Labor & Employment Law Daily Failure to timely provide doctor’s note didn’t end ADA claim
Tuesday, October 30, 2018

Failure to timely provide doctor’s note didn’t end ADA claim

By Nicole D. Prysby, J.D.

Denying an employer’s motion for summary judgment against an employee’s ADA discrimination claim, a federal district court in Pennsylvania found triable issues on whether he could perform the essential functions of his job if accommodated with short-term medical leave, given that he had done so for years. There were also triable issues on whether the reason for his termination (failure to timely provide a medical certification) was pretextual, given misleading communications from his employer and his supervisor’s stated desire to have him terminated around the same time he requested medical leave (Gilbert v. Kimberly-Clark Pennsylvania, LLC, October 25, 2018, Slomsky, J.).

Medical leave for gout. The employee worked on a receiving dock, operating a forklift, unloading packages, and entering data into Kimberly-Clark’s computer system. In 2000, he was diagnosed with gout, for which he took several medical leaves of absence. His regular practice was to first exhaust his accrued vacation time before requesting leave, in the hope that the vacation time would be sufficient to recover. In February 2015, he experienced a gout flare-up that rendered him unable to work. He initially missed work by using his accrued vacation time. On March 30, he had exhausted his vacation but was still unable to return. On April 20, he asked about taking medical (disability) leave and contacted the employer’s benefits administrator to request leave. On April 30, the administrator informed him that he should return a physician statement by May 30. On May 4, the employer placed the employee on an unpaid leave of absence pending the approval of his leave request.

Attempts to provide medical documentation. On June 3, the employee hadn’t provided the physician statement and the employer sent a reminder. On June 10, he went to the emergency room to seek treatment for his gout and faxed a record of the visit to the employer. That record did not contain the information requested in the physician statement (e.g., when he could return to work). On June 25, the employee’s physician submitted the requested statement, discussing the employee’s symptoms as they existed on June 18. He did not reference or discuss the symptoms from March 30 to June 18.

Termination. Meanwhile, on June 19, the benefits administrator informed the employer that it denied the claim for lack of documentation. Despite the denial, on June 25, the employer informed the employee that he was on an unapproved leave since he had failed to provide any medical certification. The letter stated that he needed to provide the certification as soon as possible to ensure that his employment was not administratively ended and that failure to do so by July 6 would indicate that he had abandoned his job. On July 2, the employer again requested medical documentation, which the employee did not provide. The benefits administrator again denied the claim. It had received the June 25 physician statement but stated that no medical record indicated what limitations precluded the employee from working as of his date of disability, March 30, 2015. The employee was terminated on July 20 for violation of the company’s attendance policy.

ADA discrimination claim proceeds. Moving for summary judgment, the employer argued that the employee was not a qualified individual under the ADA, that it had a legitimate, nondiscriminatory reason for terminating him, and that he presented no evidence of pretext. Disagreeing, the court found that the employee possessed the prerequisites for his job and he presented evidence that he could have performed the essential functions had the employer allowed him the reasonable accommodation of a short-term medical leave of absence. While an indefinite and open-ended leave does not qualify as a reasonable accommodation, a short-term medical leave may qualify.

In addition, the employee’s long history with gout showed he could perform the essential functions of his job if given sufficient time out of work to recover from gout attacks. In 2013, the employer had accommodated the employee with short-term medical leave, after which he made a full return to work. Therefore, even though the employee remained out of work since February 2015, there was a genuine fact issue as to whether he might have returned to work following a short-term leave.

Also, while the failure to timely provide requested medical documentation was a legitimate reason for termination, the employee presented evidence that this was pretext. There was evidence that the employer knew on May 4 that he was on unapproved leave and purposefully delayed contacting him about it until June 5. And the language of the employer’s June 25 letter suggested that the benefits administrator had not yet denied the disability claim, which the employer knew to be false. Finally, the employee presented evidence that his supervisor and others spoke about their desire to have him terminated around the same time he was requesting medical leave. This was enough to go to trial on his ADA discrimination claim.

PHRA claims fail. On the other hand, the court agreed with the employer that the employee’s claims under the Pennsylvania Human Relations Act were time-barred because he did not request that the EEOC dual file his charge with the state until more 180 days after his termination, thus rendering his PHRA claim untimely.

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