An employee’s 12 weeks of FMLA leave has exhausted, and over the past several weeks, he’s provided you a series of vague doctor’s notes typically containing nothing more than a one-liner extending his medical leave of absence until his next appointment.
Sound familiar? Makes you want to scream, right?
What if I told you that, instead of screaming, you could lawfully terminate this employee?
Interested? Read on.
Joyce served as an Economic Support Specialist for Milwaukee County, Wisconsin. She was on a team responsible for providing public assistance to county’s citizens. Her work included processing applications for benefits and answering phone calls. Not a terribly specialized position, and I’ll explain why that’s important below.
For several years, Joyce dealt with severe back pain and took FMLA leave from time to time as a result. In summer 2010, she began continuous FMLA leave, which exhausted on October 18. On that day, Joyce asked for additional leave, and the County provided her another three weeks to return to work, or November 8.
Joyce did not return on November 8. She did, however, submit two doctor’s notes supporting her need for even more leave. One was dated November 3 and stated simply: “medical leave of absence until 11/17/10.” The second was dated November 12 and said only “medical leave of absence until 12/17/10.”
The notes – or even Joyce herself – said noting more.
One week later, the County informed Joyce that it was contemplating terminating her employment, but before doing so, it invited her to a meeting to discuss her situation. It also invited her to bring “any documentation she wished to submit for consideration.” Joyce attended the meeting and again made clear she could not return to work.
The County terminated her employment about one week later. Joyce then found herself an attorney who apparently thinks vague doctor’s notes win ADA cases, and she sued.
The court dismissed Joyce’s case faster than it took her doctor to write a one-liner on that prescription pad doctor’s note. Finding that attendance was an essential function of Joyce’s job, the court reaffirmed the basic principle that Joyce’s employer could expect her to report to work. Therefore, she could not enjoy the protection of the ADA [or, in this case, the Rehab Act, which is the public sector equivalent of the ADA].
In dismissing her claims, the court summed it up this way:
[Joyce] did not offer any evidence regarding the effectiveness of her course of treatment or the medical likelihood of her recovery. The only medical documents she supplied were two terse doctor notes. One stated “medical leave of absence until 11/17/10” and the other stated “medical leave of absence until 12/17/10.” These notes did not explain whether she was even receiving treatment, let alone the likely effectiveness of the treatment. Whitaker v. Wisconsin Dept. of Health Services (pdf)
Insights for Employers
Sweet justice! What a golden nugget for all the HR and leave professionals and in-house counsel out there who feel helpless when dealing with an employee whose “ADA leave” seemingly has no end.
So, what’s the practical effect of this decision?
1. Employers can be more aggressive when they receive vague doctor’s notes. The best part of this court’s decision was not the smack down of this would-be disability discrimination claim (thought that was rather nice). Rather, the court laid out what it expected to find (at a minimum) in a doctor’s note supporting additional ADA leave:
- Whether the employee is receiving treatment
- The likely effectiveness of the treatment
- The medical likelihood that leave would enable her to return to work regularly
This is useful guidance, and it will help us address critical questions when we’re trying to determine whether our employee will be able to return to work anytime soon. But we need not stop here. In EEOC’s resource document on leave as a reasonable accommodation, the agency makes clear that employers may specifically ask the health care provider to respond to questions drafted by the employer and designed to enable the employer to understand: 1) the need for leave; 2) the amount and type of leave required; and 3) whether reasonable accommodations other than (or in addition to) leave may be effective for the employee (perhaps resulting in the need for less leave).
If EEOC is inviting us to do this, and we now have an insightful court decision outlining additional information you can insist upon, why aren’t you implementing this in your own accommodation process? Call your employment counsel today [ahem, I know a guy…] to prepare correspondence and forms to use on these occasions.
2. We still have to communicate with our employees. Let’s be clear: this employer prevailed here not because the employee turned in two pathetic doctor’s notes. It ultimately won because it gave Joyce yet another chance to explain herself after she submitted the doctor’s notes. Engaging employees like Joyce in the ADA’s Interactive Process is Essential. Communicate during FMLA leave…after FMLA leave ends…and at all times before and in between! When a client calls me for guidance on whether they can deny leave or terminate an employee after he or she has asked for the second or third extension of leave, I ask the employer about all the communications they have had with the employee regarding issues such as: a) the employee’s ability to perform his/her job; b) whether the employee likely will be able to return to work (and when); c) whether the requested leave will allow the employee to return to work immediately after the leave ends or very soon thereafter; d) whether there are other accommodations to help the employee return to work in a timely manner; and e) whether the employer has received any feedback from the employee’s physician about the above issues. The EEOC’s decision to initiate litigation against an employer often hinges on whether the employer is to blame for the breakdown in the interactive process. To minimize your exposure to liability, keep communicating with your employees! The interactive process is essential.
3. When employees submit crappy doctor’s notes, you need not consider undue hardship. Normally, I would encourage you also to assess the hardship that the employee’s absence has on your operations before you hit the termination button. However, this court case is a reminder that, when an employee submits vague, meaningless doctor’s notes that don’t provide the key information above, the employee is not a “qualified” individual protected by the ADA.
If you had to assess the hardship Joyce’s extended absence is creating, it might be difficult, since she holds a clerical position, the duties of which could be filled by a temp or assumed by other employees. Yet, we don’t even get to this undue hardship analysis because the vague doctor’s notes save us.
Jeff Nowak is a Partner at the law firm of Franczek Radelet and serves as co-chair of the firm’s Labor and Employment Practice and was named by Law Bulletin Publishing as one of Illinois’ top “40 Attorneys Under 40” to watch in 2012. Jeff is widely recognized as one of the nation’s foremost FMLA and ADA experts, regularly counseling clients on compliance with FMLA and ADA regulations, conducting FMLA/ADA audits and training, and successfully litigating FMLA and ADA lawsuits. Jeff is the author of the firm’s highly regarded FMLA Insights blog, which has been selected for four consecutive years by the ABA Journal as one of the top 100 legal blogs (2011-2014) and was also voted the No. 2 Labor and Employment blog by LexisNexis.
The above article first appeared in FMLA Insights and is reprinted with Jeff’s permission.