“KSB, hypothetically speaking (our favorite phrase!) how should I handle an employee who has taken multiple leaves of absence for medical reasons and still provides a doctor’s note that the employee may be unable to work with or without accommodations for an additional three months?” This is a fan favorite question around the office. If you know lawyers, our favorite response is always “it depends.” (This is what three years of law school teaches lawyers.)
In November, the United States Court of Appeals in the First Circuit decided a case regarding a 9th grade English teacher who requested a four week leave of absence for hip surgery. After complications arose post surgery, the employee’s doctor provided a note stating the employee would be unable to work with or without reasonable accommodations for an additional three to six months. At this point, the employee had utilized all her FMLA leave and available paid time off. The school district ultimately terminated the teacher’s employment and said she could reapply upon being cleared to work. The teacher filed a lawsuit against the school alleging disability discrimination under the ADA.
While Nebraska and South Dakota are not part of the First Circuit, the ADA is a federal law so the language and rationale the court utilized are insightful. The court stated the teacher’s argument failed to consider “the school's need to provide continuity and adequacy of instruction in all five of her English classes.” Additionally, the court noted the teacher did not consider the risk the school faced from the possibility that the substitute teacher, who was paid a daily rate and was not a regularly contracted teacher, could leave the assignment at any time. Lastly, the Court said “nor does [the teacher] address the school's legitimate concern with its inability to guarantee its ninth-grade English students high-quality education from a full-time, permanent instructor during the 2019-2020 school year as a result of her leave.” The school district was entitled to summary judgment. (Teacher loses!)
In general, if you have an employee that gives a definitive time when they will be able to return to work and complete their job (with or without a reasonable accommodation) and that amount of time is reasonable, then the school should consider providing additional leave under the ADA. If the employee has utilized all paid leave and FMLA leave, the school may consider granting additional leave under the ADA if the request is reasonable. (Remember, you likely will be considering termination of the employee’s health insurance and offering COBRA coverage if FMLA leave has ceased.) Additionally, for our Nebraska clients, you can always consider an unpaid leave of absence agreement under Neb. Rev. Stat. 79-838.
As you work through long term leave situations, do not forget to consider the FMLA, ADA, leave of absence agreements, or the impact of long term disability policies. If you have any questions as you work through the analysis of whether medical leave is reasonable, please feel free to contact Karen, Steve, Bobby, Coady, Jordan, Tyler or Sara at (402) 804-8000, or send everyone an email at ksb@ksbschoollaw.com.