Disabled employees are sometimes caught
between the desire to work and the practical need to apply for disability leave
through the Social Security or State Disability Insurance (SSDI or SDI)
systems, the Family Medical Leave Act (FMLA) or California Family Rights Act
(CFRA), or a disability retirement plan through a public employer. For example,
an employee who becomes disabled on the job may find her employer denying her
reasonable accommodation, thereby leaving her with no better choice than to
seek some form of disability leave. FMLA leave is available for temporary
conditions that make an employee unable to perform the essential functions of
her job. In the past, an employee had reason to fear that statements made about
her inability to perform essential job functions in an application for FMLA
leave would be used against her if she later sued her employer for failure to
provide reasonable accommodation in the workplace.
Fear no more. Last
month, the Ninth Circuit provided a green light for disabled employees to apply
for FMLA leave while asserting their right to reasonable accommodation under
the Americans with Disabilities Act (ADA). In Smith v.
Clark County School District, D.C. No. 2:09-civ-02142-RLH-LRL (9th Cir. Aug.
21, 2013), the Ninth Circuit made it clear that bringing a claim
under the ADA does not inherently conflict with making a claim for FMLA
disability leave. The Court of Appeals explained that this is because FMLA
applications do not account for an employee’s ability to work with reasonable
accommodation.
In Smith, the Court also provided
guidance for employees seeking to apply for FMLA leave while preserving their
reasonable accommodation claims. Smith involved an elementary school employee
who aggravated her back while on the job, and applied for medical leave under
the FMLA, as well as state retirement and private insurance disability
benefits. The Court reasoned that the FMLA and the other claims were not
inconsistent with the plaintiff’s ADA cause of action because the statements
made on her applications did not account for her ability to perform her job
with reasonable accommodation, or her ability to work in the future. The Court
held that the teacher had given sufficient explanation for the inconsistencies
between her ADA claims and her benefits applications to survive summary
judgment, and genuine issues of material fact remained regarding whether the
teacher or school district proposed a reasonable accommodation that would allow
the teacher to retain her employment. Thus, an employee who becomes disabled on
the job may apply for FMLA leave, and maintain a reasonable accommodation
claim, if statements made in her FMLA application do not directly conflict with
the conclusion that the employee could either perform her job with “reasonable
accommodation,” or her ability to work in the future.
In arriving at its
conclusion, the Ninth Circuit applied a two part test set forth in Cleveland v. Policy Management
Systems Corporation, 526 U.S. 795 (1999). In Cleveland, an employee’s
application for SSDI was at issue. Subsequently, other appeals courts have
determined that Federal Employee Retirement System (FERS) benefits and
state-police pension benefits do not conflict with ADA claims. In Smith, the court denied summary
judgment as to not only the FMLA issue, but also Nevada Public Employees’
Retirement Systems disability retirement and private insurance benefits. A
general pattern seems to be emerging, and employees should note and take heart.
If you have
questions about disability discrimination under the ADA or California’s Fair
Employment and Housing Act (FEHA), contact Bryan Schwartz Law today.
NOTE: Nothing in this posting is intended to
provide legal advice about your particular case and it does not form an
attorney-client relationship with any reader. It is intended to be information
about a subject of general interest for the general public. In order for Bryan Schwartz Law to represent
you, you must have a signed representation agreement with the firm.
