Professional Service Agreement

Federal Court Offers Useful Guidance on the ADA and FMLA

March 11, 2019

In a wide-ranging case, the U.S. Court of Appeals for the Fourth Circuit has offered guidance on a number of interesting and significant issues under the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA). Under the ADA, employers must engage in the interactive process, but ultimately employers have the ability to choose between effective accommodations. Employers may request medical exams where they are job-related and consistent with business necessity. Employers may ask questions about work performance, even where it knows or suspects that the performance issues are tied to a medical condition. If an employee with a known – or even suspected – medical condition is requesting leave, it is critical for the employer to meet its obligation to inquire whether FMLA leave is needed.

Background of the Case: In Hanna P. v. Coats, an employee who had previously informed her managers of her depression but did not request accommodations began experiencing attendance issues – extreme tardiness and numerous absences without communication. She and her managers developed a plan to address the attendance and communication issues. She failed to comply with the plan, however, and her managers then revised the plan without her input. Because she continued to experience attendance issues, her managers directed her to meet with an EAP counselor. She told them that her psychiatrist was recommending four weeks of leave, but they told her that she had to talk to the counselor before leave would be considered. Following her appointment, her leave request was approved but she withdrew it without explanation. After several more weeks with continued attendance issues, she renewed her request for leave, which was granted two weeks later. Just before she began the leave, she applied and was recommended for another position; however, the chief management officer rejected her application because of her recent performance issues. She then sued, alleging violations of the ADA and the FMLA.

The Court’s Ruling:

Failure to Accommodate. The employee alleged multiple violations of the ADA, starting with a failure to provide reasonable accommodation for her disability. She claimed that the employer failed to engage in the interactive process when it unilaterally rescinded the attendance plan and directed her to consult with EAP. The Fourth Circuit disagreed, noting that the employer had, in fact, collaborated with the employee in developing the attendance plan, and only chose a different accommodation when that plan did not work. Moreover, the Fourth Circuit stated that, while employers must engage in the interactive process, it “has the ultimate discretion to choose between effective accommodations.” Moreover, the employer need not provide the accommodation the employee requests, as long as the accommodation is effective.

Medical Examination. The employee also argued that the referral to EAP was an improper medical exam under the ADA. Even assuming that the EAP evaluation constitutes a medical exam, which is not necessarily the case, the Fourth Circuit found that the referral was both job-related and consistent with medical necessity, which is the standard for requiring medical exams under the ADA. In this case, the employer had a reasonable belief that the employee’s ability to perform the essential functions of her job were impacted by her attendance and timely reporting issues. Of particular interest, the essential job function identified by the Fourth Circuit is “a regular and reliable level of attendance [which] is a necessary element of most jobs.”

Confidential Medical Information. The employee claimed that her supervisor’s inquiries about her attendance were designed to improperly solicit confidential medical information about her depression. The Fourth Circuit rejected this premise, noting that the supervisor was entitled to ask about her poor work behavior. As it has previously held, “[T]he ADA does not require an employer to simply ignore an employee’s blatant and persistent misconduct, even where that behavior is potentially tied to a medical condition.”

Discriminatory Failure to Hire. The Fourth Circuit found that the employee’s attendance issues were a legitimate reason for her non-selection. Although her attendance issues were caused by her medical condition, the employer was nonetheless able to take those performance issues into account in making its hiring decision. The Fourth Circuit also noted that its role is not to determine if the employer made the right decision, but only to determine if it made an illegal one, because it does not “sit as a kind of super-personnel department weighing the prudence of employment decisions.”

FMLA Interference. With regard to the FMLA claim, the employee fared better. The Fourth Circuit found that the employee’s disclosure of her depression along with her initial request for leave as recommended by her psychiatrist triggered the employer’s obligation to inquire as to whether she needed FMLA leave, which it failed to do. Moreover, the failure to notify her of her FMLA leave rights negatively impacted her use of leave.