The U.S. District Court for the District of Kansas’ ruling in Johnson v. Norton County Hospital is an illustrative example of the complicated and often overlapping obligations employers have under the Family Medical Leave Act (“FMLA”) and the Americans with Disabilities Act (“ADA”). Specifically, employers should bear in mind that leave under the FMLA cannot be forced and that obligations under both statutes often arise simultaneously and require careful, and distinct consideration.
In Johnson, the plaintiff-employee worked as a nutritionist at Norton County Hospital (“NCH”). She was diagnosed with Crohn’s disease, which flared intermittently and caused her to be unable to work periodically. Plaintiff provided a conflicting FMLA certification form from her medical provider. The form, confusingly, indicated that the plaintiff would need up to ten days of time off when she experienced flares, that she would experience flares once a week, and that the plaintiff also needed a reduced work schedule of three days a week. NCH did not attempt to reconcile the contradictory statements with the plaintiff or her medical provider. Instead, NCH decided to interpret the form as requesting a three-day work week, and proactively picked the three days each week the plaintiff was to work, and the two days they decided plaintiff would take FMLA leave. NCH did not discuss or determine whether this arrangement would accommodate the employee’s medical-related restrictions. Upon being informed of the employer’s decision, the plaintiff voiced her dismay that she would be required to take FMLA leave on days when she felt capable of working. She explained to NCH that she only wanted to use FMLA leave when she had a doctor’s appointment or when she experienced a flare of her Crohn’s disease that prevented her from working. NCH did not budge from its position and informed the plaintiff that if she came into work on one of the days of the week the Company had preordained an FMLA day, she would be terminated for “FMLA insubordination.” After the employee came into work on such an “FMLA day,” she was terminated. She thereafter sued NCH under both the FMLA and ADA – alleging FMLA interference and retaliation as well as failure to accommodate and disability discrimination under the ADA.
In ruling on NCH’s motion for summary judgment, the Court determined that each of the plaintiff’s claims should be tried before a jury. With respect to the plaintiff’s FMLA interference claim, the Court explained that a jury could reasonably conclude that NCH was forcing plaintiff to take FMLA leave two days a week regardless of any medical necessity, and further that by terminating her employment when she was unwilling to agree to that forced leave, NCH unlawfully interfered with her FMLA rights. The Court explained that NCH’s rigid insistence on the three-day-a-week schedule could be seen as forced FMLA leave. The Court was particularly concerned that NCH had failed to seek clarity with the employee or her doctor concerning the confusing certification form. With respect to plaintiff’s FMLA retaliation claim, the Court explained that the undisputed fact that NCH terminated plaintiff’s employment within hours of what the jury might view as plaintiff’s refusal to take more FMLA leave than medically necessary was evidence suggesting pretext. Concerning the plaintiff’s ADA failure to accommodate claim, the Court noted that in light of NCH’s insistence on the three-day-a-week schedule despite obvious inconsistencies in the certification form, a reasonable jury could conclude that NCH was affirmatively avoiding having to consider other accommodations, as required under the ADA. Finally, regarding the plaintiff’s disability discrimination claim, the Court again pointed to the fact that pretext may be shown from NCH’s apparent failure to engage in the interactive process; its adherence to the inconsistent certification form without seeking clarification; and its continued insistence that the certification form required a rigid three-days-per-week schedule.
There are many lessons for employers in Johnson. First and foremost, employers should not force employees to take FMLA leave if it is not medically necessary (and should not “play doctor” to decide for themselves what is, and is not, medically necessary). If there is a question concerning the amount of leave medically required, like there was in Johnson, employers should engage in the “interactive process” required under the law and clarify with the employee and/or employee’s medical provider what is needed and/or being requested. Further, employers must remember that obligations under the FMLA and ADA often arise simultaneously and should not forget that requests for leave must be evaluated under both statutes. As many employers already know, this is a complicated area of law, and employers should consult employment law counsel to ensure compliance with legal obligations.