Author: LegalEase Solutions

QUESTION PRESENTED

 Whether re positioning of an employee, by an employer after returning from approximately one year of leave, within the same organization, amounts to violation of any state or federal law and whether there is protection afforded to such employee either through the FMLA or the ADA?

 SUMMARY

 Generally, under Michigan and Federal law, an employee is entitled to the restoration of his or her position only when the employee returns to work in a timely manner. For the Family and Medical Leave Act, timely means within 12 weeks of the original date of leave. An employee must also be in a physical condition that enables him or her to perform essential functions of the position. Under the Americans with Disabilities Act, a qualified employee with a disability is entitled to reasonable accommodation for employment, except when such accommodation would cause an undue hardship on the employer. The definition of disability that triggers relief under the ADA is: some impairment of major life activities as functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working.

RESEARCH FINDINGS

Michigan Law

            Note that there is scarce relief available under the following provisions of Michigan law. Federal law governs FMLA and ADA causes of action, and Michigan law is provided here only for the sake of completeness.

Under state law, “an employee who on the date of his discharge is unable to perform the requirements of his job because of a disability may still have a claim under the HCRA[Handicapper’s Civil Rights Act] if he would have regained the capacity to do the work within a reasonable time.”Lamoria v Health Care & Ret Corp, 233 Mich App 560, 562; 593 NW2d 699, 701 (1999).

“MPWDA [Michigan’s Persons with Disabilities Civil Rights Act] requires an employer to give employees a reasonable time to heal, ‘so long as the delay does not impede getting the employer’s work done.’”  Franklin v. Blue Cross/Blue Shield of Michigan, 463 Mich. 887, 617 N.W.2d 316, 317 (2000) (quoting Rymar v Michigan Bell Tel Co, 190 Mich App 504; 476 NW2d 451 (1991)).

“The legislative intent in enacting the HCRA was to mandate the employment of the handicapped to the fullest extent reasonably possible. To this end, the act should be liberally construed by the courts.”Crittenden v Chrysler Corp, 178 Mich App 324, 331; 443 NW2d 412, 415 (1989).

“[T]he Michigan Supreme Court have noted that the federal Americans with Disabilities Act and the PWDCRA[Persons With Disabilities Civil Rights Act] share the same purpose and use similar definitions and analyses, and both courts have relied on the ADA[Americans with Disabilities Act] in interpreting the PWDCRA.” Chiles v Mach Shop, Inc, 238 Mich App 462, 472; 606 NW2d 398, 405 (1999).

Michigan law incorporates the following ADA language with respect to reasonable accommodation:

(9) Reasonable Accomodation

The term “reasonable accommodation” may include—

(A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and

(B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.

42 USC § 12111 (9)

Federal Law

Materially Adverse Employment Action

“For an employee, a change in employment conditions must be more disruptive than a mere inconvenience or an alteration of job responsibilities. Under that circumstance an employee may raise a genuine issue of material fact. Therefore, the court listed certain factors to consider in determining whether an employment action was materially adverse:

termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation. The court also stated that a change in employment conditions must be more disruptive than a mere inconvenience or an alteration of job responsibilities.”

Kocsis v Multi-Care Mgt, Inc, 97 F3d 876, 886 (CA 6 1996).

 Also,“a materially adverse employment action might be indicated if an employee received significantly diminished material responsibilities, and would therefore potentially raise a genuine issue of material fact.”Kocsis v Multi-Care Mgt, Inc, 97 F3d 876, 886 (CA 6 1996).

FMLA

The statutory provisions under the Family and Medical Leave Act state as follows:

(a) In general

(1) Entitlement to leave

Subject to section 2613 of this title, an eligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period for one or more of the following:

*** (D) Because of a serious health condition that makes the employee unable to perform the functions of the position of such employee.

29 USC § 2612

(a) Restoration to position

(1) In general, except as provided in subsection (b) of this section, any eligible employee who takes leave under section 2612 of this title for the intended purpose of the leave shall be entitled, on return from such leave—

(A) to be restored by the employer to the position of employment held by the employee when the leave commenced; or

(B) to be restored to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment.

29 USC § 2614

FMLA provides that:[A]ny eligible employee who takes leave under [the FMLA] shall be entitled, on return from such leave . . . to be restored by the employer to the position of employment held by the employee when the leave commenced; . . . or to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment.

Hoge v Honda of Am Mfg, Inc, 384 F3d 238, 245 (CA 6 2004).

Moreover,“[a]n employee need not specifically mention the FMLA when taking leave—all the employee must do is notify the employer that FMLA-qualifying leave is needed.” Chandler  v Specialty Tires of Am (Tennessee), Inc, 283 F3d 818, 825 (CA 6 2002). “With exceptions not at issue here, an employer is obliged to restore the employee to her prior position or an equivalent position upon return from leave.” Id.

Note that in our current fact scenario, Ms. Lynch is not entitled to claim relief under these sections as she was gone from work for far more than 12 weeks:

“The other relevant time frame under the FMLA is the 12-week period of statutory leave. Qualifying employees who return to work within that 12-week period are entitled to be reinstated to their previous position, or to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment.” Edgar v JAC Products, Inc, 443 F3d 501, 506 (CA 6 2006).“Once the 12-week period ends, however, employees who remain unable to perform an essential function of the position because of a physical or mental condition … [have] no right to restoration to another position under the FMLA.” Id.

Although the FMLA does not define the time when an employee’s return from FMLA leave becomes effective, thus triggering an employer’s duty to restore a returning employee, the FMLA’s regulatory scheme specifically contemplates circumstances where the date of an employee’s return from FMLA leave may change. Ordinarily, the employer and employee will communicate and establish the return date for an employee taking FMLA leave. In such cases, the timing of the employee’s return will not be at issue and the restoration entitlement will arise when the employee returns in a timely manner and in a physical condition to perform the essential functions of the position he left, and after providing the medical certification if required by an employer under 29 U.S.C. § 2614(a)(4). In fact, 29 C.F.R. § 825.309 facilitates communications regarding the return date for an employee on FMLA leave by permitting an employer to require an employee on FMLA leave to report periodically on the employee’s status and intent to return to work.”

Hoge v Honda of Am Mfg, Inc, 384 F3d 238, 247 (CA 6 2004).

Consequently,

If the employee has been on a workers’ compensation absence during which FMLA leave has been taken concurrently, and after 12 weeks of FMLA leave the employee is unable to return to work, the employee no longer has the protections of FMLA and  must look to the workers’ compensation statute or ADA [Americans with Disabilities Act] for any relief or protections.

Woodman v Miesel Sysco Food Serv Co, 254 Mich App 159, 190-91; 657 NW2d 122, 140 (2002).ADA

“The ADA and the FMLA have divergent aims, operate in different ways, and offer disparate relief. (FMLA and ADA causes of action may interrelate, [but] they involve separate and distinct statutory claims).” Hoge v Honda of Am Mfg, Inc, 384 F3d 238, 249 (CA 6 2004). “Unlike the FMLA, the finding of a disability is the key that unlocks the storehouse of statutory protections under the ADA. The ADA prohibits discrimination against employees who have a disability as defined by the statute. Id.

The United States Supreme Court has followed a three-step process for determining whether a plaintiff has a disability under the ADA:

First, we consider whether respondent’s [employee’s] was a physical impairment. Second, we identify the life activity upon which respondent [employee] relies … and determine whether it constitutes a major life activity under the ADA. Third, tying the two statutory phrases together, we ask whether the impairment substantially limited the major life activity.

Chiles v Mach Shop, Inc, 238 Mich App 462, 474; 606 NW2d 398, 406 (1999).

“[The] Court has defined major life activities as functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working.” Id. at 477.Thus, any “substantial limitation” suffered by an allegedly disabled individual must relate to one of these activities. Id. “[I]f an individual is not substantially limited with respect to any other major life activity, the individual’s ability to–perform the major life activity of working should be considered.” Id. at 478.

“To determine whether an individual is substantially limited, a court considers (i) the nature and severity of the impairment, (ii) the duration or expected duration of the impairment, and (iii) the permanent or expected permanent or long-term effect.” Id. at 479. “[A] disability normally does not include temporary medical conditions, even if those conditions require extended leaves from work. This Court noted that intermittent, episodic impairments are not disabilities, the standard example being a broken leg.” Id. at 479-80.

The relevant statute provides that:

If an employee is a qualified individual with a disability within the meaning of the ADA, the employer must make reasonable accommodations, etc., barring undue hardship, in accordance with the ADA. At the same time, the employer must afford an employee his or her FMLA rights. ADA’s “disability” and FMLA’s “serious health condition” are different concepts, and must be analyzed separately. FMLA entitles eligible employees to 12 weeks of leave in any 12–month period due to their own serious health condition, whereas the ADA allows an indeterminate amount of leave, barring undue hardship, as a reasonable accommodation.

 29 C.F.R. § 825.702

In order to establish that an employee is a qualified individual with disability, the employee must show that “(1)that he[employee] satisfies the prerequisites for the position [he holds or desires], such as possessing the appropriate educational background, employment experience, [and] skills …; and (2) that he [employee] can perform the essential functions of the position held or desired, with or without reasonable accommodation.” Burns v Coca-Cola Enterprises, Inc, 222 F3d 247, 256 (CA 6 2000).

Generally, “[a]t all times, the employee bears the burden of demonstrating her right to be restored to the same or equivalent position.” Mitchell v Dutchmen Mfg, Inc, 389 F3d 746, 748 (CA 7 2004).

On the other hand:

[I]f the plaintiff[employee] has direct evidence that the employer relied on his or her disability in making an adverse employment decision, . . . Court proceeds to a burden-shifting analysis. First, the plaintiff [employee] must establish a prima facie case by showing that he is disabled and otherwise qualified for the position, either with or without reasonable accommodation. Once the plaintiff[employee] has established a prima facie case, the burden shifts to the defendant[employer] to show that accommodating the plaintiff[employee] would impose an undue hardship on the operation of its business.

Rorrer v City of Stow, 743 F3d 1025, 1038-39 (CA 6 2014).

Similarly, “[t]he ADA prohibits employment discrimination based on an employee’s disability.” Cehrs v Ne Ohio Alzheimer’s Research Ctr, 155 F3d 775, 779 (CA 6 1998). Specifically, the ADA mandates that “[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” Id.

To defeat an employer in ADA claim:

[A]n employee must first make out a prima facie case of discrimination by establishing the following elements:

(1) he or she is disabled;

(2) otherwise qualified for the position, with or without reasonable accommodation;

(3) suffered an adverse employment decision;

(4) the employer knew or had reason to know of the plaintiff’s disability; and

(5) the position remained open while the employer sought other applicants or the disabled individual was replaced.

The burden then shifts to the employer to provide a non-discriminatory explanation for the employment decision.. If the employer offers what appears to be a legitimate explanation, the employee then has the burden of showing that the proffered explanation is pretextual.

Id.

However, “[b]ecause the ADA may permit a reasonable time to make accommodations for statutorily disabled employees, does not however, impact the FMLA’s right to restoration.” Hoge v Honda of Am Mfg, Inc, 384 F3d 238, 250 (CA 6 2004). ““An employer must  provide leave under whichever statutory provision provides the greater rights to employees. When an employer violates the FMLA and a discrimination law, an employee may be able to recover under either or both statutes.” Id. ”[A]n employee is entitled to be restored if he can perform the essential functions of his job. If he can, he is entitled to restoration and no potential ADA liability exists because he is capable of doing the work done previously.” Id.

CONCLUSION

Relief under the FMLA is only triggered where the employee has been gone for 12 weeks or fewer. Relief under the ADA doe not adhere to such a strict time frame, but the employee must demonstrate that they meet the standard for the statute’s definition of “disability”. Absent this showing, no relief is warranted under the ADA.