Insight

Accommodation Reigns

A recent 6th Circuit Court decision could have big implications for employers who don’t follow reasonable-accommodation standards within disability and medical-leave law to the letter.

Blue lungs behind white clock
JW

J. Lott Warren and Kara E. Shea

September 7, 2022 09:33 AM

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.

Headline Image: ISTOCK/ CATINSYRUP, ISTOCK/EUGENESERGEEV, ISTOCK/ AVECTOR

Related Articles

IN PARTNERSHIP

How Long Can You Stay On Long-Term Disability?


by Michael Walter

Walter Law Group's team of long-term disability lawyers explains qualifications and coverage length for LTD.

Image of wheelchair accessible sign white on blue background

Getting Reorganized


by Sameer M. Alifarag and Seth H. Lieberman

Taking a second look at first day relief: an examination of recent bankruptcy trends through the lens of two important debtor motions and their impact on Chapter 11 bankruptcy proceedings.

Desk lamp with yellow background

COVID-19 and a Cloud of Dust


by John J. Song and Theodore M. Becker

Think ERISA health plan litigation was convoluted before? The pandemic—and future pathogens such as the monkeypox virus currently causing consternation among health authorities worldwide—will further upend the legal landscape as new regulations and statutes take effect.

Masked man with airborne germs

The Great Debate: Do You Arbitrate Commercial Disputes?


by David K. Taylor

In a civil case, is it wiser for a business to try to persuade the counterparty to agree from the outset to arbitration—or potentially to place its very solvency in the unpredictable hands of a judge and jury?

Hand moving multicolor blocks

Before the Claim Hits


by George L. Lankford

General liability insurance is rarely as simple as it might seem—and if you wait to examine your policy specifics until your business has been sued, it’s too late.

Ship sinking surrounded by money

IN PARTNERSHIP

Should I Hire a Lawyer After a Car Accident in Brentwood, TN?


by Harlene Labrum

Learn whether you should hire a lawyer after a car accident lawyer in Brentwood, TN. Contact Labrum Law Firm Personal Injury Lawyers for a free consultation.

Road caution sign in front of two wrecked cars

IN PARTNERSHIP

What Will a Chicago Car Accident Lawyer Actually Do for You?


by Adam Zayed

Personal injury lawyer Adam Zayed explains the important steps a Chicago car accident lawyer will take to ensure you receive the best legal representation.

Blurry image of fast moving traffic in big city

How Palworld Is Testing the Limits of Nintendo’s Legal Power


by Gregory Sirico

Many are calling the new game Palworld “Pokémon GO with guns,” noting the games striking similarities. Experts speculate how Nintendo could take legal action.

Animated figures with guns stand on top of creatures

How Much Is a Lawyer Consultation Fee?


by Best Lawyers

Best Lawyers breaks down the key differences between consultation and retainer fees when hiring an attorney, a crucial first step in the legal process.

Client consulting with lawyer wearing a suit

How To Find A Pro Bono Lawyer


by Best Lawyers

Best Lawyers dives into the vital role pro bono lawyers play in ensuring access to justice for all and the transformative impact they have on communities.

Hands joined around a table with phone, paper, pen and glasses

IN PARTNERSHIP

Knowing When to Hire a Car Accident Lawyer


by Muhammad Ramadan

Chicago personal injury lawyer Muhammad Ramadan offers advice on how to know when to hire a lawyer after you have been involved in a car accident.

White and grey cars crashed together with man standing between them

IN PARTNERSHIP

How to Protect Your Inheritance from Divorce in Ontario


by Usman Sadiq

One lawyer in Canada explains that, although division of assets does not always have to be evenly split, it should be fair, and inheritance is no exception.

Small grey house with red roof under large red umbrella on blue background

IN PARTNERSHIP

What Are the Stages of a Criminal Case in California?


by Nafiz M. Ahmed

Criminal cases in California must follow proper procedures in court. One lawyer outlines each stage of a criminal case to offer guidance to all involved.

Person in grey sweatshirt with hands behind back in handcuffs being arrested by cop

IN PARTNERSHIP

Five Considerations Choosing A Colorado Car Accident Lawyer


by Lisandra Matos

One lawyer explains five considerations you should take when choosing the right Colorado lawyer if you have been injured or are facing insurance claims after a car accident.

Red and white toy car colliding by magnifying glass on orange background

IN PARTNERSHIP

5 Benefits of Hiring an Attorney After a Car Accident in Texas


by Alton C. Todd

A personal injury lawyer can protect your rights and advocate for compensation. Read to learn about the benefits of hiring a lawyer after a Texas car accident.

White car crashed into dark purple car with heavy damage

IN PARTNERSHIP

5 Things To Do if You’re at Fault in a Car Accident in Oklahoma


by Chris Hammons

The moments following an accident can be confusing and frightening, even if no one is seriously injured. Here are five things to do when at fault after a car accident in Oklahoma.

Blue car and grey car crashed into each other with woman and man standing beside them talking

Trending Articles

How Palworld Is Testing the Limits of Nintendo’s Legal Power


by Gregory Sirico

Many are calling the new game Palworld “Pokémon GO with guns,” noting the games striking similarities. Experts speculate how Nintendo could take legal action.

Animated figures with guns stand on top of creatures

Announcing the 2023 The Best Lawyers in America Honorees


by Best Lawyers

Only the top 5.3% of all practicing lawyers in the U.S. were selected by their peers for inclusion in the 29th edition of The Best Lawyers in America®.

Gold strings and dots connecting to form US map

The U.S. Best Lawyers Voting Season Is Open


by Best Lawyers

The voting season for the 31st edition of The Best Lawyers in America® and the 5th edition of Best Lawyers: Ones to Watch® in America is officially underway, and we are offering some helpful advice to this year’s voters.

Golden figures of people standing on blue surface connected by white lines

Announcing the 2022 Best Lawyers® in the United States


by Best Lawyers

The results include an elite field of top lawyers listed in the 28th Edition of The Best Lawyers in America® and in the 2nd Edition of Best Lawyers: Ones to Watch in America for 2022.

2022 Best Lawyers Listings for United States

How To Find A Pro Bono Lawyer


by Best Lawyers

Best Lawyers dives into the vital role pro bono lawyers play in ensuring access to justice for all and the transformative impact they have on communities.

Hands joined around a table with phone, paper, pen and glasses

What the Courts Say About Recording in the Classroom


by Christina Henagen Peer and Peter Zawadski

Students and parents are increasingly asking to use audio devices to record what's being said in the classroom. But is it legal? A recent ruling offer gives the answer to a question confusing parents and administrators alike.

Is It Legal for Students to Record Teachers?

2021 Best Lawyers: The Global Issue


by Best Lawyers

The 2021 Global Issue features top legal talent from the most recent editions of Best Lawyers and Best Lawyers: Ones to Watch worldwide.

2021 Best Lawyers: The Global Issue

Best Lawyers: Ones to Watch in America for 2023


by Best Lawyers

The third edition of Best Lawyers: Ones to Watch in America™ highlights the legal talent of lawyers who have been in practice less than 10 years.

Three arrows made of lines and dots on blue background

The Upcycle Conundrum


by Karen Kreider Gaunt

Laudable or litigious? What you need to know about potential copyright and trademark infringement when repurposing products.

Repurposed Products and Copyright Infringemen

The Best Lawyers in Australia™ 2024 Launch


by Best Lawyers

Best Lawyers is excited to announce The Best Lawyers in Australia™ for 2023, including the top lawyers and law firms from Australia.

Australian Parliament beside water at sunset

Best Lawyers Voting Is Now Open


by Best Lawyers

Voting has begun in several countries across the globe, including the United States, the United Kingdom and Europe. Below we offer dates, details and answers to voting-related questions to assist with the voting process.

Hands holding smartphone with five stars above phone

Inflation Escalation


by Ashley S. Wagner

Inflation and rising costs are at the forefront of everyone’s mind as we enter 2023. The current volatile market makes it more important than ever to understand the rent escalation clauses in current and future commercial lease agreements.

Suited figure in front of rising market and inflated balloon

Wage and Overtime Laws for Truck Drivers


by Greg Mansell

For truck drivers nationwide, underpayment and overtime violations are just the beginning of a long list of problems. Below we explore the wages you are entitled to but may not be receiving.

Truck Driver Wage and Overtime Laws in the US

A Celebration of Excellence: The Best Lawyers in Canada 2024 Awards


by Best Lawyers

As we embark on the 18th edition of The Best Lawyers in Canada™, we are excited to highlight excellence and top legal talent across the country.

Abstract image of red and white Canada flag in triangles

Announcing The Best Lawyers in South Africa™ 2024


by Best Lawyers

Best Lawyers is excited to announce the landmark 15th edition of The Best Lawyers in South Africa™ for 2024, including the exclusive "Law Firm of the Year" awards.

Sky view of South Africa town and waterways

Presenting the 2024 Best Lawyers Family Law Legal Guide


by Best Lawyers

The 2024 Best Lawyers Family Law Legal Guide is now live and includes recognitions for all Best Lawyers family law awards. Read below and explore the legal guide.

Man entering home and hugging two children in doorway