Fourth Circuit Offers Useful Guidance on ADA/Rehab Act and FMLA
In a wide-ranging case, the U.S. Court of Appeals for the Fourth Circuit offered employers guidance on a number of interesting and significant issues under the Rehabilitation Act (and by extension the Americans with Disabilities Act, which is subject to the same analysis as the Rehab Act), as well as the Family and Medical Leave Act.
Background of the Case: In Hanna P. v. Coats, an employee who had previously informed her managers of her depression but did not request accommodations began experiencing attendance issues – extreme tardiness and numerous absences without communication. She and her managers developed a plan to address the attendance and communication issues. She failed to comply with the plan, however, and her managers then revised the plan without her input. Because she continued to experience attendance issues, her managers directed her to meet with an EAP counselor. She told them that her psychiatrist was recommending four weeks of leave, but they told her that she had to talk to the counselor before leave would be considered. Following her appointment, her leave request was approved but she withdrew it without explanation. After several more weeks with continued attendance issues, she renewed her request for leave, which was granted two weeks later. Just before she began the leave, she applied and was recommended for another position; however, the chief management officer rejected her application because of her recent performance issues. She then sued, alleging violations of the FMLA and Rehab Act.
The Court’s Ruling:
Failure to Accommodate. The employee alleged multiple violations of the Rehab Act, starting with a failure to provide reasonable accommodation for her disability. She claimed that the employer failed to engage in the interactive process when it unilaterally rescinded the attendance plan and directed her to consult with EAP. The Fourth Circuit disagreed, noting that the employer had, in fact, collaborated with the employee in developing the attendance plan, and only chose a different accommodation when that plan did not work. Moreover, the Fourth Circuit stated that, while employers must engage in the interactive process, it “has the ultimate discretion to choose between effective accommodations.” Moreover, the employer need not provide the accommodation the employee requests, as long as the accommodation is effective.
Medical Examination. The employee also argued that the referral to EAP was an improper medical exam under the Rehab Act. Even assuming that the EAP evaluation constitutes a medical exam, which is not necessarily the case, the Fourth Circuit found that the referral was both job-related and consistent with medical necessity, which is the standard for requiring medical exams under both the Rehab Act and the ADA. In this case, the employer had a reasonable belief that the employee’s ability to perform the essential functions of her job were impacted by her attendance and timely reporting issues. Of particular interest, the essential job function identified by the Fourth Circuit is “a regular and reliable level of attendance [which] is a necessary element of most jobs.”
Confidential Medical Information. The employee claimed that her supervisor’s inquiries about her attendance were designed to improperly solicit confidential medical information about her depression. The Fourth Circuit rejected this premise, noting that the supervisor was entitled to ask about her poor work behavior. As it has previously held, “[T]he ADA does not require an employer to simply ignore an employee’s blatant and persistent misconduct, even where that behavior is potentially tied to a medical condition.”
Discriminatory Failure to Hire. The Fourth Circuit found that the employee’s attendance issues were a legitimate reason for her non-selection. Although her attendance issues were caused by her medical condition, the employer was nonetheless able to take those performance issues into account in making its hiring decision. The Fourth Circuit also noted that its role is not to determine if the employer made the right decision, but only to determine if it made an illegal one, because it does not “sit as a kind of super-personnel department weighing the prudence of employment decisions.”
FMLA Interference. With regard to the FMLA claim, the employee fared better. The Fourth Circuit found that the employee’s disclosure of her depression along with her initial request for leave as recommended by her psychiatrist triggered the employer’s obligation to inquire as to whether she needed FMLA leave, which it failed to do. Moreover, the failure to notify her of her FMLA leave rights negatively impacted her use of leave.
Lessons for Employers. There are many instructive points that can be drawn from this case:
- Reasonable Accommodations – employers must engage in the interactive process, but ultimately employers have the ability to choose between effective accommodations. They need not select the best accommodation or the one desired by the employee, as long as the alternative is effective in enabling the employee to perform her essential job functions or to enjoy the privileges and benefits of employment.
- Medical Examinations – employers may request such examinations where they are job-related and consistent with business necessity. But see the Top Tip in this newsletter for cautionary guidance on how to make that determination. Of some comfort to employers, the Fourth Circuit confirmed that regular attendance is an essential function of most jobs.
- Medical Information – employers may ask questions about work performance, even where it knows or suspects that the performance issues are tied to a medical condition.
- Employment Actions – employers may make employment decisions based on an employee’s work performance, even where there are performance issues tied to a medical condition.
- FMLA – Managers should be particularly vigilant when employees mention medical issues, and should immediately inform HR of any such communications, even if the employee is not seeking an accommodation. Because a manager represents the company, the individual knowledge of the manager is deemed the company’s knowledge, even if the manager has not shared that information with anyone else. And if an employee with a known – or even suspected – medical condition is requesting leave, it is critical for the employer to meet its obligation to inquire whether FMLA leave is needed.