About Us  |  About Cheetah®  |  Contact Us

Employer to answer EEOC claims that telework accommodation denied, worker fired when FMLA exhausted

By Joy P. Waltemath, J.D.

Refusing to dismiss the disability bias and wrongful termination claims the EEOC brought on behalf of a patient accounts representative who was discharged after she did not return to work without restrictions following exhaustion of FMLA leave, a federal district court in North Carolina found that the complaint adequately alleged that she was qualified and linked her employer’s failure to accommodate her to her discharge. The complaint alleged that the employee spent a good part of her day making phone calls arranging home health services, that she could have performed those essential functions with the requested accommodation of telework, which would have removed the rep (who suffered chronic bronchitis and COPD) from the respiratory irritants at the office and reduced the amount of time that she would spend talking continuously (EEOC v. Advanced Home Care, Inc., April 10, 2018, Schroeder, T.).

The EEOC’s complaint alleged that the main function of the employee’s job was to manage cases for patients who required at home health care services, which necessitated that she spend some portion of her typical work day on the telephone. After a particularly difficult season of asthma attacks and bronchitis, the employee collapsed at work, was hospitalized, and diagnosed with chronic bronchitis and COPD.

The employee took about three weeks of FMLA leave and when she returned, she requested telework either part-time or full-time as an accommodation because it would prevent her from being exposed to irritants at work and she would not have to take inbound calls while teleworking, resulting in less time continuously talking. Allegedly the employee asked about telework at least three separate times but never received a response. She went on FMLA leave again for her disability within three months, and as the end of her leave allotment approached, she was told that if she could not return to work without restrictions at the end of her leave, she would lose her job. After she was fired, the EEOC sued on the employee’s behalf.

Qualified with a reasonable accommodation. In moving to dismiss, the home health care employer claimed that the EEOC failed to allege sufficient facts that the employee is a qualified individual because it did not allege facts demonstrating the essential function of her position or that she could have performed it with a reasonable accommodation—and it failed to show that telework was a reasonable accommodation. According to the EEOC, however, the complaint had done so: it alleged that the employee served as a case manager for patients requiring home services and was required to spend part of her day on telephone calls. Thus, the essential function of her job was to manage cases for patients who require home health services, which she could have performed with a reasonable accommodation of telework. Her job was performed in part via telephone; “telework would allow her to perform the essential function of her position by removing her from the potential respiratory irritants at the office and reducing the amount of time that she would spend talking continuously.”

Agreeing with the EEOC, the court reasoned that while the duties of the employee’s position were not described in depth, they were sufficiently alleged, particularly as to the need for accommodation. The EEOC had also alleged sufficient detail about the requested accommodation: The employee requested the accommodation of telework (part-time or full-time), some of her work required her to be on the telephone, and she could perform the essential function of her position with the requested accommodation. That was enough for the court to draw the reasonable inference that the employee could have performed the essential function of her position with the requested accommodation.

The EEOC also pointed out that it is not required to plead facts to rebut any potential undue hardship defense to the telework accommodation that the employer might have, and the court concurred, noting that whether the accommodation is reasonable is a fact question, and the employer bears the burden of proof to establish an undue hardship defense.

Wrongful termination. Although the employer argued the employee was not fulfilling its legitimate expectations because she was not working at the time of her discharge and said she was unable to return to work after exhausting her leave, the EEOC countered with its allegations that the employee’s supervisor repeatedly told her that she would be terminated when her FMLA leave ended if she could not return to work without restrictions. Again, the court agreed with the EEOC, finding the wrongful discharge complaint survived as well. Specifically, it alleged the employee had received a satisfactory performance review while out on leave, had requested accommodations on several occasions before her latest leave but received no meaningful response, and was discharged upon the expiration of her FMLA leave under circumstances giving rise to a reasonable inference it was because of her disability.