 2011, a year into her treatment (and an intervening, unrelated brain tumor diagnosis, not at issue here) her psychiatrist recommended she stop working. She applied for short-term disability, and after being initially denied due to insufficient documentation, she was approved for benefits. Her psychiatrist estimated she would need to be on leave for about five months, taking her to May 2012. However, her employer only authorized her leave to January 22 but then extended her leave on short intervals through mid-March.
Supervisor triggers relapse? In a treatment record provided by the psychiatrist in mid-March, he described his patient as “mildly ill.” The employer terminated the employee’s STD benefits on March 11, explaining she did not produce adequate documentation of a disability. She received a follow-up letter from the company telling her to return by March 22 or it would presume she resigned. The psychiatrist asked that her leave be extended to March 30, but the supervisor called her on March 22, pressuring her to resign and to take a severance offer. This conversation so upset the employee she relapsed; her psychiatrist now diagnosed her as “severely ill” and informed the employer she would need additional leave. Although her employer extended her leave through the end of April, on May 7, the employer informed her that her STD benefits had terminated on April 30 and, on May 14, sent another letter stating that if she didn’t return to work on May 17, it would presume she resigned.
Additional documentation. The employee did not come back on May 17. Instead, her psychiatrist faxed additional documentation. In one section of the company’s standard leave form, he asserted that her condition commenced in 2009 and would last “more than a year.” Elsewhere, he sought additional leave noting the employee was “unable to work at this time.” In a different section asking for an estimate of the beginning and end date of incapacity, the psychiatrist entered: “12 months.”
The employer concluded this additional documentation did not support reinstating her STD benefits. It sent another letter on May 18 explaining that because she did not return to work on May 17 she was presumed to have resigned and, at any rate, she would be terminated effective July 19 anyhow because of a reorganization of the field sales team. She rejected the severance offer that accompanied this news and filed suit instead. The district court awarded summary judgment to her employer on her claims under the ADA and state law; the First Circuit affirmed.
Can’t perform essential job functions. The employee failed to show she could perform the essential job functions with a reasonable accommodation, mainly because her request for 12 months of additional leave (essentially indefinite leave, in the district court’s estimation) was unreasonable on its face or in the particular circumstances of this case. Moreover, she could not show that an additional year off would enable her to perform the essential functions of her position.
The employee appeared to suggest that her psychiatrist had informed the employer that an additional 12 months off would enable her to return to work to perform the essential job functions, but the appeals court found this contention “dubious,” as there was no evidence the psychiatrist communicated this opinion in 2012, when it might have mattered; rather, she relied on her psychiatrist’s deposition testimony, which came long after the actual accommodation decision was to have been made. The employee also pointed to the psychiatrist’s “12 months” entry in response to the “period of incapacity” inquiry on the form faxed to the employer, but this hardly conveyed the opinion that the additional 12 months of leave would allow his patient to be capable of performing the essential job functions. Even if the court accepted the premise that this entry impliedly suggested she would be ready to perform her duties after a 12-month leave—and that the employer had an obligation to read between the lines in this manner—the psychiatrist did not provide any medical documentation in support of this implicit assertion.
Request was not reasonable. In addition, a proposed accommodation of 12 additional months of leave was not reasonable on its face. The sheer length of the leave request, on top of the five months already taken, troubled the appeals court. It noted that courts confronted with requests for leave of even half this duration have found them to be unreasonable. It further noted the burdens such extended leave periods place on an employer and said the employee was obligated to take these burdens into account when making the case that such a leave request was facially reasonable. (The court was careful to note, however, that an employee need not show the absence of an undue hardship; the subsequent burden of establishing undue hardship remains the employer’s.)
To establish that her request was reasonable, the employee pointed to the employer’s benefits offerings: The company had a 26-week short-term-disability benefit and long-term disability kicked in thereafter. But those benefits are only available if the employee sufficiently documents the need for them, and the employer had concluded that the employee had not done so; nor did she avail herself of the appeal process in the company’s STD policy. Consequently, she failed to show that an additional 12 months of leave was reasonable “under the circumstances” of this particular case.
Other adverse holdings follow. The employee argued that the employer failed to show that it would face undue hardship if she took an additional 12 months of leave, but it didn’t have to make this showing because she didn’t satisfy her initial burden of identifying a reasonable accommodation first. By that measure, her failure to first identify a reasonable accommodation also foreclosed her claim that her employer unlawfully refused to engage in an interactive process.
Retaliation. The employee claimed her request for 12 months of additional leave was protected activity and that it led to her discharge; however, the appeals court was unconvinced that the employer’s articulated justifications for her termination were pretextual. She argued there were shifting reasons given for her termination, but there was no inconsistency in the separate legitimate, nondiscriminatory reasons given: that she failed to return to work and thus was presumed to have resigned, and that her job was eliminated in a company reorganization.
In her effort to show pretext, the employee also argued that the company failed to follow its own STD policy in various ways and that the claim her position was eliminated was “completely false.” These arguments were without merit, the appeals court found. Finally, she offered temporal proximity: Her May 18 termination letter came the day after her request for 12 more months of leave. This could get her over the prima facie burden, but it wasn’t enough to satisfy her ultimate burden of establishing that the real reason for her termination was unlawful retaliation.
