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Though employee’s condition was temporary, indefinite leave was not reasonable accommodation

By Kathleen Kapusta, J.D.

Even though an employee’s condition was temporary rather than chronic, and thus was likely to be fully corrected at some point in the future, he did not request, at the end of his six-month leave, a specific period of time in which to recover from his surgery following a work-related shoulder injury. Rather, he was essentially requesting a leave of absence that would allow him to work “at some indefinite point in the future,” explained the Eleventh Circuit, affirming in an unpublished opinion the grant of summary judgment against his ADA failure-to-accommodate claim. Summary judgment was also affirmed against his state-law claim alleging unlawful retaliation for pursuing worker’s compensation benefits (Billups v. Emerald Coast Utilities Authority, October 26, 2017, per curiam).

As a utility service technician for a local governmental body providing water, sewer, and sanitation collection services, the employee’s job was physically demanding. In December 2013, he injured his shoulder at work and was diagnosed with a probable right shoulder strain and given lifting, pulling, and pushing restrictions. Because he could not perform the essential functions of his job, he took leave under the FMLA.

Surgery delayed. In late January 2014, his doctor recommended surgery, which was scheduled for early February. It had to be rescheduled twice, however due to no fault of the employee, and eventually took place in April, more than a month after the expiration of his FMLA leave. In the meantime, the department director, in an email to the employee’s supervisor, asked about his FMLA status, stating “I don’t plan to keep him. I will let him go. His record in the past is not good.” He was reminded, however, that pursuant to the employer’s policy, the employee was entitled to 26 weeks of leave.

Termination. After his surgery, his doctor informed him that it might take six months to recover and return to work without restrictions. In May, his surgeon signed a workers’ comp form identifying his post-surgery restrictions as “sedentary only” and stating that he was likely to return with no restrictions in six weeks. In early June, he was notified that his six-month leave would expire on the 18th and he was likely to be terminated. At a predetermination hearing on June 19, the employee presented medical records indicating he could be cleared for duty by July 15, but indicated that he would have to do most work with his arms close to his body. He was terminated on June 23 because his “continuing inability to perform the essential requirements of [his] job, with or without accommodation, [created] a substantial hardship and impair[ed] [Emerald Coast’s] ability to properly fulfill its public mission.”

The employee then sued under the ADA, alleging his employer failed to provide a reasonable accommodation for his disability and retaliated against him for seeking worker’s comp benefits. The district court granted summary judgment against both claims.

Reasonable period of leave. On appeal, the employee argued his employer should have accommodated his disability by offering a limited period of unpaid leave while he recovered from surgery. Citing Eleventh Circuit precedent, the appeals court observed that while a leave of absence might be a reasonable accommodation in some cases, it is unreasonable unless it would allow the employee to perform the essential functions of his job presently or in the immediate future. Although the employee’s situation here was different that the cases cited by the court because his disabling condition was temporary rather than chronic, the court was unable to say, on the record before it, that the requested accommodation was reasonable under its precedent.

No certainty. It was undisputed the employee could not perform the essential functions of his job as of the date of his termination, said the court, noting that at the predetermination hearing, he did not request a specific period of time in which to recover and it would not have been reasonable to expect him to do so. He was still participating in physical therapy and it was uncertain when he would be cleared to return to work without limitations rendering him unable for perform his job’s essential functions. While his surgeon indicated in late May that the employee might be able to return in mid-July, he was not scheduled to see the surgeon again until July 8. Further, he was not projected to be discharged from physical therapy until July 21. Thus, said the court, at best there was a possibility, but no certainty, that he could return to work by mid-July.

Even then, he still may not have been able to perform his job’s essential functions as his physician in mid-July 2014 limited him to lifting no more than 20 pounds overhead and advised him to complete all work with his arms close to his body. Although the employee believed he could perform the job with those limitations, his testimony reflected that he could only perform “most” of the work, not all of it. Noting that the employer was not required to reallocate an essential part of his job to another worker, the court observed that his request for additional leave was essentially an open-ended request for “sufficient time to ameliorate his conditions” following the surgery. Thus in light of his employer’s allowance of six months of leave and the uncertainty about when he could perform the job’s essential functions in the future, he failed to show that a reasonable jury could conclude that he was denied a reasonable accommodation that would have allowed him to perform the essential functions of his job either presently or in the immediate future.

Retaliation. As to his retaliation claim, the court noted that the temporal proximity between his worker’s compensation claim and his termination—over six months—was not sufficiently close to establish a causal connection. Nor was there any evidence of pretext. While the department director was concerned about his record of on-the-job injuries, the court found the evidence undisputed that at the time of his termination, and following an extended period of medical leave, he simply was unable to perform the essential functions of his job.