According to the 5th Circuit, “Indefinite Leave is Not a Reasonable Accommodation”

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Published on Thursday, 03 May 2012 18:54

In a recent unpublished decision from the 5^th Circuit, the federal appellate court ruled that “Indefinite leave is not a reasonable accommodation.” Although this is not a citable decision, it is interesting to consider the court’s analysis in a case involving an employee claiming disability discrimination pursuant to the Americans with Disabilities Act (ADA). The case involves Andrew Amsel (“Amsel”) who worked for the Texas Water Development Board (TWDB) which is a state agency that provides water planning, financial and technical assistance, and data collection for the State of Texas. Amsel worked in various positions until his termination in August 2007. During his time working with TWDB, Amsel suffered from several medical conditions including ischemic heart disease, functional class IV angina, and a major digestive disorder. From 1997 to 2005, Amsel worked in TWDB’s information technology group as a Systems Analyst and was provided significant telecommuting accommodations that allowed him to work from home despite his health difficulties.

In August 2004, Amsel’s position was identified as one that faced outsourcing. As a result of the additional stress this caused, Amsel sought treatment from his primary care physician, who recommended that Amsel be provided a flexible work schedule that would allow him to continue telecommuting. Amsel then met with the company’s Human Resources Director about the doctor’s recommendation. TWDB determined that Amsel qualified to fill a back-up role to a TWDB employee in another department. However, his telecommuting was ultimately reduced from about two hours a day to one hour a day. In 2007, Amsel traveled to Thailand to receive cardiac stem-cell treatment. Upon Amsel’s return, he was unable to return to work but requested assignments he could perform from home or the ability to transition back to part-time. TWDB did not agree to this because Amsel was on sick leave and not expected to work. Amsel’s doctor then submitted another FMLA request indicating that Amsel was “unable to work at all” under his present condition. However, Amsel was ineligible for additional FMLA leave because he had not worked 1250 hours in the previous calendar year. TWDB thus awarded Amsel 720 hours from the sick-leave pool.

On June 6, 2007, Amsel  advised TWBD that he was still interested in working from home, but that he was still not released to work. Subsequently, Amsel’s position was eliminated due to budget cutbacks. Amsel then sued TWDB for disability discrimination pursuant to the Americans with Disabilities Act (ADA).

The district court granted TWDB’s motion for summary judgment and Amsel appealed. On appeal, the 5^th Circuit observed that “TWDB provided various accommodations hroughout his tenure, allowing Amsel to telecommute, providing a flexible work schedule, and creating a new position for him when stress exacerbated his conditions.” Further, as the court noted “the evidence undisputedly reflects that Amsel was completely unable to come to work at the time of the adverse employment action. Indeed, though his e-mails to TWDB expressed a desire to work from home, Amsel himself clearly indicated that he was not cleared to work. Amsel was only “qualified” if he could do the job with reasonable accommodation. Amsel, however, was not able to come to work and had not been in the office for months at the time of his discharge. Indefinite leave is not a reasonable accommodation. ‘Nothing in the text of the reasonable accommodation provision requires an employer to wait an indefinite period for an accommodation to achieve its intended effect.’”

The 5^th Circuit thus held that “that Amsel was not ‘qualified’ for his job at the time of his dismissal because he could not perform the job’s essential functions. Because Amsel was not a ‘qualified individual’ with a disability, he cannot establish a prima facie case of disability discrimination under the ADA or the Rehabilitation Act.” Read More.

9th Circuit Holds “Dependable Performance Requires Reliable and Dependable Attendance”

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Published on Tuesday, 24 April 2012 17:49

In a recent case that “tests the limits of an employer’s attendance policy” the 9^th Circuit considered the important question of whether attendance is an essential function of the job. The case involves Monika Samper, a neo-natal intensive care unit (“NICU”) nurse. Ms. Samper sought an accommodation from her employer, Providence St. Vincent (“Providence”), that would have allowed her an unspecified number of unplanned absences from her job. Providence is a medical facility in Portland, Oregon. Its NICU provides intensive care to premature infants. According to the NICU charge nurse, absences among NICU staff can jeopardize patient care because NICU nurses require special training. Samper was employed with Providence as a registered NICU nurse for eleven years. Since at least 2005, she has had fibromyalgia. Although Samper never worked full time, she regularly exceeded the number of unplanned absences permitted even for full-time employees. In July 2000, while on a leave of absence, Samper received a performance appraisal that referred to the seven unplanned absences over the year, exceeding the number permitted by the attendance policy. She was informed by the hospital that her attendance needed improvement.

In 2002, Samper was placed on work plans to manage her continued absences. After two more years of attendance problems, and another negative attendance review, Providence agreed to the following accommodation: Samper was allowed to call in when having a bad day, and move her shift to another day in the week. Providence did not require Samper to find a replacement for her shift. Although none of these leaves counted towards her unplanned attendance limit, and despite the ongoing accommodation, Samper was issued a corrective action notice for seven unplanned absences over the previous twelve-month period; some of the absences were several days in length. 

In 2008, Providence informed Samper that her part-time position would end, and she could either transfer to another position or face termination. Samper responded to this by allegedly making inappropriate comments in the presence of patients. Subsequently, Providence issued two corrective action notices. After additional unplanned absences, Samper was terminated due to her attendance problem. Samper filed suit alleging a violation of the Americans with Disabilities Act (ADA) due to a failure to accommodate her absences. The district court granted summary judgment in favor of Providence, concluding that because Samper was unable to adhere to Providence’s attendance policy, she was unqualified for her position as a matter of law. The court also held that the 2006 part-time work plan was a reasonable accommodation, and that the accommodation that Samper requested, specifically a waiver from the five unplanned absence limit, was  unreasonable.       

On appeal, the 9^th Circuit agreed, holding that “Samper’s performance is predicated on her attendance; reliable, dependable performance requires reliable and dependable attendance. An employer need not provide  accommodations that compromise performance quality.” Read More.

Determining if a Disability Exists Under the ADA is a Case by Case Determination

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Published on Monday, 23 January 2012 19:49

Employers must be aware that a determination of  whether an employee is disabled under the American with Disabilities Act (ADA) and the American with Disabilities Act Amendments Act of 2008(ADAAA),  is made on a case by case basis. A recent decision by the U.S. Court of Appeals,10^th Circuit, Allen v. Southcrest Hospital, No. 11-5016, 2011 U.S. App. LEXIS 25488 (10th Cir. Dec. 21, 2011), highlights this important point. In the Allen case, the court held that an employee diagnosed with migraine headaches was not disabled under the ADA/ADAAA, based on the particular facts before the court. The court’s decision demonstrates that that whether or not migraines (or any other medical condition) constitute a disability under the ADA/ADAAA, depends on the particular evidence presented. The employee in the Allen case worked as a medical assistant. She claimed that after she was transferred to work for a certain physician (who had a particularly hectic office schedule), she began experiencing migraine headaches, which varied in severity, and allegedly affected her ability to work and care for herself at home. Thus, in August 2009, after she was allegedly denied family and medical leave (to care for her daughter who was scheduled to give birth) and allegedly denied a reasonable accommodation for her migraines, the employee resigned and subsequently filed a lawsuit claiming violations of the ADA/ADAAA and the Family and Medical Leave Act (FMLA). The employer moved for summary judgment on the ADA/ADAAA claim, which the district court granted, and the employee appealed. On appeal, the 10^th Circuit held that the employee could not establish that her migraine headaches constituted a disability because she could not prove that the migraines substantially limited a major life activity under the ADA standards, and that the ADAAA standards would not be applied retroactively.  Thus, the court found for the employer. Read More. 

U.S. Supreme Court Holds “Ministerial Exception” Bars Employee’s ADA Claim

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Published on Thursday, 12 January 2012 04:47

In a recent case, the U.S. Supreme Court considered the question of whether the Establishment and Free Exercise Clauses of the First Amendment bar a wrongful termination action based on disability discrimination in violation of the Americans with Disabilities Act (ADA) against an employer that is a religious group, brought by an employee who is one of the group’s ministers. The case involves Hosanna-Tabor Evangelical Lutheran Church and School, which is a member congregation of the Lutheran Church–Missouri Synod. The Synod classifies its school teachers into two categories: “called” and “lay.” “Called” teachers are regarded as having been called to their vocation by God. To be eligible to be considered “called,” a teacher must complete certain academic requirements, including a course of theological study. Once called, a teacher receives the formal title “Minister of Religion, Commissioned.” “Lay” teachers, by con­trast, are not required to be trained by the Synod. Although lay and called teachers at Hosanna-Tabor usually perform the same duties, lay teachers are hired only when called teachers are unavailable. After respondent Cheryl Perich completed the required training, she became a commissioned minister. In addition to teaching secular subjects, Perich taught a religion class, led students in daily prayer, and took stu­dents to a weekly school-wide chapel service. Perich then developed narcolepsy, and thus suffered from sudden and deep sleeps from which she could not be roused. Because of her illness, Perich began the 2004–2005 school year on disability leave. In January 2005, she notified the school principal that she would be able to report to work in February. The principal responded that the school had already contracted with a lay teacher to fill Perich’s position for the remainder of the school year.

The congregation then voted to offer Perich a “peaceful release” from her call, in which the congregation would pay a portion of her health insurance premiums in exchange for her resigna­tion. Perich refused to resign and produced a note from her doctor stating that she could return to work on February 22. The school board urged Perich to reconsider, advising that they no longer had a position for her, but Perich still refused to resign. Subsequently, the congregation voted to rescind Perich’s call, and Hosanna-Tabor sent her a letter of termination. The EEOC brought suit against Hosanna-Tabor, alleging that Perich had been fired in retaliation for threatening to file an ADA lawsuit. Hosanna-Tabor invoked the “ministerial exception” arguing that the suit was barred by the First Amendment because the claims concerned the employment relation­ship between a religious institution and one of its ministers. The District Court agreed and granted summary judgment in Hosanna­ Tabor’s favor. The Sixth Circuit vacated and remanded. It recog­nized the existence of a ministerial exception rooted in the First Amendment, but concluded that Perich did not qualify as a “minister” under the exception. On appeal, the U.S. Supreme Court reversed, holding that Perich qualified as a minister and that “requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such ac­tion interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs.” Read More.