A recent case in the United States District Court in Tacoma, Casteel v. Charter Communications Inc., could have far-reaching impacts for many employers dealing with ailing employees. According to the federal district court, employers may be required to provide disabled employees with more than six months of unpaid leave as a reasonable accommodation under the Americans with Disabilities Act (ADA). Given the difficulties this kind of extended leave could pose for employers here in the Wenatchee Valley, it is important for employers to be familiar with the laws regarding employee leave.
The Family and Medical Leave Act (FMLA) and the Washington Family Leave Act (FLA) entitle eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons while receiving a continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave.
Generally, the FMLA and FLA apply only to employers with more than 50 employees. Employees who are eligible for FMLA leave are entitled to take up to 12 work weeks of leave in a 12-month period for:
the birth of a child and to care for the newborn child within one year of birth (under state law, an additional 12 weeks of leave may be available for pregnancy-related disabilities);
the placement of a child with the employee for adoption or foster care and to care for the newly placed child within one year of placement;
to care for the employee’s spouse, child, or parent who has a serious health condition;
a serious health condition that makes the employee unable to perform the essential functions of his or her job;
any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty;” or
Twenty-six work weeks of leave during a single 12-month period to care for a covered service member with a serious injury or illness if the eligible employee is the service member’s spouse, son, daughter, parent, or next of kin (military caregiver leave).
In addition to FMLA leave, an employee with a serious health condition or a disability may be entitled to additional leave beyond the 12-week FMLA leave as a reasonable accommodation for a disability.
Under state and federal law, a disability is defined as any medically cognizable or diagnosable condition that limits a major life activity. The definition of disability can include temporary impairments, such as a diagnosis of cancer.
The ADA and its Washington counterpart, the Washington Law Against Discrimination (WLAD), require employers to provide reasonable accommodations for disabled employees that would enable the employees to perform the essential functions of the job.
Unlike the FMLA, the ADA applies to employers with 15 or more employees and the WLAD applies to employers with eight or more employees. Because the ADA and WLAD apply to smaller employers, it is important for employers to remember that they may need to consider unpaid leave as a reasonable accommodation even if the employer would not otherwise be required to provide leave under the FMLA because of the employer’s size. Employers are not required to grant accommodations that place an undue hardship on the employer.
Unpaid leave has long been recognized as a potential reasonable accommodation available to employees under the disability statutes, but the law has been unclear as to how much unpaid leave an employer must allow an employee to take as a reasonable accommodation.
Courts have determined that employers are not required to provide employees with an indefinite amount of leave as a reasonable accommodation, but have been less than clear regarding employer’s requirements when faced with lengthy, but definite, requests for leave as an accommodation. For example, a federal appellate court in Kansas this year held that a six-month absence from work may not be a reasonable accommodation because the absence renders the employee incapable of performing the essential functions of the job. That holding seems to be in direct conflict with the recent decision in Casteel v. Charter Communications, Inc.
In Casteel, the plaintiff was diagnosed with a type of cancer that required extensive chemotherapy treatment. After exhausting all of her FMLA leave, the plaintiff requested additional unpaid leave in two 30-day increments to receive treatment. Charter granted each additional 30-day leave as a reasonable accommodation.
After the second 30-day leave expired, the plaintiff did not return to work and requested an additional 120-day leave of absence. Charter then terminated the plaintiff’s employment, citing her inability to work as the reason.
The plaintiff sued, accusing Charter of violating the ADA and the WLAD by failing to grant her additional leave request as a reasonable accommodation.
In denying Charter’s motion for summary judgment, the Court made clear that the incredible length of the requested leave alone could not serve as the basis for denying the leave as an accommodation because Charter failed to present evidence that Charter appropriately weighed the hardship that the employer would suffer by granting the extended leave.
Under the law, employers bear the burden of establishing that the requested leave poses an undue hardship that would render the accommodation unreasonable. Thus, the important takeaway for employers from the Casteel decision is that every request for a reasonable accommodation of extended leave must be analyzed independently to determine if the requested leave would impose an undue hardship on the employer before making the decision whether or not to provide the leave as an accommodation.
Erin McCool is an attorney with the Wenatchee office of Ogden Murphy Wallace, P.L.L.C., practicing in the areas of litigation, employment & labor law, and land use & water. She will be presenting on this and other new developments in employment law at the Annual Employment & Law Update on December 10, 2014 at the Wenatchee Convention Center. For more information, go to avhra.shrm.org/events.