Medical Leave as a Reasonable Accommodation: The View from the Sixth Circuit

Today’s case of the day is a published decision from the Sixth Circuit decided March 8, 2022. The case is Blanchet v. Charter Communications, LLC, here, and it contains a couple of lessons for employers. First, outsourcing HR doesn’t mean that you lose responsibility for what happens if the third-party administrator doesn’t comply with federal law. Second, medical leave beyond FMLA leave can be a reasonable accommodation. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning that direct evidence applies to failure to accommodate claims; court’s reasoning that a genuine issue of material fact exists as to whether plaintiff was otherwise qualified; court’s reasoning that a genuine issue of material fact exists as to whether a reasonable accommodation was possible; Judge Kethledge’s dissent; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

In July of 2014, Charter Communications hired Kelly Blanchet as a Direct Sales Representative (“DSR”). As a DSR, Blanchet was responsible for selling Charter’s services door-to-door in residential neighborhoods. Blanchet quickly excelled in her role, receiving positive feedback from her closest supervisors. For example, her long-time supervisor, Ryan Quigley, identified her as “one of [his] top producers.” Quigley added that she “always was at work on time” and that he could “always depend on her being where she should be.” Another supervisor, Jayson Docter, stated that Blanchet was “probably the top person on [his] team every month.”

 

During Blanchet’s employment, she became pregnant and requested maternity leave. She applied for and received Charter’s standard maternity leave, short-term disability benefits, and Family and Medical Leave Act (FMLA) benefits until September 4, 2016. After giving birth to her child on July 11, 2016, Blanchet developed postpartum depression. As a result of her medical condition, Blanchet requested an accommodation of additional leave under the FMLA, which extended past her initial return-to-work date of September 4, 2016. At that time, Sedgwick, a third party who administered disability leave for Charter, was primarily responsible for all direct communications with employees who requested leave.

 

Charter made clear that Blanchet should not communicate directly with the company regarding disability leave, but should communicate with Sedgwick only. For example, Blanchet’s supervisor, Ryan Quigley, directed Blanchet to speak with Sedgwick only. Thus, Sedgwick was the only party that Blanchet communicated with to request leave for her disability.

 

Charter approved Blanchet’s requests for accommodations from September 4, 2016, to February 1, 2017. Blanchet first sought and was approved for FMLA leave until it was exhausted on September 30, 2016. Blanchet then obtained short-term disability leave until it was exhausted on January 8, 2017. Charter subsequently approved Blanchet for long-term disability leave through February 1, 2017, as an ADA accommodation.

 

During that time, Sedgwick had a pattern and custom of having paperwork approvals delayed long after the initial verbal approval. For example, Blanchet did not receive formal approval for her first request for disability leave until February 3, 2017, two days after she was expected to return to work.

On February 3, 2017, Sedgwick received a letter from Blanchet’s doctor which indicated that Blanchet’s return to work date was “unknown at this time” but that Charter should “expect April” as a timeframe for her to return to work. The letter also indicated that Blanchet “would not be capable of working from home or in any other setting due to her severe depression.”

 

On the same day, Blanchet contacted a Sedgwick representative because she was concerned that she had exhausted her FMLA benefits and did not know how that would impact her employment with the company. Blanchet requested a 60-day accommodation, from February 2017 through April 3, 2017, to allow herself time to adjust to her new medications. When Blanchet contacted the Sedgwick representative about this extension, the representative assured Blanchet “not to worry about [her] job” and that “they were [her] job protection.” After Blanchet followed up a few weeks later with a Sedgwick representative, she was assured that “all was ok,” the representative “knew of no reason this [application] would not be approved,” and that Blanchet should be “receiving [her] approval letter for April 3, 2017.”

 

Blanchet relied on that verbal approval and continued her treatment with the psychiatrist. On March 9, 2017, Blanchet received a termination letter from Charter stating that she was separated from the company “effective January 10, 2017.” Prior to receiving this termination letter, no representative from Charter or Sedgwick contacted her to explain that her request for an accommodation was not reasonable. In addition, no representative from either Charter or Sedgwick requested additional medical records or reached out to inquire for more details on Blanchet’s condition.

 

Ten days after Blanchet received her termination letter, she received an approval letter for her request for extended leave as an accommodation. Unbeknownst to Blanchet, Fred Contreras, the HR Manager of Charter, had been in conversation with Sedgwick after an inquiry requesting his response to Blanchet’s request for approval. On February 22, 2017, Sedgwick emailed Contreras, informing him that a request for a leave of absence was pending for Blanchet, but that it received notice of termination as of January 9, 2017. Sedgwick asked Charter to “review this employee[’]s employment status and confirm.” On March 2, 2017, Sedgwick “escalated” the response as it had not heard from Contreras regarding the request. By March 10, 2017, one day after Blanchet received the termination letter, Contreras sent an email to Sedgwick that he has “responded twice to the request for extension before” and it is “ok with [Charter].”

 

Blanchet subsequently sued Charter after having filed a discrimination charge with the Equal Employment Opportunity Commission. The first count of her operative complaint, entitled “Disability Discrimination,” alleges that “[t]he action of Defendant Charter Communications in firing Plaintiff Kelly Blanchet is in violation of The Americans with Disabilities Act of 1990.” Charter moved for summary judgment, and the district court granted the motion. Blanchet appealed.

 

II

Court’s Reasoning That Direct Evidence Applies in Failure to Accommodate Cases

 

1. Since failure to accommodate is explicitly listed in the ADA’s definition of disability discrimination, claims based upon the employer’s failure to offer reasonable accommodation necessarily involve direct evidence.
2. A plaintiff only needs to allege facts premised upon an employer’s failure to accommodate for a court to apply the direct evidence test at summary judgment.
3. In Blanchet’s complaint, she alleged that she requested an extension of her leave as a workplace accommodation from October 1, 2016, through February 3, 2017. She also argued that Charter unlawfully fired her because her termination was effective during her approved accommodation. Since it is clear from the allegations that her claim was based upon Charter’s failure to accommodate, the claim necessarily involves direct evidence of discrimination under the ADA. Since plaintiff’s claims were so clearly made, Blanchet did not waive any argument that failure to accommodate claim necessarily involves direct evidence.
4. Even if Blanchet did forfeit her argument that the direct evidence test should apply, this would be one of those exceptional situations when an application of the rule would produce a plain miscarriage of justice.
5. While the court’s application of the indirect evidence standard was not correct, it did mean that the issue of the reasonableness of Blanchet’s requested leave was fully briefed before and considered by the district court because indirect evidence requires that a plaintiff show that she is qualified, i.e. can perform the essential functions of the job with or without reasonable accommodations. For that matter, the issue was fully briefed at the appellate court level as well.
6. Under the direct evidence test, Blanchet bears the initial burden of establishing that: 1) she is a person with a disability; and 2) she is otherwise qualified for the position despite his or her disability. Charter then bears the burden of proving that a challenged criterion is essential, and therefore a business necessity, or that the proposed accommodation would impose an undue hardship upon the company.

 

III

Court’s Reasoning That a Genuine Issues of Material Fact Existed as to Whether Blanchet Is Otherwise Qualified

 

 

1. For Blanchet to be otherwise qualified, she must show that she is otherwise qualified for the position despite her disability: 1) without accommodation from the employer; 2) with an alleged essential job requirement eliminated; or 3) with a proposed reasonable accommodation.
2. When it comes to an employee’s proposed accommodation of medical leave, it doesn’t do any good to examine her qualifications on the date of her termination because that would not indicate whether the employee is otherwise qualified with an accommodation.
3. Employees requesting medical leave often cannot perform their jobs at the moment they request the medical leave because it is the medical leave that allows them time to recover from illnesses or medical procedures. Accepting such a rule would mean that an employee requesting medical leave could always be terminated if she were unable to work at the time of her request, which is not consistent with precedent holding that medical leave can constitute a reasonable accommodation under the ADA. In other words, the question becomes whether Blanchet would be otherwise qualified to perform her essential job functions with her proposed accommodationwhen she returned to work.
4. Prior to her illness, Blanchet was a top producer, was always at work on time, and probably the top person on her team. At the time Blanchet requested her accommodation, Charter had no reason to conclude that her performance would deteriorate when she came back on her proposed return date.
5. Blanchet was not requesting an accommodation that would permanently remove attendance as a requirement for her position. Instead, she was asking for an extension of medical leave as a temporary accommodation in the hope that she could fully fulfill the attendance requirement once her medical leave was over.
6. Since a reasonable jury could find that Blanchet could have returned to work and attended her job after she recovered from her illness, a genuine dispute of material fact exists as to whether she was otherwise qualified for her position.

 

IV

Genuine Issues of Material Fact Exists as to Whether a Reasonable Accommodation was Possible

 

1. Determining the reasonableness of a proposed accommodation is a question of fact.
2. Once an employee meets her burden, the employer must then show an undue hardship or that the accommodation would eliminate an essential job requirement.
3. Medical leave as an accommodation is not a novel concept (the court actually cited to cases going back to 1986).
4. Charter itself considered the proposed accommodation reasonable. Blanchet testified that the third-party administrator told her that it was in communication with her employer and the new HR representative and that she would shortly be receiving her approval letter. Further, a senior HR official at Charter stated that the type of accommodation she was seeking could be possible for a Charter employee. That such a leave was possible was confirmed by the record when the third-party administrator administrator contacted a Charter employee regarding Blanchet’s request for extended leave on March 10, 2017, before she receives her termination letter but after she was effectively terminated. Finally, an employee of Charter confirmed that he responded twice to her request for an extension before and that it was okay with Charter, and Charter followed up 10 days after she received a termination letter with an approval for her extended accommodation.
5. A jury could conclude from this that Charter considered the leave reasonable and fired the plaintiff anyway. It’s fatal administrative mistakes and lack of clarity regarding Blanchet’s termination date raises genuine disputes of material fact as to whether reasonable accommodation was possible.
6. Blanchet requested approval from Charter before taking any leave, requested leave for specifified periods, and provided medical support for each of her absences in advance. Further, she did not have a history of absenteeism before she became pregnant and had excellent attendance. Blanchet’s physician also indicated that she was treating her with therapy and medications. So, a reasonable jury could find that Blanchet would recover from her illness within acceptable time.
7. Blanchet believing that her leave was approved from the third-party administrator administrator and Charter’s representations, did not know that she had to credibly prove anything.
8. When Blanchet received her termination letter in Marc 10, 2017, no one in the HR leadership at Charter or the HR’s third-party administrator contacted her to indicate that her request for an extended leave was unreasonable. Further, no one contacted her to request medical records or to inquire for further information about her current condition. Finally, when Blanchet contacted the third-party administrator to express concerns about her employment status and to communicate reason for the additional extension, she was told that there would be no reason her application would not be approved. So, it makes no sense for a court to require that a plaintiff provide an exact return date when an employer leads the plaintiff to believe she does not have to do so.
9. Once an employee requests an accommodation, the employer has a duty to engage in the interactive process.
10. Both parties have a duty to participate in good faith, and an employer is not participating in the interactive process in good faith if it determines what accommodations it is willing to offer before ever speaking with the employee. In this case, Charter never spoke directly with Blanchet, decided to fire her before even telling her that the accommodation was unreasonable, and led her to believe that her accommodation would be approved. Accordingly, Charter cannot use its failure to engage in the interactive process to argue that Blanchet’s proposed accommodation was unreasonable. This is especially the case when the evidence viewed most favorably to Blanchet shows that the request was reasonable enough for Charter to approve it.
11. In a footnote, the court notes that while Blanchet did not independently allege an interactive process claim, Charter’s failure to engage in the interactive process is directly related to determining whether her proposed accommodation would reasonable.

 

V

Judge Kethledge Dissent

 

This dissent is very short. It basically echoes a Seventh Circuit case, which is a minority view and which we discussed here, saying that additional leave is not a reasonable accommodation except in very few cases. Here, the dissent said that additional leave is objectively unreasonable when employee has already received significant amount of leave and has demonstrated no clear prospect for recovery (Charter had already provided her seven months of paid disability leave and had extended her leave five times).

 

VI

Thoughts/Takeaways

 

1. If you are going to outsource your HR function, you need to make sure that some kind of check is in the system so that decisions of the third-party administrator can be reviewed. After all, it is still your company on the hook.
2. One of the things that I did when I was a General Counsel was insist that anybody thinking of being terminated needed to have it reviewed by in-house legal counsel first. Also, I made it clear that employment at will really didn’t mean much anymore with all the protected classes and that termination should be for cause with employment at will only being used on the margins. By taking both approaches, outside legal fees were reduced by 80%.
3. The decision is published.
4. In the Sixth Circuit, failure to accommodate claims go off on direct evidence. This case does a good job of explaining why the direct evidence v. indirect evidence distinction matters. As we have discussed previously, one court was ready to throw up its hands with respect to all the arguing that goes on over direct evidence v. indirect evidence. Instead, as we discussed here, the Seventh Circuit suggested you might look to, “convincing mosaic.”
5. This is not the first time I have seen otherwise qualified talked about by a court in terms of a plaintiff could show that allege essential job requirement could be eliminated and still be otherwise qualified. I simply don’t get it. An employer does not have to modify or waive an essential job requirement. The only way this makes sense is if the court is saying that the essential job requirement that is alleged is not in fact essential.
6. Otherwise qualified is no longer the term under the ADA, rather the term is, “qualified.” “Otherwise qualified,” is still the term used in the Rehabilitation Act. Regardless, the two terms have identical meanings.
7. In evaluating medical leave, the question is whether the medical leave would allow the person to perform the essential functions of his or her job with or without reasonable accommodations at the point in time they return and not at the point in time they request leave.
8. Medical leave is a reasonable accommodation but indefinite medical leave is not. This case illustrates that there can be lots of gray areas in between the two.
9. In the Sixth Circuit, an interactive process claim is an independent cause of action, which is not always the case in every circuit.
10. One wonders if the United States Supreme Court will not get involved as to when medical leave is a reasonable accommodation because the United States Court of Appeals are certainly all over the place on the question. Compare this blog entry with here and here for example.
11. Interactive process, interactive process, interactive process! Also, don’t forget the do’s and don’ts of the interactive process, here.

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