Medical leave is a perennially fraught topic between employers and those who work for them, one courts at all levels are regularly asked to adjudicate. Once an employee requests an accommodation for a health problem or disability, his or her employer has a duty to engage in an “interactive process” to determine whether the worker can indeed be accommodated. With that in mind, employers should take note of an April decision from the U.S. 6th Circuit Court of Appeals, King v. Steward Trumbull Memorial Hospital, 30 F.4th 551 (6th Cir. 2022), which provides that this duty includes fully considering a request for accommodation in the form of medical leave prior to terminating an employee with a disability.
The Facts of the Case
This accommodation dispute involved a registered nurse named Jeanne King, who worked at Steward Trumbull Memorial Hospital in Warren, Ohio, from 2007 until her termination in June 2017. King, described as “a competently skilled emergency nurse” by her supervisor, was diagnosed with asthma as a young adult, but her symptoms began to worsen around 2013. She would call the hospital periodically when in the throes of a severe flare-up, several times speaking directly with her supervisor and specifically noting that she needed to miss work because of her “disabling” asthma.
The hospital permitted employees to seek a medical leave of absence to handle personal illnesses and disabilities under the Family Medical Leave Act (FMLA) or under a collective bargaining agreement (non-FMLA leave). The hospital used a third-party administrator (TPA) to manage leave requests. If an employee did not qualify under FMLA, the administrator would consider the possibility of non-FMLA leave. Under the hospital’s attendance policy, it could discipline employees for “excessive absenteeism” after three “different occasions” in a year.
While King’s leave request was pending, the hospital terminated her employment for 'failure to apply for timely leave of absence.'”
After King’s asthma worsened, she missed work a number of times, some of which were covered by either FMLA or non-FMLA leave. Over several years, King’s supervisor gave her written and verbal warnings about her attendance—yet occasionally withdrew disciplinary action after the hospital excused her absences under its medical leave policy.
In April 2017, King experienced a particularly severe asthma flare-up, calling in sick for 14 shifts over five weeks. During that time, she regularly saw her physician and worked with him to find new medications and treatments. Her doctor informed her that she would not be able to return to work until a more effective treatment was available. (She had not initially requested medical leave from the TPA because she expected her condition to improve.)
When King’s symptoms worsened further, she requested leave but did not specify how much time off she needed. The TPA told her she was ineligible to apply for leave because she had not worked the requisite hours and advised her to contact the hospital’s human resources department. King told the HR representative that the TPA had miscalculated her hours; the rep indicated that the hospital had recently changed management and that HR would need to manually update her hours to the accurate number. King then notified her supervisor that she was trying to apply for medical leave. Her supervisor said he would investigate her application and get back to her.
On June 2, 2017, while King’s leave request was pending, the hospital terminated her employment for “failure to apply for timely leave of absence.” At the time, King had not heard back from HR about the manual update of her hours worked. Shortly after, she learned that the TPA had indeed updated them—but that she was still ineligible for FMLA leave. The TPA did retroactively approve certain periods of non-FMLA leave for her, but the hospital’s decision to terminate her remained unchanged.
King filed suit, alleging, among other things, that the hospital failed to afford her reasonable accommodation for her disability under Ohio law, which is analyzed in the same manner as claims under the Americans with Disabilities Act (ADA). Following the trial court’s granting of summary judgment in favor of the hospital, King appealed to the 6th Circuit, claiming the trial court got it wrong and that her failure-to-accommodate claim ought to be considered by a jury.
The 6th Circuit’s Findings
To succeed with this claim, King needed to show that “(1) she was disabled within the meaning of the [ADA]; (2) she was otherwise qualified for her position, with or without reasonable accommodation; (3) the [hospital] knew or had reason to know about her disability; (4) she requested an accommodation; and (5) the [hospital] failed to provide the necessary accommodation.” King, 30 F.4th at 560.
The parties agreed that King’s asthma was a disability. The hospital, however, argued that issues related to her asthma, which led to extended absences, made her unqualified for the position because “an essential element of her job as a nurse . . . required regular, in-person attendance.” The 6th Circuit disagreed, concluding that leave as a reasonable accommodation is consistent with the statutory purpose of the ADA “because it enables the employee to return to work following the period of leave requested as an accommodation—i.e., it enables the employee to perform the essential function of attendance.”
At the very least, an employee’s request for leave triggers the employer’s duty to engage in an 'interactive process.'"
To determine whether a leave request is reasonable, the courts consider the following factors: “(1) the amount of leave sought; (2) whether the requested leave generally complies with the employer’s leave policies; and (3) the nature of the employee’s prognosis, treatment and likelihood of recovery.” King, 30 F.4th at 562. To this end, the 6th Circuit concluded that non-FMLA leave would have been a reasonable accommodation for King’s asthma flare-ups considering that she had not sought an unreasonable amount of leave according to the hospital’s own policies. The court also noted that the hospital ultimately determined that King qualified for non-FMLA leave between May 14 and June 1 (the day before she was terminated).
Additionally, the Circuit Court found that a jury could conclude:
• that the hospital, which was aware that King was missing work because of her asthma, also knew that her asthma was so severe that it rose to the level of a disability;
• that King made several calls to her supervisor and the TPA;
• that King requested an accommodation, and the hospital prematurely halted the interactive process while her leave request was outstanding;
• that the hospital, by retroactively approving her request for non-FMLA leave after terminating her, denied her the reasonable accommodation she had requested;
• and that the hospital would not have suffered undue hardship by granting King retroactive medical leave.
Based on the foregoing, the 6th Circuit reversed the trial court’s granting of summary judgment in favor of the hospital and reinstated King’s failure-to-accommodate claim.
The Key Takeaways
Employers must always remember that a request for leave may be considered a request for accommodation under the ADA and/or analogous state laws, and that in some instances an employer may be required to provide leave under those laws even if it would not be required to do so under the FMLA or the employer’s other leave policies.
For instance, a staffer who must miss work due to a serious health condition but who is not eligible for FMLA because of insufficient hours or tenure may be entitled to leave as a form of accommodation under applicable disability laws. At the very least, an employee’s request for leave triggers the employer’s duty to engage in an “interactive process” to determine whether it can reasonably accommodate the employee’s disability.
Larger employers with generally sound leave policies should also keep in mind that generous benefits programs and good-faith efforts to abide by the law will not necessarily protect them in the case of an inadvertent communication failure or “glitch in the system”; nor will an employer be protected from liability based on its use of a TPA to handle employee leave requests.
In the end, employers are always responsible for compliance; accordingly, they should make sure that they conduct multiple checks and fully document all steps in the interactive process before they pull the trigger on any termination involving an employee with a chronic health issue. When in doubt, it’s always best to check with an experienced employment attorney.
J. Lott Warren is a member of Butler Snow’s Labor & Employment practice group. He focuses his practice on employment litigation, financial services litigation, business-related litigation and general litigation and routinely represents employers, mortgage lenders, servicers and related financial institutions in various matters. He has been recognized in Best Lawyers: Ones to Watch in America in Commercial Litigation and Litigation – Banking & Finance by Best Lawyers® since 2021.
Kara E. Shea, Practice Group Leader of Butler Snow’s Labor & Employment practice group, has been practicing law for 25 years, helping clients to develop and implement employment policies, assisting clients in conducting internal audits and investigations and counseling clients on all aspects of employment law compliance. Shea also has extensive litigation experience, including acting as lead counsel in wage and hour class and collective actions, and briefing a discrimination case to the Supreme Court of the United States. She has been recognized in The Best Lawyers in America® for Employment Law – Management and Labor Law – Management since 2013 and 2015, respectively.
