March 4, 2011
Lerch Early & Brewer's Legal Update
A fundamental requirement of federal and Maryland employment law is that an employer covered by the Family Medical Leave Act must provide reasonable accommodation to an employee who is a “qualified individual with a disability,” unless doing so would cause an undue hardship. One of the generally accepted/required forms of accommodation is granting a medical leave of absence so that the individual may obtain treatment for, or otherwise recuperate from, a disability or its effects to a point where the individual can return to work and perform the “essential functions” of his or her job. In addition, the employer must hold the position open for the duration of the leave.
At the same time, a disabled employee is considered to be a qualified disabled person only if he or she can perform the essential functions of the job, with or without reasonable accommodation. The courts generally recognize that an individual’s being on-the-job and available to work is an “essential function” of his or her position.
There is an apparent conflict, then, between the employer’s obligation to provide reasonable accommodation and the employee’s obligation to be on-the-job in order to perform the essential functions of his or her job. The federal courts generally have resolved this incompatibility by requiring employers to grant leave only for a reasonable, definite period of time, but not for an indefinite or open-ended length of time. It follows from this that if no other form of accommodation is available, an employee seeking a medical leave for an indefinite period of time is not a “qualified individual with a disability” and thus, is not entitled to the protections of the law.
Employers should note, however, that a doctor’s written statement that an employee is “advised to remain off work for an indefinite period” alone is not a sufficient basis for determining that the employee is seeking an indefinite leave. In Hawkins v. Rockville Printing & Graphics, a 2009 decision, the Maryland Court of Special Appeals considered the effect of such a statement. In that case, Hawkins, a 20+ year employee, had significant back problems. On August 24, 2006, he presented a doctor’s note recommending that he “remain out of work” until seen again by the doctor, four days later. On August 28, after further evaluation, his doctor placed him off work on what ultimately was claimed to be a temporary basis, mostly because of “the psychological stress” from which the doctor believed the employee was suffering. Unfortunately, the doctor’s written note only said that the doctor had seen Hawkins for “multiple medical and psychological problems” and that the employee was “advised to remain off work for an indefinite period.” In fact, the doctor had told the employee “to return to work when he felt he was reasonably able to do so,” and the employee claimed he was able to work within a few days. He was not, however, re-employed, and he filed suit.
In the peculiar circumstances of this case, the Court concluded: “Because Hawkins’ note did not specify a specific time period within which he could not work . . . , his ‘indefinite’ absence did not necessarily mean that . . . his absence would be for an extended period of time.” While this conclusion is perhaps illogical and confusing, it does raise the bar for Maryland employers regarding the investigation they must make when it appears that an employee is seeking an indefinite medical leave. Specifically, there must be sufficient communication with the employee’s physician, so that the employer can make a decision with a comfortable degree of certainty that the employee will not be able to return to work in the reasonably foreseeable future. If, then, the employee has been on leave for a considerable period of time and it can be established that he or she will not be able to return to work on a timely basis, the employer may consider filling the employee’s position.
Rick Vernon defends employers against all workplace claims made by individuals (applicants, employees and former employees), governmental agencies or other organizations. These encompass discrimination allegations, wage and hour disputes, EEOC complaints and sexual harassment claims, among others. For more information about extended medical leave, contact Rick at 301-907-2818 or rgvernon@lerchearly.com.
