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Managing employees with disabilities

 

Employers often struggle, and rightly so, with deciding how best to treat employees who have some physical or mental impairment, especially if the impairment seems to be affecting their work performance.  It is often very hard to balance the demands of expected workplace performance with an employee’s rights under the Americans with Disabilities Act (ADA) and Family and Medical Leave Act (FMLA).  A Court of Appeals decision last week provides a good review of some of the most important principals.

Factual Background

Charlene K. Wisbey worked as an Emergency Dispatcher for the City of Lincoln, Nebraska.   The position required her to receive calls for emergency service and dispatch emergency service units on a regular basis.  Prior to 2007, Wisbey’s performance evaluations were positive.

From January through February 2007, Wisbey used a significant amount of sick leave due to an upper respiratory infection. Because she had previously exhausted her allotted sick leave, the City issued her a written warning for taking excessive leave and recommended that she apply for intermittent leave under the FMLA.  On February 27, 2007, Wisbey applied for intermittent FMLA leave on the basis of depression and anxiety, claiming on the application that she had a serious health condition that rendered her “unable to perform the essential functions of her job.” Attached to the FMLA application was a medical certification from her physician, Dr. Pothuloori, stating that Wisbey suffered from recurring depression and anxiety which interfered with her sleep, energy level, motivation, and concentration.  Dr. Pothuloori’s certification also indicated that, although Wisbey was able to perform any one or more of the essential functions of her job,  she would need to take time off work intermittently over the next six months or longer.  

Because the medical certification from Dr. Pothuloori indicated that Wisbey’s concentration and motivation could be affected, the City scheduled an appointment for Wisbey with Dr. Eli Chesen, a psychiatrist, requesting that he perform a fitness-for-duty exam to determine whether Wisbey was qualified to continue her work as an emergency dispatcher.  After the examination, Dr. Chesen submitted a three-page report on his findings. The report stated that Wisbey suffered from chronic relapsing depression which intermittently interfered with her ability to function at full capacity at work, and that she was not “fit for duty as described in her job description, especially as related to tiredness, her ability to concentrate and her ongoing propensity to likely miss work.”

After receiving this report on March 28, 2007, the City expressed to Wisbey its concern that she could not perform her job, and placed Wisbey on administrative leave with pay. On April 3, 2007, the City met with Wisbey and provided her with a letter explaining that she was being terminated based on Dr. Chesen’s determination that she was unfit for duty. The letter also encouraged Wisbey to apply for long term disability benefits.  Wisbey filed suit instead. 

Legal Analysis

Wisbey first argued that she should not have been required to submit to a fitness-for-duty exam.  The ADA prohibits an employer from requiring a medical examination or inquiring into the disability status of an employee “unless such examination or inquiry is shown to be job-related and consistent with business necessity.”  The employer bears the burden to show the asserted business necessity is actually vital to the business and the request for a medical examination or inquiry is no broader or more intrusive than necessary.  At the same time, employers are permitted to use reasonable means to ascertain the cause of troubling behavior without exposing themselves to ADA claims, and fitness-for-duty exams are a reasonable means of making this determination.  Courts will readily find a business necessity if an employer can demonstrate a medical examination or inquiry is necessary to determine whether the employee can perform job-related duties when the employer can identify legitimate, non-discriminatory reasons to doubt the employee’s capacity to perform his or her duties (such as frequent absences), or whether an employee’s absence or request for an absence is due to legitimate medical reasons, especially where the employer has reason to suspect the employee is abusing its attendance policy.  The Court concluded that in light of Wisbey’s position as a dispatcher making life and death decisions supports, the City’s request for a fitness-for-duty exam was proper.

Wisbey next argued that she was not actually disabled, but that the City terminated her because it illegally “regarded: her as disabled.   As the Court noted, however, the prohibition against making decisions because an employer inappropriately “regards” an employee as disabled was established to combat “archaic attitudes, erroneous perceptions, and myths” working to the disadvantage of the disabled or perceived disabled  By contrast, if a restriction is based upon the recommendations of a physician, then it is not based upon myths or stereotypes about the disabled and does not establish a perception of disability.  Wisbey was terminated because she was not “fit for duty,” as reported by Dr. Chesen, and because she herself admitted in her FMLA application that she was suffering a serious health condition that rendered her unable to perform the essential functions of her job.  Accordingly,  there was no evidence of “regarded as” discrimination. 

In regard to her FMLA claim, Wisbey argued that  the fitness-for-duty exam was unwarranted because the City had previously accepted Dr. Pothuloori’s certification that she could perform any one of more of the essential functions of her job, although she would need to take time off work intermittently.  The Court found, however, that the FMLA does not provide an employee with a right to unscheduled and unpredictable, but cumulatively substantial, absences, or a right to take unscheduled leave at a moment’s notice for the rest of her career. On the contrary, such a situation implies that she is not qualified for a position where reliable attendance is a bona fide requirement.  Therefore, because Wisbey requested “intermittent leave” for “six months or longer” she did not have a right to FMLA leave.

Finally, the Court also rejected Wisbey’s argument that the City retaliated against her for taking FMLA leave because she could not establish a causal connection between her application for FMLA leave and her termination.  Rather, the City relied on the fitness-for-duty exam, and not Wisbey’s FMLA application, in its determination to terminate Wisbey’s employment. Generally, more than a temporal connection is required to present a genuine factual issue on retaliation,  and mere coincidence of timing can rarely be sufficient. 

Conclusion

In sum, then, employers struggling with these issues should keep the following points in mind:

  • Employers are permitted to use reasonable means to ascertain the cause of troubling behavior as long as they have a business reason to do so.  Courts will readily find a business necessity if an employer can demonstrate a medical examination or inquiry is necessary to determine whether the employee can perform job-related duties when the employer can identify legitimate, non-discriminatory reasons to doubt the employee’s capacity to perform his or her duties (such as frequent absences).
  • Courts will give great deference to recommendations made by outside professionals such as physicians.
  • Neither the FMLA nor the ADA provides an employee with a right to unscheduled and unpredictable, but cumulatively substantial, absences, or a right to take unscheduled leave at a moment’s notice for the rest of her career. On the contrary, such a situation implies that she is not qualified for a position where reliable attendance is a bona fide requirement.  And employers should make sure that their job descriptions specifically reference regular and reliable attendance as an essential requirement of the job.

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