The FMLA Blog

FMLA Leave Cited As Evidence that Employer Reasonably Accommodated Disabled Employee

The Eleventh Circuit in Santacrose v. CSX Transportation, No. 07-15532, 2008 U.S. App. LEXIS 16606 (11th Cir. Aug. 5, 2005)(unpublished) found that CSX had reasonably accommodated Santacrose's disability (bad back) by allowing him to maintain an eight-hour schedule and avoid overtime through a combination of sick leave and intermittent FMLA leave.  Santacorse wanted to avoid overtime through an eight-hour work restriction.  He did not want to use his company sick leave or FMLA leave to avoid overtime.  The court noted that a disabled employee is not entitled to the accommodation of their choice, but only a reasonable accommodation.  

Comment:   I am skeptical that an employer should receive ADA reasonable accommodation credit for obeying the law and granting FMLA leave to which an employee has a legal entitlement.  While it may be "reasonable," obeying the minimum dictates of the law does not require an employer to accommodate anything.  Compliance with all labor and employment laws should be "baked into the cake" in terms of employer standard operating procedures.          

My opinion notwithstanding, the case certainly supports the position that FMLA leave is a form of ADA reasonable accommodation for an employee whose disability requires time off from work. 

The Eleventh Circuit covers Florida, Alabama, and Georgia. 

Adult Children Are Covered by the FMLA Only if Disabled Within Meaning of ADA, Says Sixth Circuit

In Novak v. MetroHealth Med. Center, No. 06-3036, 2007 Fed. App. 0398P (6th Cir. Sept. 28, 2007), the Sixth Circuit found that an employee did not have the right to FMLA leave to care for an adult child where the child was not disabled within the meaning of the FMLA.  The adult child suffered from a temporary bout of postpartum depression. 

The FMLA authorizes leave to care for a child 18 years of age or older only if the child suffers from a serious health condition and is "incapable of self care because of a mental or psychological disability.  The FMLA applies defines "disability" by cross reference to regulations implementing the Americans with Disabilities Act (ADA).  Under EEOC Interpretative Guidance, temporary, non-chronic impairments of short duration, with little or no long term or permanent impact, are generally not disabilities. Relying on the EEOC Interpretative Guidance, the court found that the week or two that the adult child complained they needed help due to depression failed to establish that she had a disability.

In so holding, the court declined to express an opinion on the decision of the First Circuit in Navarro v. Pfizer Corp., 261 F.3d 90, 101 (1st Cir. 2001).  There, the Navarro court declared that the EEOC's interpretive guidance for the ADA did not apply to the FMLA.  The Sixth Circuit went on to find that its decision was consistent with Navarro because, based on the facts and not the EEOC interpretive guidance, the condition was of such short duration with no last effects that it did not rise to the level of a disability for purposes of the FMLA.

Comment:  The decision technically splits the circuits on the application of the EEOC ADA interpretive guidance excluding short term infirmities from the definition of a "disability" for purposes of FMLA leave to care for an adult child.  Novak finds that the interpretative guidance applies.  Navarro says that it does not.  Both cases, however, apply the factors cited in the EEOC interpretive guidance to determine if the adult child is disabled within the meaning of the FMLA. Given the split in the circuits, this is probably the best course of action to determine if an employee can take FMLA leave to care for an adult child.   

Recommending FMLA Leave Fails to Establish ADA "Regarded As" Disabled Claim, 10th Circuit Holds

In Berry v. T-Mobile USA, Inc., No. 05-1533, 2007 U.S. App. LEXIS 15258 (10th Cir. June 27, 2007), the Tenth Circuit rejected the employee's argument that her employer's knowledge of her MS and suggestion that she apply for, and subsequent approval of, FMLA leave is evidence that T-Mobile considered Berry to be disabled within the meaning of the Americans with Disabilities Act ("ADA"). 

The ADA defines "disability" as (1) a physical or mental impairment that substantially limits one or more of the major life activities of an individual; (2) a record of such impairment; or (3) being regarded as having such an impairment.  42 USC 12102(2).

EEOC regulations provide three ways an individual may be "regarded as having a disability": (1) the individual may have an impairment that is not substantially limiting but is perceived by the defendant as constituting a substantially limiting impairment; (2) the individual may have an impairment that is substantially limiting only because of the attitudes of others toward the impairment; and (3) the individual may have no impairment at all but is regarded by the defendant has having a substantially limiting impairment.  29 CFR 1630.2(l).

The Tenth Circuit reasoned that the leave provisions of the FMLA are "wholly distinct from the statutory definition of "disability."  While there may be some parallels between the ADA and FMLA, "applicable regulations explicitly state that ADA's 'disability' and the FMLA's 'serious health condition' are different concepts and must be analyzed separately.  Given the very different focus of the two statutory protections, Kavanah's suggestion to apply for FMLA leave and T-Mobile's approval of Berry's application does not demonstrate an issue of fact as to whether Berry was considered disabled under the ADA.  Consequently, Berry failed to present an case of discrimination under the ADA."

Comment:  The decision of the Tenth Circuit is in line with decisions issued by the Sixth, Eighth, and Eleventh Circuits on this point.  Without more, employer awareness of an employee's FMLA covered condition coupled with the suggestion that the employee apply for, and the employer approval of, FMLA leave does not constitute evidence that the employer "regarded" the employee as disabled within the meaning of the ADA.   

FMLA Leave Can Be Used to Demonstrate Employee is Not an ADA-Qualified Emlpoyee Because She Is Unable to Fulfull Position's Attendance Requirements

In Praigrod v. St. Mary's Medical Center, No. 3:05-cv-0166-JDT-WGH, 2007 U.S. Dist. LEXIS 4505 (S.D.Ind. Jan. 19, 2007), Sharon Praigrod filed suit alleging that she was terminated from her position as a night staff nurse after 14 years of employment in violation of the Americans with Disabilities Act (ADA). 

Praigrod suffered from irritable bowel syndrome.  Beginning in 2002 she was approved for intermittent FMLA leave for that condition.  This caused her to have uncontrollable diarrhea which could last from a few hours to several days.  Praigrod claimed that she could not work during these spells.

In 2003 Praigrod was issued disciplinary action for excessive absenteeism.  She claims that some of these absences were for leave to care for her gravely ill mother and for her own hospitalization.  Plaintiff was absent for more than a fourth of her scheduled work days in 2003.  She was absent for over half of her scheduled work days in 2004 before her termination. 

Praigrod took a leave of absence in April 2004 in order to have her gall bladder removed.  She ran out of FMLA leave in May 2004, but could not return until May 31, 2004.  Under St. Mary's leave of absence policy Plaintiff lost her position. She was given 30 days to apply for a transfer to other departments with openings. She applied for 23 nursing positions in the 30-day period. She received two interviews and no job offers.  Praigrod was terminated because she failed to secure a transfer position with the 30-day period.

Plaintiff filed suit alleging disability discrimination in violation of the ADA.  St. Mary's moved for summary judgment dismissing the suit.  St. Mary's argued that Plaintiff was not a "qualified individual" within the meaning of the ADA because she could not perform the essential functions of the nursing position.  Specifically, St. Mary's argued that regular attendance was an essential function of all nursing positions and that Plaintiff could not meet that attendance requirement.  Because she was unable to meet the essential functions of any of the positions she applied for Plaintiff does not, St. Mary's argued, qualify for the protections of the FMLA.  Plaintiff argued that some of the days used to determine that she could not meet the attendance requirement were for FMLA leave. 

The Court found that Plaintiff's FMLA absences can be used to show that she cannot fulfill her position's attendance requirement. Relying on the decision of the court in Payne v. Fairfax County, No. 1:05cv1446, 2006 WL 3196545 (E.D.Va. Nov. 1, 2006), the court found that the FMLA does not modify the requirements of the FMLA.  If an employee cannot perform the essential function of attendance, even if due to FMLA leave, then the employee is not a "qualified employee" within the meaning of the ADA. 

Comment:  This is the second decision establishing that the FMLA leave can be used as evidence to to establish that an employee is not entitled to the benefits and protections of the ADA where, as is often the case, attendance is an essential function of the employee's position.

Employer Did Not Regard Employee as Disabled by Suggesting that Employee Should Apply for FMLA Leave

An employer's suggestion that an employee apply for FMLA leave did not constitute evidence that the employer regarded the employee as being disabled within the meaning of the Americans with Disabilities Act (ADA). 

In Robinson v. Lockheed Martin Corp., No. 06-1704, 2007 U.S. App. LEXIS 331 (3d Cir. Jan. 8, 2007), the employee suffered several seizures.  He was out of work on approved disability leave for several weeks.  He was diagnosed as having a seizure disorder.  On returning to work Robinson's supervisor allegedly berated him for not "pulling his weight."  He performance rating indicated that he "needed improvement."  A  proposal to put him on a Performance Improvement Plan was made but never initiated.  At approximately the same time his supervisor suggested that Robinson apply for FMLA leave so that when he felt he couldn't come to work the absence could be charged the FMLA and not simply as an absence.  While he was in the process of submitted forms in support of FMLA leave Robinson was terminated with three others allegedly due to budgetary cutbacks.  Robinson sued alleging that his termination violated the ADA.  He did not assert an FMLA claim.

Robinson argued that he was "regarded as" having a disability by his employer. The ADA protects employees from discrimination who are "regarded as" having a disability, even if the employee, in fact, is not physically or mentally disabled.  As evidence, Robinson argued that Lockheed Martin believed he was disabled based on his supervisor's statement that Robinson should apply for FMLA leave.  The court disagreed.

The Third Circuit found that his supervisor's statement did not create a material issue of fact that Robinson was regarded as" significantly restricted in his ability to work.  The Court noted that "disability" under the ADA and "serious health condition" under the FMLA are different concepts that must be analyzed separately and that the leave provisions of the FMLA are distinct from the reasonable accommodation obligations under the ADA.  The Court also noted that Robinson returned to work after this initial four-week absence to the same job.  It also noted that Robinson was not placed on disability leave after his supervisor suggested that he apply for FMLA leave.   

Comment:  "Disability" within the meaning of the ADA Act and a "serious health condition" under the FMLA are not the same thing.  An employee that is unable to perform "an" essential function of a job is incapacitated within the meaning of the FMLA.  In contrast, to be "regarded as" having a disability, an employee must establish that the employer regarded the employee as suffering from an impairment within the meaning of the ADA Act, not just that the employer believed the employee to be somehow disabled.  The employer must regard the employee as having a physical or mental impairment that substantially limits major life activities as a result of the attitudes of others toward the impairment.  To be disabled from the major life activity of working, an employee must establish that his or her employer believed that the employee was limited in the ability to work in either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills, and abilities.  An employee does not establish that they are "regarded as" disabled from working because they they are precluded from performing their job. 

Of course, an FMLA "serious health condition" can also be "disability" within the meaning of the ADA/Rehabilitation Act.  Unlike the ADA Act, the FMLA does not protected employees who are "regarded as" having a serious health condition.

The Third Circuit covers New Jersey, Pennsylvania, and Delaware. 

FMLA Leave May Be Held Against Employee for Purposes of Qualification for ADA Reasonable Accommodation

To be able to maintain a suit for violation of the Americans with Disabilities Act (ADA) an employee must be a "qualified individual with a disability," which is defined as "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds."  In Payne v. Fairfax County, No. 1:05cv1446 (JCC), 2006 U.S. Dist. LEXIS 79725 (E.D.Va. Nov. 1, 2006), the court addressed whether an employee's leave taken pursuant to the FMLA may be held against the employee in determining whether the employee can perform the "essential functions" of his/her position within the meaning of the ADA.  The court held that it may. 

Plaintiff Stuart Payne was employed by the Defendant as an auto mechanic with the Fairfax County's Department of Vehicle Services.  Regular attendance at work was an essential function of Payne's position.  Payne was diagnosed with panic disorder, irritable bowel syndrome, and Epstein-Barr disease (which manifested itself with fatigue, weakness, a desire to sleep, and a locking of joints and limbs).  Payne requested that his condition be accommodated so that he could come in late, leave early, or miss a day so that he could keep his job.  He incurred frequent unscheduled intermittent absences.  He was repeatedly encouraged to minimize unscheduled absences, reminded of the County's attendance policy, and informed that if he exceeded his FMLA entitlement, his continued employment would be re-examined.  In August 2004, Payne requested sick leave for the period August 20 through September 30.  By this time he had already exhausted all of his available FMLA leave.  Fairfax County denied his request.  He thereafter retired form his position, and sued alleging violations of the FMLA and ADA. 

Payne sued Fairfax County alleging that he was constructively discharged as a result of the County's failure to reasonably accommodate his condition with liberal leave.  The County moved for summary judgment to dismiss the disability claim.  The County argued that Payne was not a "qualified individual with a disability" because he was unable to meet all of the essential functions of the position, namely the essential function of regular attendance.  As such, he was not entitled to the benefits and protections of the ADA.  The court agreed with the County.

In finding that FMLA leave may be used against an employee for purposes of determining whether the employee is an ADA-qualified employee, the court relied on 29 CFR 825.702.  In pertinent part, the regulation provides:

Nothing in the FMLA modifies or affects any Federal or State law prohibiting discrimination on the basis of ... disability.  FMLA's legislative history explains that FMLA is "not intended to modify or affect the ... Americans with Disabilities Act of 1990, or the regulations issued under the act.

The Court found that the DOL regulation "explicitly provides that the FMLA does not modify the ADA in any form.  This leads this Court to conclude that the statutes should be read independently, and if an employee cannot perform the essential function of attendance, even if due to FMLA leave, then the employee is still not a "qualified individual" within the meaning of the ADA.  To rule otherwise would be a judicial expansion of a Plaintiff's rights under the ADA and run directly contrary to" Section 825.702.  In support, the Court cited the decision of the Eighth Circuit in Spangler v. Federal Home Loan Bank of Des Moines, 278 F.3d 847, 852 (8th Cir. 2002), which held that the rights created by the FMLA are fundamentally different than those granted under the ADA.

Comment:  The court observed that issue has not been addressed by any Circuit court.  Note that it was undisputed that regular attendance was an essential function of the mechanic position in Payne. In ADA litigation, employers often assert that an essential function of the position is regular attendance. Employees, however, often dispute this assertion with evidence of liberal leave policies or practices.  Court have permitted temporary leave as a reasonable accommodation to an employee's disability.  Courts have generally frowned on overly liberal or extensive leave as an ADA reasonable accommodation, finding that such leave is an undue hardship to the employer that does not have to be accommodated.