Extending Leaves Under The ADA – Part 2

Medical Leave Of Absence As An Accommodation

Read Part 1 First

Before telling you how the court ruled, let’s look at the other case with very similar facts. In Aston, plaintiff began working for Tapco in 1989 as its Facilities Maintenance/Shipping Receiving Manager. Among other things, his job description indicated that he was required to lift objects of 30 to 60 pounds. Tapco’s policies do not provide for leave beyond the twelve weeks of FMLA and, after an employee exhausts 26 weeks of disability payments, they are generally terminated.

In May 2006, plaintiff had triple bypass surgery and was granted leave for more than six months. In May 2010, he suffered a heart attack and he began taking FMLA leave. On August 30, a copy of the job description was faxed to plaintiff’s doctor who was asked if/when the employee would be able to return to work and whether he would require light duty. On November 4, 2010, plaintiff’s doctor forwarded the completed short term disability form and indicated that plaintiff was being scheduled for “ICD surgery”. The doctor certified plaintiff as continuously disabled through January 1, 2011, when he could return to work. On the job description, the doctor wrote ok next to every item, underscored some of the physical requirements and, next to lifting, wrote no lifting over 30 pounds.

The Human Resources Director “searched the internet” for ICD surgery and found that the devices were implanted in heart patients to prevent sudden death. Given that, the HR Director believed that the surgery was mandatory. A couple of weeks later, he called plaintiff to discuss the disability insurance benefits and plaintiff’s job status. Plaintiff contends that during their discussion, the Director told him that they thought the job was too much for him, that his doctor had him on restrictions and they would need him to be able to return without restrictions, and that they had pretty much decided to terminate him so he should apply for long term disability benefits. He was given until November 22 to return to work.

Plaintiff spoke with a nurse at his doctor’s office and indicated he would lose his job if he was not returned to work. As a result, the physician returned him to work effective November 22, with only a 30 pound lifting restriction. Plaintiff had not yet had his ICD surgery. The HR Director was concerned that the note did not reflect the true opinion of the physician but rather the desire to assist plaintiff. He spoke with plaintiff’s supervisor and, together, they called plaintiff to inform him he was terminated. Thereafter a letter was sent to plaintiff indicating that first his physician indicated he could not return to work until January and then the date was changed to November 22 with a 30 pound lifting restriction. Because he was not released to full duty he was discharged.

Read Part 3

Claudia Orr
An attorney in the firm’s Detroit office, Claudia D. Orr focuses her practice primarily in the area of labor and employment law. Her clients have included Fortune 500 companies, local governments, tier-one automotive suppliers, nationwide distributors of pharmaceutical products, numerous nonprofit agencies, healthcare providers, restaurants, and wholesale food distributors. She also has extensive litigation and appellate experience, and regularly practices before state and federal courts as an advocate.