It happens all the time – an employee takes a job-protected leave of absence for a medical condition and, when her available leave expires, he or she asks for more time . . . and then more still . . . and more again. Employers are beginning to understand that a request to extend a medical leave of absence can constitute a request for a reasonable accommodation under the Americans with Disabilities Act (ADA), even if the employee has already used up all of her available job-protected medical leave under the Family and Medical Leave Act (FMLA) or under company policy. What employers (and their lawyers) continue to grapple with, however, is how long is too long?
Until recently, the safest course was to grant the requested leave as long as the employee identified a specific date by which he or she would be able to return to work, even if that date was weeks or months away. However, the U.S. 1st Circuit Court of Appeals (whose rulings apply to all Massachusetts employers) revisited the question in May, and its opinion is a game changer for employers.
Additional leave reasonable accommodation?
In 2001, AstraZeneca Pharmaceutical hired Taymari Delgado Echevarria to work as a pharmaceutical sales specialist. In December 2010, shortly after she was promoted to Hospital Specialist, Delgado sought treatment for depression and anxiety. The following year, her doctors discovered a small tumor in her brain and recommended that she take a leave of absence from work.
Delgado applied for and received short-term disability benefits under AstraZeneca’s short-term disability policy for about three months. AstraZeneca then terminated her benefits for inadequate documentation. Five days later, the company sent her a letter notifying her that it would presume she had resigned her position if she didn’t return to work by March 22, 2012.
When Delgado failed to return by that date, AstraZeneca pressured her to resign and offered her a severance package. A week later, however, the company received additional documentation from Delgado’s doctor, and based on the information in the correspondence, it extended her short-term disability benefits and her leave through April 2012.
In early May 2012, AstraZeneca sent Delgado another letter, this time requiring her to return to work by May 17 or be deemed to have resigned. Once again, she failed to return, and her doctor submitted more paperwork requesting that she be granted 12 more months of medical leave. In response, AstraZeneca informed Delgado that her position would be eliminated in July under a company reorganization. Once again, it offered her severance.
Delgado rejected the offer and filed suit in federal court for alleged violations of the ADA and Puerto Rico law. The district court dismissed her case without a trial, finding that AstraZeneca hadn’t violated the ADA by denying her request for an additional year of leave. She then appealed her case to the 1st Circuit.
Accommodations must be effective and facially reasonable
On appeal, the 1st Circuit affirmed the decision of the trial court in favor of AstraZeneca. Delgado claimed that AstraZeneca violated the ADA when it failed to grant her request for additional job-protected leave as a reasonable accommodation for her disability. However, the court explained that to be successful in her failure-to-accommodate claim, she first had to satisfy a two-part threshold test by showing that:
- A year of additional leave would be effective, e., that it would allow her to return to work and perform the essential functions of her job.
- A year of additional leave was “facially reasonable.”
According to the court, she couldn’t meet that threshold burden.
First, Delgado couldn’t point to any evidence to support her argument that a year of additional leave would have enabled her to return to work. The form her doctor provided to AstraZeneca only vaguely mentioned the limitations her disability created and was not supported by medical documentation. More important, Delgado’s request wasn’t “facially reasonable.”
Quoting the newest U.S. Supreme Court Justice, Neil Gorsuch, the 1st Circuit reasoned that it “perhaps goes without saying that an employee who is not capable of working for so long is not an employee capable of performing a job’s essential functions – and that requiring an employer to keep a job open for so long does not qualify as a reasonable accommodation. After all, reasonable accommodations . . . are all about enabling employees to work, not to not work.” For that reason, the court explained, a lengthy period of leave cannot be considered reasonable on its face unless the employee can demonstrate that such a long absence from work is “practicable,” or feasible. Indeed, the court found that a lengthy period of leave places “obvious burdens” on the employer.
Delgado made no such showing. And without proof that a reasonable accommodation for her disability existed, the court never reached the questions of whether the requested period of leave would have been unduly burdensome or whether AstraZeneca failed to engage in the interactive process.
Two reasons for a decision do not equal retaliation
Delgado also claimed that AstraZeneca had retaliated against her for seeking an accommodation when it terminated her employment. Her request for an accommodation was clearly protected conduct, and the company’s decision to terminate her was an adverse employment action. But to be successful on her retaliation claim, Delgado had to show that AstraZeneca’s reasons for separating her from employment were a pretext, or smokescreens, for what Delgado believed was its real reason: retaliation.
The appeals court rejected Delgado’s argument that AstraZeneca’s reasons for terminating her employment were a pretext. She claimed that AstraZeneca giving more than one reason for terminating her – job abandonment and a corporate restructuring –was evidence of pretext. But the court disagreed, concluding that the employer having two reasons for her termination wasn’t enough evidence to send her case to trial.
According to the 1st Circuit, multiple reasons for a decision are evidence of pretext only if they are so inconsistent to create an inference that they aren’t true. AstraZeneca’s reasons for its decision – that Delgado had abandoned her job and that it was undergoing a company reorganization – were not inconsistent at all.
Next, the court looked at whether AstraZeneca had deviated from its standard short-term disability policy in a way that was both significant and inadequately explained, which can also create a question about whether the company’s reasons were pretextual. However, the appeals court concluded that AstraZeneca’s alleged deviation from its short-term disability policy wasn’t sufficiently clear to create a question of fact.
And, finally, the court reaffirmed that even though AstraZeneca’s decision came shortly after Delgado’s request for leave, the timing alone wasn’t sufficient to create a question for the jury on the issue of pretext because the company had offered legitimate nonretaliatory reasons for making its decision and there was no evidence that those reasons weren’t true.
This ruling is important for employers on many levels. To recap, the 1st Circuit decided that:
- An employee has to prove that a requested accommodation was both effective and reasonable before a court will even consider the employer’s reasons for denying it.
- To prove that a requested accommodation would have been effective, an employee must prove that it would have allowed her to perform the essential functions of her job – something that may be challenging when the requested accommodation is an extended absence.
- To prove that a requested accommodation was reasonable on its face, an employee has to prove that it would have been feasible for the employer to provide under all of the facts and circumstances, including the “obvious burdens” associated with an extended period of leave.
- An employer can offer more than one reason for terminating an employee without fear of setting itself up for a claim of pretext as long as those reasons aren’t obviously inconsistent.
- An employer can interpret and apply its own policies and procedures when they are vague or ambiguous.
- And, finally, a short gap in time between protected activity and an adverse employment action isn’t enough, by itself, to create a question of fact sufficient to send a case to trial.
But don’t get too excited
This case will certainly help you defend your company in cases involving accommodations for disabled employees, but it’s always better to avoid having to defend against a lawsuit in the first place by engaging in the interactive process, evaluating requested accommodations on a case-by-case basis, and applying personnel policies and procedures as written. Indeed, the 1st Circuit was careful to warn that its decision was “a narrow one” based on Delgado’s specific circumstances. Accordingly, you should consider the unique facts and circumstances of any accommodation request – including any burdens on your business – and consult experienced labor and employment counsel when you’re in doubt about the appropriate course of action.