How much extra leave is reasonable for an employee who has exhausted FMLA but is not yet capable of returning to work? Does an employer have to keep the absent employee’s job open? What medical evidence is needed? How much interactive dialogue is enough? What about an employee is who is unreasonable and/or demanding?
A recent opinion from the Eighth Circuit provides helpful guidance about these and other problems employers face when deciding whether extended medical leave is a reasonable accommodation for an employee with a serious medical condition who is not yet capable of returning to work. See Brunckhorst v. City of Oak Park Heights, (8th Cir. 2/4/2019).
Gary Brunckhorst worked for the City of Oak Park, Minnesota for more than 15 years. As the Senior Accountant for the City, Brunckhorst was responsible for payroll and certain IT functions. But, because the city had only 21 employees, he also carried out back-up duties for accounts payable and utility billing, assisted it he front office answering phones, and covered for other employees during their lunch breaks. By all accounts he seemed to be a model employee.
Unfortunately, in April 2014, Brunckhorst contracted a debilitating illness that changed his life in many ways, including the relationship with his employer. The disease is called Fournier’s gangrenous necrotizing fasciitis, which the court described as a form of “flesh eating” bacteria. Brunckhorst had to have three surgeries to save his life, and he spent five months in the hospital or a nursing care facility before finally returning home in September 2014.
Brunckhorst’s medical condition and resulting convalescence naturally resulted in him missing a substantial amount of work. His first 12 weeks of absence was covered by FMLA. Once FMLA leave was exhausted, the City had an ordinance that allowed an employee to take up to 90 days of continuous leave without pay for a serious health condition. Brunckhorst used up the 90 days, but was still not released to return to work. The City extended Brunckhorst’s leave two more times because his doctor kept moving back the date when he would be capable of returning.
In the meantime, as is sometimes the case with small employers dealing with a long-term employee absence whose return date is uncertain, the City Administrator found that the Senior Accountant position was not really needed. In Brunckhorst’ s absence, his duties were distributed to other employees, who were able to absorb them on a permanent basis. As a result, The City Council decided to eliminate Brunckhorst’ s position. That is, of course, when the troubles started.
The City tried to give Brunckhorst a soft landing when his position was eliminated by offering one of two alternatives: 1) a severance package; 2) a different job as the Utility Billing Clerk/ Accounting Technician, but it had a salary 30 percent lower than the Senior Accountant salary.
Brunckhorst rejected either alternative, instead demanding that he be returned to his old position. He remained on leave while the City tried to negotiate a return to work in the new position, with reasonable accommodations. Brunckhorst, through his attorney, remained insistent that the City had to return him to his old position, and also demanded a gradual return to work starting at four hours per day, working from home. Consistent with Brunckhorst’s medical restrictions, the City agreed to four hours per day for a certain period of time, but required him to work at City Hall. Brunckhorst and his attorney then demanded meetings with the Mayor and a City Council member to discuss these issues. The City refused that meeting with elected officials, but City staff offered to meet with him. Eventually, the City gave Brunckhorst a hard deadline by which he would have to return or be terminated. The City even extended the hard deadline, but finally, on April 29, 2015, the City Council voted unanimously to terminate him.
In his lawsuit against the City, Brunckhorst alleged, among other things, that the City engaged in disability discrimination when it eliminated his position; that it failed to engaged in an interactive dialogue, and failed to reasonably accommodate his disability. The district court granted the City’s motion for summary judgment, and the Court of Appeals affirmed.
The Court of Appeals’ opinion contains several useful nuggets that should help employers navigate many of the challenging questions presented in connection with a request for extended leave:
- Does an employer have to hold the absent employee’s position open? No; an employer’s right to return to the same or substantially similar job ends when FMLA leave expires and the employee does not return to work. It is not a reasonable accommodation to hold open a position if the employer determines the position is no longer needed.
- What about the EEOC Enforcement Guidance that holds an employer is required to hold a position open absent undue hardship? The Court rejected the EEOC’s position, stating that, “the EEOC document is not…binding authority.”
- What kind of medical information is needed? If possible, rely upon, and comply with, the restrictions imposed by the treating physician. Sometimes there may be a need to follow-up with the physician to clarify the nature and extent of limitations, or to provide more information about the job. While it may be necessary in some circumstances to obtain another medical opinion, an employer should have a good reason for concluding the treating physician cannot be relied upon.
- What if the employee on leave wants to work from home? While such an accommodation might be reasonable in some circumstances, if the employee’s limitations still allow him to come to at the workplace, and the job description requires the employee to come to work, it is not unreasonable to refuse a request to work from home. Brunckhorst wanted to work from home because it “would have been easier,” but the Court ruled the employer is not required to accommodate an employee based upon the employee’s preference.
- How much interactive dialogue is enough? Patience is a virtue here. In concluding that no reasonable jury could conclude the City failed to participate in the interactive process, the Court in Brunckhorst pointed favorably to the fact that the City “extended his leave multiple times, made multiple requests for information regarding what accommodations he required, and offered accommodations consistent with his doctor’s restrictions.”