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Working at home and additional leave time unreasonable

published in Oklahoma Employment Law Letter | July 1, 2012

By Charles S. Plumb

Frequently, when employees return from medical leave, employers may be facing a combination of questions. A returning employee could ask for a temporary job reassignment or even to work at home for a time. That is what Mueller Supply Company faced when Doyle “Rocky” Brown exhausted his medical leave.

Exhaustion of leave, accommodation request, and discharge

Mueller Supply manufactures metal building products. Brown was a warehouse supervisor and worked under Brent McGill. As a warehouse supervisor, he was responsible for all shipping and receiving. In April 2005, Brown told McGill he needed to have surgery for cancer. Brown completed all necessary Family and Medical Leave Act (FMLA) paperwork provided to him by Mueller Supply, including medical certification for the leave. In May, he returned to work after his surgery.

In January 2006, Mueller Supply approved intermittent FMLA leave for Brown for a variety of recurring health-related absences. One year later ? in January 2007 ? he gave Mueller Supply a doctor’s note advising he was being treated for colon cancer, bronchitis, and fatigue and would be unable to return to work until mid-February. In February, Mueller Supply told Brown that he had exhausted his 12 weeks of FMLA leave. When he provided another doctor’s note explaining he needed three more weeks of leave and would not be able to return to work until March 1, Mueller Supply terminated Brown for poor work performance and excessive absences. When he offered to come to work against his doctor’s orders, Mueller Supply refused.

Unreasonable option

Brown sued Mueller Supply for discriminating against him under the Americans with Disabilities Act (ADA), among other things. Specifically, he claimed Mueller Supply failed to fulfill its obligation to make reasonable accommodations by not allowing him to work from home, providing him with additional leave, or temporarily reassigning him. After looking over the circumstances, the U.S. 10th Circuit Court of Appeals (whose decisions apply to all Oklahoma employers) concluded that the requests were not reasonable options to impose on the employer.

Generally, physical attendance at work is an essential function of any job. Brown argued he could use technology to perform many of his warehouse supervisor responsibilities. However, he admitted that while working at home, he would not be able to perform quarterly or random inventory counts. Nor could he interact with Mueller Supply customers who came to the warehouse. As warehouse supervisor, Brown could not effectively oversee whether his employees completed tasks assigned to them.

The court similarly rejected Brown’s contention that Mueller Supply was obligated to provide him with additional leave time. While the ADA requires an employer to consider an employee’s requests for additional leave time as a possible accommodation, there must be some level of certainty about the duration of the additional leave. Also, an employee who asks for additional leave as an accommodation must be able to demonstrate a good prognosis for recovery. If it is uncertain whether or when the employee will be able to return to work, additional time off for a leave of absence is not a reasonable accommodation. In this case, the medical records and history submitted by Brown to Mueller Supply made his ability to return to work and the timing of his anticipated return very uncertain.

Finally, the court rejected Brown’s argument that Mueller Supply should have considered reassignment as an accommodation. While reassignment may be a form of reasonable accommodation, to succeed with that argument, Brown was required to identify a specific job vacancy for which he was qualified. Valdez v. McGill, 26 AD Cases (BNA) 16 (10th Cir., 2012).

Handling an accommodation request after medical leave

Like all considerations of reasonable accommodation, an employee returning from medical leave must provide you with medical information that supports his claim that he cannot perform 100 percent of his regular duties. If he is requesting extended leave or working from home, do not simply dismiss the request out of hand. Require medical information confirming the need for the requested accommodation, and be prepared to explain why the accommodation is not an option if you refuse the request.