Labor & Employment Law Daily Forcing continuous leave when employee sought intermittent leave may violate both FMLA, ADA
Tuesday, July 24, 2018

Forcing continuous leave when employee sought intermittent leave may violate both FMLA, ADA

By Lorene D. Park, J.D.

Because an employee who had “flare ups” of gout, arthritis, and hypertension had taken intermittent leave in the prior two years without incident, and his most recent physician certification form was identical in identifying his restrictions and need for intermittent leave, an employer’s “about face” decision to force him to take continuous leave instead (which he could not afford) may have constituted FMLA interference and retaliation, as well as a failure to accommodate under the ADA, concluded a federal court in Alabama, denying in part the employer’s motion for summary judgment. The employee’s Title VII claims failed (Brown v. Gestamp of Alabama, July 18, 2018, Bowdre, K.).

The employee was a full-time materials handler at an automotive component production facility, and his duties included physically moving objects exceeding 10 pounds around and operating a forklift. In his first few years, the employee occasionally missed work due to “flare ups” of his gout, arthritis, and hypertension. Eventually, a coworker suggested he apply for FMLA leave so he would not be disciplined for missing work. Under the employer’s policy, employees must submit a certification form completed by a physician or healthcare provider, and must submit a new one each year they seek FMLA leave. Through his physician, the employee submitted FMLA certification forms in 2014, 2015, and 2016.

Certification forms. The physician offered virtually identical responses on the forms for each year, checking the same boxes and describing the same limitations. For example, when asked if “the employee is unable to perform any of his/her job functions due to the condition,” the physician checked “Yes” and explained the employee was unable to lift above 10 pounds, push, pull, manipulate, or bend. The employee’s conditions were described as including gout, arthritis, hypertension, joint pain, headaches, and dizziness. Another section asked if the employee would be “incapacitated for a single continuous period” and the physician checked “yes” but added an estimate that he would need to make a doctor’s appointment every three to four months, with “recovery after flare up in 1-2 weeks.”

Forced on continuous leave. The employer approved the employee’s intermittent FMLA leave in 2014 and 2015, and he used it sporadically. In 2016, however, he was denied recertification for intermittent leave and instead was placed on continuous FMLA leave. The employer said he could not work with the restrictions listed on his physician-provided FMLA certification and he could only return if his physician lifted the restrictions. The employee’s physician refused to remove the restrictions and did not clarify if the restrictions applied only during flare ups.

The HR rep who made the decision to deny intermittent leave didn’t know the employer had authorized intermittent leave in the prior two years but she testified it would not have changed her decision. Rather, she interpreted the 2016 form to state the employee could not perform his job at all because the doctor checked the box indicating the employee couldn’t lift more than 10 pounds. She also interpreted the form to be requesting both intermittent and continuous leave.

Couldn’t afford continuous leave, so he resigned. Although the employee had unused FMLA leave, he had no unused vacation time and the employer did not offer paid sick leave. He was told he could apply for disability benefits but he didn’t believe the benefits would meet his needs. Nor could he collect unemployment because he remained employed. He also did not believe he could draw funds from his retirement account. Thus, after slightly over a month on continuous leave and unable to remove the restrictions, the employee resigned his employment. He filed suit alleging violations of the FMLA and the ADA. In response, the employer moved for summary judgment.

ADA failure-to-accommodate claim proceeds. Denying the motion in part, the court found triable issues on whether the employee was a qualified individual under the ADA in 2016 because he worked in the same position in 2014 and 2015 with the same afflictions, but with intermittent leave and without issue or incident. The employer’s conclusion that the certification form suggested he would be unable to work for “unknown,” and “continuous” lengths of time could only mean the restrictions applied all the time failed to consider any of the appropriate context, said the court. For example, the physician stated that the employee’s “flare ups” only required his absence for certain, occasional intervals. With this in mind, the employer’s argument that allowing him to work with intermittent leave would have ignored his restrictions fell “far short” of establishing that he was not a “qualified employee.”

The court also found a triable issue on whether the employer unlawfully failed to accommodate the employee when it placed him on continuous leave because a jury could find that he did not request continuous leave and his doctor did not require continuous leave.

FMLA interference survives. Summary judgment was also denied on the FMLA interference claim. There was no dispute the employee was eligible so the question was whether the employer interfered with, restrained, or denied his rights by putting him on continuous instead of intermittent leave. In the court’s view a reasonable jury could conclude his FMLA certification form required only intermittent leave. Also, it was undisputed he requested intermittent and received intermittent leave in the past based on identical information in the FMLA forms. As such, a jury could find the employer interfered with his FMLA rights.

FMLA retaliation also proceeds. The court also found a triable issue on whether the employer retaliated by placing the employee on continuous FMLA leave after he requested intermittent leave. The “sudden about-face in 2016″ regarding his ability to work suggested the employer’s excuse of medical for continuous leave was pretext for retaliation. Also, while the employer asserted that the decisionmaker didn’t know about his prior intermittent leave, the fact that she didn’t bother to look at his history was also suspicious. Considering these facts, a jury could find that forcing the employee to take continuous leave was “comeuppance” for his third FMLA request.

No constructive discharge or hostile environment though. On the other hand, the employee’s Title VII constructive discharge and hostile work environment claims failed because he did not point to any evidence of a pattern of harassment based on protected status.

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