Doctor’s input dooms employee’s argument

Posted February 12, 2021

An employee’s doctor keeps delaying the return-to-work date. Sound familiar?

Case in point

A car accident in June left Padma with serious injuries. She sought short-term disability benefits and medical leave under the FMLA. Her doctor indicated that she would be unable to perform any and all functions until September 8.

Padma asked the company’s HR department if she could return to work before receiving a complete medical clearance, as she had a lifting restriction. She was told that all restrictions needed to be lifted before she could return to work per company policy.

In what is a not uncommon scenario, Padma fell into a frustrating cycle wherein her doctors would examine her, predict she could return to work in some number of weeks, then later elongate their prediction at a follow-up visit. On August 24, doctors indicated that she was getting better, but was not quite ready to return to work – that she was still totally disabled.

This happened again on October 3, after which her doctor indicated she needed evaluations that would take at least six more weeks. By now, of course, her 12 weeks of FMLA leave had expired. On October 26, Padma was told that, per policy, an employee unable to return to work after six months of leave would be terminated. To accommodate the evaluation, Padma was given more leave until November 14. Unfortunately, the evaluation was not made in time, and doctors indicated that she would not return to work until the following February.

Padma asked for still more time off but was turned down. Instead, she was terminated on December 14, six months after leave began. She sued, alleging that the company failed to accommodate her. Remember, just because FMLA leave ends, does not mean that all an employee’s protections — and your obligations — end.

This time around, the employer won the case, arguing that Padma was not a “qualified individual” under the Americans with Disabilities Act (ADA). Therefore, terminating Padma was not a violation. Padma could not prove that she was able, with or without reasonable accommodation, perform her job. She tried to argue that she could return to work with accommodations, but that contradicted what her doctors said, which was that she was totally disabled.

The court indicated that it would defy common sense to demand that the employer disregard these well-documented medical opinions and allow its employees to prematurely return to work, thereby jeopardizing their safety. Instead, the employer was entitled to rely on recommendations that Padma not able to safely perform an essential function of her job.

Not mentioned in the case was the employer’s policy of requiring employees to have no restrictions. This is generally a violation of the ADA. Inflexible leave policies are also an issue, since a policy exception can be a reasonable accommodation. Therefore, just because this employer dodged this issue, doesn’t mean another would not. Such policies should be eliminated.

McAllister v. Innovation Ventures, LLC, 7Th Circuit Court of Appeals, No. 20-1779, December 30, 2020

This article was written by Darlene M. Clabault of J. J. Keller & Associates, Inc.