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Indefinite time off is not a reasonable accommodation

October 9, 2017

By Anthony Kaylin, courtesy of SBAM Approved Partner ASE

When an employee takes an approved leave which is covered by the American’s with Disability Act (ADA), many times the employee will need additional time off.  The question generally becomes how long should leave be extended as a reasonable accommodation.  A trial court in the 6th Circuit Court of Appeals region, which covers Michigan, provides some guidance.

Hurst was hired by The Lilly Company (Lilly) in 1978.   His job required him to lift 60-70 pound LP tanks and place them onto fork lifts, and place 20-30 pound parts in engine spaces.  Hurst began having back issues in 2011.  His back “hurt all the time.” In early 2012 he saw a doctor and received injections in his back, which alleviated the pain for approximately one year. In 2013, plaintiff returned to the doctor and again received shots into his back, but the shots only alleviated his pain for approximately one month.

On June 27, 2014, Hurst submitted a request for Family Medical Leave Act (FMLA) leave from June 16, 2014 to September 30, 2014.   Hurst was to have a procedure to remove a herniation in his L4-L5 disk. Hurst wasn’t eligible for FMLA leave at his location, but Lilly treated him as if he could take it.  On a medical form for Hurst’s disability benefits, his doctor indicated that it would be five to six months before he could expect significant improvement in his medical condition after the surgery.  Lilly accommodated the leave. 
During the course of the leave his pain was not alleviated, and he required a second surgery during his time off.

Approximately one week after his approved leave had ended, and from which he had not yet returned, Hurst went to his doctor’s office and met a nurse practitioner requesting a note for additional time off to recover from the second surgery.  He was in great pain.  The nurse wrote the following note: “Off work until [follow-up] apt on 11/19/14 & will be determined at that time.” That day, Hurst provided the note to his supervisor. The next day, October 9, 2014, Lilly terminated Hurst.

Hurst then sued Lilly for disability discrimination under the ADA.  Hurst asserted that Lilly is liable for disability discrimination under the ADA because: it terminated his employment based on his disability and without providing him with a reasonable accommodation.

The court reasoned that Lilly gave him extended time off when Hurst first requested.  However, the nurse practitioner’s note did not support an end date for that time off, but merely indicated that Hurst needed more time off. There was no indication when Hurst could come back to work.  The court held that because plaintiff’s proposed accommodation is leave without a “certain or credibly proven end,” it was not a reasonable accommodation as a matter of law. 

Further, the nurse practitioner in a follow-up exam would only allow alternate sitting and standing and a lifting restriction of 20 pounds.  That accommodation was not reasonable given the duties of the job.  Therefore, Hurst was not qualified under the ADA as there was no accommodation that would be reasonable to help him do the essential functions of his job. 

Therefore, the court granted Lilly summary judgement.

The takeaway for HR is that indefinite time off is not considered a reasonable accommodation, even if it is for time off for another doctor’s appointment like in Hurst’s case.  When this situation arises, contact legal counsel before terminating the employee to make sure all bases are covered.

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