“Sicker than a Dog”
Under the ADA, an employer is required to “reasonably accommodate” a “qualified individual with a disability.” In this recent case, the court had occasion to consider whether an open-ended request for leave was “reasonable” when it was made by an employee who claimed to be “sicker than a dog” and was “unable to work at all.” The court concluded that the employee was not a “qualified individual with a disability,” and the request for leave was not reasonable. Accordingly, the employee’s eventual termination did not violate the ADA.
Multiple Leaves of Absence Granted
In this case, a scientific communications employee of Eli Lilly & Co. was diagnosed with Cushing’s Syndrome. This and other medical issues led her to suffer from, among other things, severe chronic nausea, major depressive disorder and chronic fatigue. The employee’s medical problems made it difficult for her to continue her ninety-minute commute to Lilly’s Indianapolis office. Lilly granted her approval to work from home all but three days every two weeks, instead of from Lilly’s Indianapolis office. She performed her work successfully under this arrangement for some time. During that time, until her termination, Lilly approved several medical leaves of absence, which ranged from a few days off per month to extended multi-month periods of full-time leave. Lilly eventually eliminated its telecommuting policy and substituted a paid leave program that granted three months paid leave to eligible employees and even more leave at reduced pay for employees like the plaintiff in this case. She took advantage of those programs for as long as she could.
There was no question that she suffered a “disability” as defined by the ADA. The employee’s treating physicians indicated that she was not able to work for up to four months, but in the meantime, she ran out of her leave eligibility under Lilly’s paid leave program. She was then seen by a Lilly physician who determined that she was able to work. She was then asked to report for work, but she claimed that she “was unable to work at this time.” When she failed to report for work as Lilly requested, she was terminated.
She filed a charge of disability discrimination with the EEOC, which was dismissed, and then filed this court action. The court granted a summary judgment to Lilly explained below.
Unable to Work: Employee Is Not “Qualified”
When questioned at her deposition, the employee claimed that she “was sicker than a dog” and was “not able to work” – “anywhere.” This admission, according to the court, was enough to establish that she was not a qualified individual with a disability and therefore not entitled to an accommodation. Additionally, Lilly was not required to reasonably accommodate her with either allowing her to work from home or by extending her leave until her physicians said she could return.
Long-Term or Indefinite Leave Is Unreasonable
It has been well established by the courts that “no business is obligated to tolerate erratic, unreliable attendance.” Indeed, there is some case authority that would make a long-term leave involving many months by itself unreasonable. The problem for employers and the courts is in determining how long is too long that a leave of absence becomes unreasonable as an accommodation. That usually involves a question of fact that courts will leave up to a jury. However, an employee’s request for a long-term, indefinite leave of absence can become unreasonable if the leave requested does not have a definitive end date. It becomes unreasonable because the employee’s attendance (or lack thereof) can certainly be characterized as unreliable.
Despite the employee’s assertions that her requested absence was reasonable because it was “predictable” and not “indefinite,” the evidence didn’t support that. Her own physician stated in a way that is not at all uncommon:
“The patient will require ongoing follow up. It typically can take two months or longer to establish hormonal balance. Due to the ongoing issues, treatment and adjustments to her medications, she will be unable to work through September (i.e., two months later).”
The court said that far from providing a clear prospect that the employee will be able to return to work, the physician’s letter provides only the time during which the employee cannot work, without attesting one way or another regarding a return date. She even testified that her physicians at most hoped that her treatment would allow her to return to work after multiple months off, but there was no certainty in this regard. The mere hope that she would be able to return was insufficient to make her requested leave of absence a reasonable one. The court concluded that even if the employee’s requested absence was not too lengthy to be unreasonable, its indefiniteness rendered it so. Her request for an extended absence, which had no definite endpoint, shows that she was not a qualified individual under the ADA.
The Lesson for Employers
This case is interesting because it highlights the fact that being unable to work for a long time, and especially for a long time with no definite time when the employee can return to work, will likely result in a finding that the employee is not a qualified individual under the ADA.
Reference: DeLon v. Eli Lilly & Co., (S.D. Ind., No. 1:12-cv-00556-JMS-MJD, December 31, 2013).
If you have any questions please contact Steve Lyman at slyman@wp.hallrender.com or you regular Hall Render attorney.
