Massachusetts Employment Law Letter

Court banks leave of absence win for employers!

Managing medical leaves of absence can be very challenging.  It becomes even more frustrating when an employee’s return date is uncertain or the diagnosis is obscure and recovery is uncertain. Even after an employee’s Family Medical Leave Act (“FMLA”) leave has been exhausted, there is a potential obligation to extend leave under the Americans with Disabilities Act (“ADA”) and Massachusetts anti-discrimination laws.  Indeed, one of the most complicated issues for employers is whether, and under what circumstances, an extension of a leave of absence is a reasonable accommodation.  Without clear guidance, employers are left to wade through a morass of uncertainty regarding whether to keep positions open or terminate an absent worker. 

Good news!  In a recent case, briefed and argued by Skoler Abbott Partner, Marylou Fabbo, Associate Editor of the Massachusetts Employment Law Letter, the U.S. Court of Appeals for the First Circuit upheld a federal district court ruling and found that an employer was not required to keep a job open when the employee could not provide a date of return.  Read on to learn more about the specifics of this important decision for Massachusetts employers.

When are you coming back?  “I don’t know . . . .”

Kathy Henry was a commercial credit analyst for United Bank who evaluated the credit-worthiness of commercial borrowers and made lending recommendations to the Bank.  In January 2008, she was diagnosed with a spinal cord injury that caused several complications.  As part of her treatment, she was later scheduled to see a neurologist on September 24, 2008.

Despite her injury, Henry was initially able to perform her job duties with some accommodations.  Nevertheless, her condition worsened, and she required a medical leave of absence, beginning on July 1.  Her treating physician indicated in the documentation that such leave would be “until further notice.”

“I still don’t know . . . maybe September?”

Henry’s condition did not improve, and in late July her doctor extended the leave for three weeks.  As a result, the Bank informed Henry that her “FMLA/Disability Leave” had begun on July 1 and that she had nine weeks remaining.  Then, in mid-August, the doctor provided another statement indicating that it was “indeterminable” when Henry could return to work.  Henry informed the Bank that her physician wanted her to remain on leave until her neurologist appointment in September.

In the interim, the Bank experienced staffing issues arising from Henry’s leave.  The short-staffing caused a strain because the two other credit analysts in the department were required to carry Henry’s workload.  The Bank, however, opted to wait until Henry saw the neurologist before it considered whether it would continue to hold her position open.

In mid-September, the Bank received new documentation from Henry’s physician, indicating that she was “not incapacitated” and was actually able to perform the essential functions of her job, so long as she did “no heavy lifting.”  Accordingly, the Bank wrote to Henry telling her that it could not leave her position open indefinitely and that she was expected to return to work on September 25, the day after her neurologist exam.

“Well, maybe not September after all . . . .  Who knows when I’m coming back?”

Henry, however, arrived at work on September 25 with a note from the neurologist indicating that she was suffering from extreme pain, and that she was unable to work.  It also indicated that she needed surgery within the next few weeks and that she had to remain out of work “until further notice.”  Henry informed the Bank that her surgery was scheduled for October 17.

At that point, the Bank terminated Henry, stating that she had exhausted her twelve weeks of FMLA, and that it could not continue to hold open her position indefinitely.  Henry filed suit claiming FMLA retaliation as well as disability discrimination and retaliation under Massachusetts law.  The U.S. District Court for the District of Massachusetts granted summary judgment for the Bank in May 2011, dismissing Henry’s lawsuit without a trial on the merits.  Henry then appealed the trial court decision to the U.S. Court of Appeals for the First Circuit.

Strain, strain go away!

The First Circuit affirmed the trial court decision.  Among other findings, the appeals court concluded that the Bank had articulated a legitimate, non-discriminatory reason for terminating Henry:  the Bank had testified that the credit analyst department was critical to its business because that department performed the credit risk assessments for existing and potential borrowers.  Indeed, an independent auditing company had already recommended that the Bank maintain three credit analysts.  Further, a bi-annual review of the Bank’s credit functions was scheduled for the fall of 2008.  The Bank also expected an increase in the credit analysts’ workload as a result of market changes.  In addition, the Bank concluded that it could not hire and train a temporary worker because of the confidential nature of credit information and the particularized training involved, and no other Bank employee was available to fill Henry’s position temporarily.  Accordingly, Henry’s absence placed a significant strain on the credit department because her co-workers were responsible for the extra work.

Employers are not required to “wait and see.”

The court agreed that the Bank was allowed to terminate Henry because it no longer had a legal obligation to continue to hold her position open.  Henry had argued that, as a reasonable accommodation, the Bank should have been required to hold her position and give her more time to obtain a final medical diagnosis once the surgery was completed.  The court acknowledged that, in certain circumstances, an employer could be required to wait for an employee to receive a medical diagnosis as a reasonable accommodation.  However, the court concluded that, in this case, there was no such duty because throughout her leave, Henry had consistently provided medical documentation indicating her inability to work.  In addition, she had never given any relative time frame for her anticipated recovery or any indication of when, if ever, she would be able to return to work in her position.

The court pointed out that Henry had been out of work for three consecutive months and even though she had exhausted her FMLA leave, the Bank was willing to wait for her upcoming neurologist appointment to make a determination regarding her employment.  Significantly, although one of her doctor’s notes suggested that she was able return to work, Henry did not do so.  In fact, the day after her neurologist appointment, she provided further medical documentation stating that she would be out “until further notice,” even though the Bank had already informed her that it could not hold her position open indefinitely.  Therefore, the court concluded, it didn’t matter that Henry had a date certain for surgery, because the neurologist did not provide any estimate of a recovery or return date.

No undue burden analysis or interactive process required

Remarkably, the court also concluded that the Bank had no obligation to establish that Henry’s indefinite leave caused an undue hardship.  This is significant because undue hardship is frequently very difficult to establish.  And the court also held that the Bank did not have an obligation to engage in the informal interactive process.  The court concluded that these obligations were unnecessary:  Henry’s request for an indefinite leave was not a reasonable accommodation, per se, because it basically required the Bank to “wait and see,” with no end in sight, before making any determination regarding her position.  The case is Henry v. United Bank (1st Cir. 2012).

This decision demonstrates that employers need to establish comprehensive procedures for managing leaves of absences.  All requests for medical leave of absence, including extensions, should request supporting medical documentation that specifies the employee’s return date.  Vague reassurances of upcoming medical appointments may be insufficient.  If the employee cannot provide a date certain, then the employer may be able to terminate.  Of course, employers must also ensure that they apply their procedures consistently and the court’s approval of the Bank’s decision that it could not hold Henry’s position open may be limited to the specifics of this case, where the job duties were highly specialized and critical to the Bank’s operations.  Clearly, this is a highly fact-dependent decision.

Although United Bank was ultimately successful here, figuring out whether to provide a leave of absence as a reasonable accommodation can be very tricky!  You should consult with labor and employment counsel if you have any questions about providing a leave of absence or terminating a disabled employee.

Article By: Jasmin M. Rojas, Esq.
Reprinted from the September 2012 issue of the Massachusetts Employment Law Letter.

Jasmin Rojas is an Associate at the firm of Skoler, Abbott & Presser, P.C.  Jasmin can be reached at (413) 737-4753 or jrojas@skoler-abbott.com.