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Failure to hold open job for employee on disability leave may have violated ADA

By Matt Pavich, J.D.

An employer that failed to hold open a job for an employee who was on short-term disability leave may have violated the ADA, a federal district court in Alabama has ruled. Denying summary judgment in part, the court found that the employer knew well in advance of its self-imposed six-month deadline that the employee wished to return to work, but failed to include her in a headcount that would have protected her job (Hunter v. BASF Corp., March 13, 2017, Haikala, M.).

In June 2013, the employee suffered a mental breakdown for which she went on short-term disability. Under the employer’s short-term disability policy, her job would have been protected only for six months. On July 10, the employee met with a psychiatrist who deemed her capable of returning without restrictions, but the employee told her case manager that she was not ready to return. On August 22, the case manager learned from the psychiatrist that the employee could not return to full-time on September 15.

Based on these contradictory assessments, the employer required the employee to have an independent medical exam on September 13. That doctor concluded that the employee was not ready to return, but could in six to eight weeks if she responded well to medication. On October 24, the psychiatrist cleared the employee to return to work, which she wished to do. The case manager told the employee to see the psychiatrist in November to obtain a required cleared-to-return-to-work form. The employee received the form, but failed, despite repeated requests, to submit the form and the employer scheduled a second examination with the second doctor. That doctor concluded on January 16, 2014 that the employee could return to work.

Termination. At this point, it was more than six months after the employee went on disability leave. The human resources manager said there were no longer any open positions and offered the employee a severance package. The HR manager did so, despite a company directive requiring her to keep her employee headcount as it was on October 31, 2013. The employee filed suit alleging discrimination and retaliation. The employer moved for summary judgment.

Failure to accommodate. The employee alleged that the employer should have held her position open while she was on disability leave. The court noted that this was not a typical failure to accommodate claim and that generally employers are not required to indefinitely keep open positions in a situation where, as was the case here, the employee’s return-to-work date is uncertain. In the court’s view, based on the particular facts of this case, the employee could plausibly argue that the employer could have kept open her position.

Although her return was uncertain for the first four and half months of her leave, the employee’s job was not specialized and, pursuant to the employer’s policy, she should have been eligible to reclaim her job within six months. That policy suggested the employer could withstand the temporary loss of non-specialized employees and the employer had the financial and personnel resources to withstand the employee’s loss for the six month period.

Moreover, on October 24, when the psychiatrist cleared the employee to return to work, her return became far less uncertain. The only reason she did not return that day was that the employer required her to obtain a form from the psychiatrist. The court found that it would be unreasonable to allow the employer to delay the employee’s return and then to terminate her. Furthermore, when the company issued the headcount directive, it had known for a week that the employee wished to return to work. Thus, it could have held open her position merely by counting her as an employee.

The court also found that by expressing a desire to return October 24, the employee requested a reasonable accommodation to keep her job open until she could comply with its policies. The employer would not have been unduly burdened by the request. Thus, the court denied the employer’s motion for summary judgment on the failure to accommodate claim.

Retaliation. The court granted the employer’s motion for summary judgment on the retaliation claim. It found no evidence that the employer terminated the employee in retaliation for her request for an accommodation or for an EEOC charge she had filed in 2012. The court also found no temporal proximity between the EECO charge and the termination.