Quirky Question # 187, Who Is Responsible for Determining Whether Jobs Are Available for an Employee on Disability Leave — the Employer or Employee?

Question:

One of our employees has been out of work on a disability. We’ve accommodated her by letting her take a prolonged leave of absence. During this time, she also has been availing herself of both our Short-Term Disability (STD) and Long-Term Disability (LTD) policies. She’s been out of work for a full year.

We’ve periodically conducted internal reviews to see whether we might have any jobs that would be appropriate for the employee on leave, but we just haven’t had any positions that fit both her qualifications and her limitations. Moreover, she has not contacted our company at all during her extended leave. She has not accessed our on-line position listings (we’d know because our system records all site visits), she has not come into the office where she could check bulletin boards with internal job listings, and she has not contacted either her former supervisor or our HR Department.

Given these facts, we terminated her employment at the end of the anniversary of her separation. She now claims that we have discriminated against her on the basis of her disability. She further contends that it was our company’s responsibility to determine whether there were any positions she could have performed during her leave of absence. Frankly, we think that was her responsibility. Who’s right?

Answer:

In our view, you and your company have the stronger, more compelling position. But, the case law on this topic is somewhat mixed. Moreover, our analysis would be affected by factors not revealed in your question. Let us explain further.

As a prefatory observation, we commend your company for allowing your employee to take leave as one way of accommodating her disability. Many courts have recognized that a leave of absence, during which time your employee can recuperate from a disability (often involving the process of regaining mental health), is a reasonable accommodation for someone who is unable to perform the essential functions of a job because of a physical or mental impairment. (As you likely know, if your company is covered by the Family and Medical Leave Act (FMLA), there are separate obligations to provide your employee either continuous or intermittent unpaid leave of up to 12 weeks annually. This analysis does not address the FMLA issues.)

Another approach your company has adopted is to assist your disabled employee to utilize both short- and long-term disability insurance. This approach undoubtedly reduced the financial hardship associated with the leave your employee found necessary by providing some level of compensation (often quite substantial) during the period she has been absent from work.

As you described, however, your employee has been off work for one year. Moreover, as you pointed out, your organization has checked periodically to determine whether there might be any positions available that your employee could perform, either with or without a reasonable accommodation. As you noted, you have not identified any such positions during your employee’s leave, given her limitations. (A separate observation we would make is that we hope you have documented your periodic reviews of the available positions. To the extent that jobs became available which you concluded your employee was not qualified to perform, again, documentation is beneficial. This will be particularly true if your employee initiates litigation.)

You also observed that your employee has done nothing on her own to explore employment opportunities. She did not check your on-line job postings. She did not come into the company to review any job postings on your bulletin boards. And, she did not initiate any contact with you or others (HR or her former supervisors) to ascertain whether there might be any positions for which she is qualified and which she could perform. This fact pattern certainly suggests that you have a former employee who simply was not interested in working. Your company cannot be expected to read your employee’s mind and somehow divine that despite her complete lack of effort to explore positions for which she was qualified, she actually was interested in returning to work.

Given her apparent indifference about returning to work, we understand why your organization concluded that, after a year-long absence, it was time to terminate her employment.  We do not believe that it is reasonable to impose upon the employer the obligation to initiate regular contact with the employee on leave to explore whether she wishes to return to work. Our conclusion is informed by the following factors.

First, as you described, your employee made no efforts to stay in touch with your company during her leave. We think you are entitled to draw a reasonable inference from that lack of contact; specifically, we think it’s reasonable to conclude that she does not want to work.

Second, especially in a company with a substantial workforce, the task of regularly checking whether an employee who is on leave has had a change in her disability could be daunting (particularly so if you have multiple employees on disability leave). Moreover, imposing an obligation on the employer to explore disabled employees’ status is a slippery slope. How often should the employer check? Once a year? Once every six months? Once a month? More frequently? As you know, both physical and mental health conditions can change or they can remain constant. It is far easier for a disabled employee to apprise her employer of meaningful changes in her condition than it would be for an employer to undertake this responsibility.

Third, not only would the employer have a potentially difficult time checking on the employee’s health status, this would only represent a portion of the calculus. The employer also would need to assess whether the employee was qualified for the position, not in terms of her health condition, but in terms of the requisite skill sets and educational background. It could potentially be onerous for an employer to have to compare the qualifications of the employee on leave every time a new position was created or every time a position became vacant due to another employee’s transfer, resignation, or retirement. Further, it would be equally (or even more) burdensome to attempt a comparison of the employee on leave with every other candidate, whether internal or external, every time a position became available. Again, it would be far easier for an employee on leave to monitor the employer’s job postings and make an independent decision regarding whether to explore that opportunity. In a fluid, dynamic workplace, where new positions are being created regularly, or where positions routinely become vacant due to the movement of employees from one job to another or one location to another, the burden on the employer to monitor and apprise the employee on leave of every available job opportunity could be quite substantial.

Fourth, employers need to have the flexibility to move quickly, particularly when a qualified applicant is seeking a position. Requiring employers to review all open positions against all employees on leave would be problematic. This is particularly true for a large employer, which may be employing thousands or tens of thousands employees in a particular location.

As we stated above, however, the case law this subject appears to be somewhat mixed. In Minnesota, courts have observed that an employee “can’t expect the employer to read his mind and know he secretly wanted a particular accommodation and sue the employer for not providing it.” Braziel v. Loram Maintenance of the Way, Inc., 943 F. Supp. 1083 (D. Minn. 1996)(summary judgment granted for employer when employee could not identify at his deposition how his position could be modified to enable employer to accommodate his disability).

The same principle applies here. Just as an employer cannot read the employee’s mind to determine what accommodation the employee seeks, an employer is likewise unable to discern that an employee on leave who has made no effort to stay in touch with the employer or explore alternative job opportunities that might become available, is actually interested in returning to work in some capacity. As the Eighth Circuit has observed, the ADA “is not an affirmative action statute.” Huber v. Wal-Mart Stores, Inc., 486 F.3d 480 (8th Cir. 2007).

Despite the observations above, the ADA does impose obligations that an employer ignores at its peril. We suggest the following practical suggestions, which are designed both to increase the likelihood that an employee will be able to return to work, and decrease the risks of litigation if such a return is not possible.

• Consider leave as an appropriate “reasonable accommodation.” Particularly when you are addressing mental health disabilities, time away from work may be a workable solution.

• If you have an employee who is about to take leave as a “reasonable accommodation,” provide that employee some guidance, both orally and in writing, that you expect the employee to check in periodically (monthly, bi-monthly, quarterly, or some other appropriate time period). Document the fact that the employee has checked in, or if not, that the employee failed to abide by your request.

• Advise the employee that the purpose of the periodic contact is two-fold: a) to ascertain whether the employee’s condition has improved or changed in any way; and b) to ascertain whether the employee is ready to return to work in any capacity.

• In the same oral and written guidance in which you request the employee to make periodic contact with the you, inform the employee that the burden will be on the employee, not you (the employer), to stay informed of the potential job opportunities that may become available. Let the employee know the ways she can stay current and informed on this issue (on-line postings, internal company websites, contact with her supervisor, contact with HR, etc.).

• Engage in the interactive process, both at the time the employee initially goes out on leave, and before any termination decision is made. The EEOC has high expectations regarding the obligation the ADA imposes on employers to engage in the interactive process with a qualified disabled employee.

• To the extent the employer does periodically check regarding whether certain jobs may have become available for which an employee on leave may be qualified, document your efforts. You will need this documentation to reconstruct this information if accusations are later made that your company somehow failed to consider your employee-on-leave for positions for which she was qualified.

By taking these practical steps, you will enhance the chances of helping your employee return to work and you will reduce the likelihood of litigation if the employee is unable to do so.

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