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6th Circuit Reinstates Failure-to-Accommodate Claim Against Employer That Terminated Employee With Outstanding Leave Request – Employment Litigation/ Tribunals


Once an employee requests an accommodation, the employer has
a duty to engage in an “interactive process” to try to
determine whether the employer can accommodate the employee’s
disability. With that in mind, employers should take note of this
recent decision from the U.S. 6th Circuit Court of Appeals (which
covers Tennessee), which provides that this duty includes fully
considering a request for accommodation in the form of medical
leave prior to terminating an employee with a disability.


This case involved a registered nurse, Jeanne King, who worked
at Steward Trumbull Memorial Hospital from approximately 2007 until
her termination in June 2017. King, who was described as “a
competently skilled emergency nurse” by her supervisor, was
diagnosed with asthma as a young adult, but her symptoms began
worsening around 2013 and 2014. During severe flare-ups, King would
call in sick and inform the hospital of why she could not work that
day. Several times King spoke directly with her supervisor and
specifically noted that she needed to miss work because of her
asthma, which she described as “disabling.”

The hospital allowed employees to seek medical leave of absence
to handle personal illnesses and disabilities under the Fair
Medical Leave Act (FMLA) or under a collective bargaining agreement
(non-FMLA leave). The hospital used a third-party administrator
(TPA) to manage both FMLA and non-FMLA leave requests. If an
employee did not qualify under FMLA, the TPA would consider whether
the employee qualified for non-FMLA leave. Under the hospital’s
attendance policy, it could discipline employees for
“excessive absenteeism” after three “different
occasions” in a year.

After King’s asthma worsened in 2013 and 2014, she was
absent on several occasions due to asthma flare-ups, some of which
were covered by either FMLA or non-FMLA leave. Over the course of
several years, King’s supervisor gave her several written and
verbal warnings for attendance issues. Her supervisor, however,
occasionally withdrew the disciplinary actions after the hospital
excused her absences under its medical leave policy (FMLA or
non-FMLA leave).

In April 2017, King experienced a particularly severe asthma
flare-up, which resulted in her calling in sick for 14 shifts over
the course of five weeks. During that period, she regularly saw her
physician and worked with him to find new medications and
treatments for her asthma. King’s doctor informed her that she
was not able to return to work until they developed a better
treatment. Initially, she did not request medical leave from the
TPA because she thought she was going to improve.

When King’s symptom’s worsened, she requested leave due
her asthma but did not specify how much time off she needed. The
TPA informed King that she was ineligible to apply for leave
because she had not worked the requisite hours and advised her to
contact the hospital’s human resources department (HR).
Believing that the TPA had miscalculated her hours, King told HR
that she was trying to apply for leave, but that the TPA was not
letting her do so because of her low hours. HR indicated that the
TPA did not have an accurate count of King’s hours because the
hospital had recently changed management and that it (HR) would
need to manually update her hours. King then notified her
supervisor that she was trying to apply for medical leave. Her
supervisor advised that he would also investigate her application
and get back to her.

While King’s request for leave was still pending, the
hospital terminated her employment for “failure to apply for
timely leave of absence” on June 2. At the time of her
termination, King had not heard back from HR about manually
updating her hours. Shortly after her termination, King learned
that the TPA had finally updated her hours but she was still
ineligible for FMLA leave. The TPA, however, did retroactively
approve certain periods of non-FMLA leave. Nevertheless, the
hospital’s decision to terminate King remained unchanged.

King filed a lawsuit against the hospital alleging, among other
things, that it failed to afford her reasonable accommodation for
her disability (i.e., asthma) under Ohio state law, which is
analyzed in the same manner as claims under the Americans with
Disabilities Act (ADA). Following the trial court’s granting of
summary judgment in favor of the hospital, King appealed to the
U.S. 6th Circuit Court of Appeals (6th Circuit), claiming the trial
court got it wrong and that her failure-to-accommodate claim should
be considered by a jury.


To succeed on her failure-to-accommodate claim, King needed to
show that “(1) she was disabled within the meaning of the
[ADA]; (2) she was otherwise qualified for her position, with or
without reasonable accommodation; (3) the [hospital] knew or had
reason to know about her disability; (4) she requested an
accommodation; and (5) the [hospital] failed to provide the
necessary accommodation.”

The parties agreed that King’s asthma was a disability. The
hospital, however, argued that King’s asthma-related issues,
which resulted in extended absences, made her unqualified for her
job because “an essential element of her job as a nurse . . .
required regular, in-person attendance.” The 6th Circuit
disagreed and concluded that leave as a reasonable accommodation is
consistent with the statutory purpose of the ADA “because it
enables the employee to return to work following the period of
leave requested as an accommodation—i.e., it enables the
employee to perform the essential function of attendance.”

In determining whether a leave request is reasonable, the
following factors should be considered: “(1) the amount of
leave sought; (2) whether the requested leave generally complies
with the employer’s leave policies; and (3) the nature of the
employee’s prognosis, treatment, and likelihood of
recovery.” To this end, the 6th Circuit concluded that
non-FMLA leave would have been a reasonable accommodation for
King’s asthma flare-ups considering that she did not seek an
unreasonable amount of leave according to the hospital’s own
leave policies. The 6th Circuit also noted that the hospital
ultimately determined that King qualified for non-FMLA leave
between May 14 and June 1 (the day before she was terminated).

Additionally, the 6th Circuit found that a jury could conclude
that the hospital, which was aware that King was missing work due
to her asthma, knew her asthma was so severe that it rose to the
level of a disability; that King, who made several calls to her
supervisor and the TPA, requested an accommodation and the hospital
prematurely halted the interactive process while her leave request
was still outstanding; that the hospital, by retroactively
approving her request for non-FMLA leave after terminating
her, denied her the reasonable accommodation she requested; and
that the hospital would not have suffered undue hardship by
granting King retroactive medical leave.

Based on the foregoing, the 6th Circuit reversed the trial
court’s granting of summary judgment in favor of the hospital
and reinstated King’s failure-to-accommodate claim. King v.
Steward Trumbull Memorial Hospital
, No. 21-3445 (6th


Employers must always remember that a request for leave may be
considered to be a request for accommodation under the ADA and/or
analogous state laws, and that, in some instances, an employer may
be required to provide leave under those laws even if it would not
be required to do so under the FMLA or the employer’s other
leave policies. For instance, an employee who must miss work due to
a serious health condition, but who is not eligible for FMLA due to
insufficient hours or tenure, may be entitled to leave as form of
accommodation under applicable disability laws. At the very least,
an employee’s request for leave triggers the employer’s
duty to engage in an “interactive process” to determine
whether it can reasonably accommodate the employee’s

Larger employers with generally sound leave policies also should
bear in mind that their generous benefits programs and good faith
efforts to abide by the law will not necessarily protect them in
the case of an inadvertent communication failure or “glitch in
the system,”; nor will an employer be protected from liability
based on use of a third party vendor to administer employee leave
requests. In the end, the employer itself is always responsible for
compliance; accordingly, employers should make sure that multiple
checks have been conducted, and that all interactive process steps
have been fully documented, prior to pulling the trigger on any
termination involving an employee with a chronic health issue. And
when in doubt, it is always best to check with an experienced
employment attorney.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.


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