Inconsistent Communications Lead to Potential ADA Liability
Blanchet v. Charter Communications, LLC, Case No. 21-5073 (6th Cir. March 8, 2022) demonstrates what can occur when an employer and its third-party leave administrator are not on the same page. In Blanchet the Sixth Circuit U.S. Court of Appeals, whose jurisdiction includes Tennessee, reversed the Kentucky federal district court’s grant of summary judgment to an employer who fired its employee when she did not return to work after exhaustion of FMLA (Family and Medical Leave Act) and other approved leave. The Court described the record as follows:
Blanchet sold Charter Communications’ services door-to-door and excelled in her job. She became pregnant and received Charter’s standard maternity leave, short-term disability benefits and FMLA benefits. After giving birth, Blanchet developed postpartum depression. She requested an accommodation of additional leave under the FMLA which extended past her original return-to-work date.
Sedgwick was a third-party company that administered Charter’s disability leave. Charter instructed Blanchet to communicate only with Sedgwick regarding disability leave. Blanchet asked Sedgwick for four months additional leave after her FMLA leave was exhausted. Charter approved and Sedgwick verbally informed Blanchet. Sedgwick had a pattern of paperwork approvals being delayed until long after the verbal approval. Blanchet didn’t receive formal approval until two days after she her expected return to work date. The same day, Sedgwick received a letter from Blanchet’s doctor stating her return-to-work date was “unknown at this time” but that Charter should “expect April” as a timeframe for her to return to work.
The same day, Blanchet contacted Sedgwick because she was concerned that she had exhausted FMLA benefits and did not know how that would impact her employment. She asked Sedgwick for a 60-day leave accommodation to allow her to adjust to new medications. Sedgwick assured Blanchet “not to worry about [her] job” and that “they were [her] job protection.” When Blanchet followed up with Sedgwick a few weeks later, she was assured that “all was ok,” that it “knew of no reason this [application] would not be approved,” and that Blanchet should be “receiving [her] approval letter” for the additional leave.
Blanchet relied on Sedgwick’s verbal approval and continued treatment with her psychiatrist. Then, a month into the 60-day additional leave, Blanchet received a letter from Charter terminating her employment effective two months earlier. Ten days later, Blanchet received a letter approving her request for 60 days extended leave as an accommodation. The day after Blanchet received her termination letter, Charter’s human resources manager emailed Sedgwick that Blanchet’s request for extended leave was “ok with [Charter]”.
Blanchet sued Charter under the Americans with Disabilities Act (ADA). The Sixth Circuit reversed the district court’s grant of summary judgment to Charter. The Court of Appeals held:
Whether an employee is “otherwise qualified”, a requirement for an ADA prima facie case, is determined when she returns to work, not, as Charter argued, at the time of termination when, as here, Blanchet was not released to return to work. The Court noted that the purpose of additional leave as a reasonable accommodation is to allow the employee to recover in order to do their job.
The doctor’s letter giving no definite return to work date was not determinative as that is not a “per se” requirement in all cases. Charter’s and Sedgwick’s statements to Blanchet could support a jury finding that she was requesting a reasonable accommodation. “We decline to require that a plaintiff provide an exact return to work date when, as here, her employer leads her to believe she does not have to do so.”
Charter failed to engage in an “interactive process” as required by the ADA when an employee requests an accommodation of their condition. Blanchet believed that her leave was approved. No one at Charter or Sedgwick spoke to Blanchet, told her the request for extended leave was unreasonable, requested medical records, or inquired for further information about Blanchet’s condition.
Blanchet was a two-to-one decision, the third judge filing a dissent asserting that “[o]ur caselaw on this point is straightforward …. An employer does not have to keep an employee’s job open indefinitely.” Added leave is an “unreasonable accommodation where an employee has already received significant amounts of leave and has demonstrated ‘no clear prospects for recovery’”.
Additional medical leave is a recognized ADA accommodation. Employers must be aware that an employee’s exhaustion of FMLA or company-provided leave is not the end of the story. While it technically is the employee’s obligation to request a reasonable accommodation, to protect itself the employer should contact the employee to inquire whether and when the employee might be able to return to work, the length of any needed additional leave, and the prospects that such leave will enable the employee to perform their job. Where additional leave is requested, an interactive process must take place to determine the reasonableness of the request, the medical basis for the request and the prospects for recovery should additional leave be granted.
It is common for employers to use third-party companies to administer FMLA and other employee leaves. The Blanchet case illustrates how this arrangement, if not closely monitored by competent, experienced human resources personnel, can result in misinformation and confusion. Employers must remember that the potential liability for mistakes is theirs, not the third-party company’s.
If you’re an employer in Tennessee or elsewhere faced with an employee leave issue or claim of disability discrimination, obtain professional and thorough legal assistance by contacting the Law Offices of Cary Schwimmer at 901-753-5537 or visiting our website at schwimmerfirm.com. Our office address is 1661 International Place Drive, Suite 400, Memphis, TN 38120.