Most Disabled California Workers Should File State, Rather than Federal, Employment Discrimination Claims, after Anthony v. TRAX

The Ninth Circuit Court of Appeals issued a disappointing ruling interpreting the Americans with Disabilities Act (“ADA”) earlier this month. The case is Anthony v. TRAX International Corp. According to that ruling, an employee cannot pursue remedies under the ADA if their employer discovers after its discrimination that the employee lacked the prerequisite qualifications to perform the job. Even though the employer lacks this “after-acquired evidence” at the time it discriminates against the employee—even though the employer actually discriminated against the employee—such evidence can preclude recovery under the ADA, under this precedent. As discussed below, in the wake of this decision, plaintiff-side attorneys should consider bringing disability discrimination actions under California law instead of the ADA, and must investigate the qualifications issue in any case with ADA claims.

The employee in the case, Sunny Anthony, suffered from PTSD and related anxiety and depression. When her condition worsened, she was forced to miss significant time at work. Afterwards, her employer, TRAX, a government contractor with the Department of the Army, warned her that she would be fired if she did not submit a doctor’s note saying that she could return to work without restrictions, even though policies requiring employees to be 100% healthy do not comply with the ADA. When she failed to provide such a note, TRAX fired her. Ms. Anthony would have been eligible for rehire at administrative positions that were open at the time of her termination, but TRAX did not consider transferring or reassigning her, or any other measure, as an accommodation.

Ms. Anthony sued TRAX for disability discrimination and failure to engage in the interactive process regarding disability accommodations under the ADA. During the lawsuit, TRAX learned that Ms. Anthony did not have a bachelor’s degree, a requirement for all workers at Ms. Anthony’s position under TRAX’s contract with the Department of the Army. On this basis, TRAX successfully moved to have the case dismissed.

The Ninth Circuit affirmed the ruling in TRAX’s favor, holding that Ms. Anthony was not “qualified” under the ADA. See 42 U.S.C. § 12112(a). The court relied on EEOC regulation 29 C.F.R. § 1630.2(m) interpreting the ADA to analyze Ms. Anthony’s qualifications. To determine whether an individual is qualified pursuant to this ADA regulation, a court examines whether the individual has the qualifications necessary to perform the position (such as educational or experiential background) and whether the individual could perform the essential duties of the job with or without accommodations.

TRAX did not know about Ms. Anthony’s lack of a bachelor’s degree when it discriminatorily fired her. But despite TRAX’s wrongdoing, the Ninth Circuit held that Ms. Anthony’s lack of a bachelor’s degree completely barred her ADA claim. Because of 29 C.F.R. § 1630.2(m), according to the court, the question of an ADA plaintiff’s qualification is always pertinent, even if it has nothing to do with the alleged wrongdoing. The court suggested that the EEOC could amend this regulation in order to achieve a different result, though amending regulations is no easy task under any administration, and amending regulations to favor employees is even less likely under the current administration.

Ms. Anthony invoked the U.S. Supreme Court decision in McKennon v. Nashville Banner Publishing Co., 513 U.S. 352 (1995), an age discrimination case, to support her argument that the evidence of her lack of a bachelor’s degree acquired after her termination did not disqualify her from bringing her ADA claim. Bryan Schwartz Law has written about this case and the after-acquired evidence doctrine here, here, and here. McKennon held that, at most, such after-acquired evidence cuts off liability after the employer learns of a legitimate reason for termination. Ms. Anthony argued the same logic was at play in her ADA case.

In disagreeing, the Ninth Circuit argued that the Age Discrimination in Employment Act lacked a “qualified individual” requirement, unlike the ADA. It held that after-acquired evidence can show that a plaintiff is not qualified in an ADA case, even though such evidence cannot be used to support an employer’s purportedly neutral non-discriminatory basis for terminating an employee. The court noted, “An employer’s ignorance cannot create a qualification when there is none.”

Although the Anthony decision represents a setback for disabled employees seeking to enforce their ADA rights, the decision specifically applies to cases brought under the federal ADA, where 29 C.F.R. § 1630.2(m) is in effect, and not California’s Fair Employment and Housing Act (“FEHA”). After-acquired evidence does not provide a complete defense to a FEHA claim, thanks to the California Supreme Court decision in Salas v. Sierra Chemical Co., which followed McKennon and held that due to FEHA’s strong antidiscrimination purpose, “the doctrine[] of after-acquired evidence… [is] not complete defense[] to a worker’s claims under California's FEHA….” Instead, wronged employees are entitled to compensation from the date of the adverse action to the date the employer acquired information about the employee’s ineligibility for work. See Horne v. Dist. Council 16 Int’l Union of Painters & Allied Trades, (2015) 234 Cal. App. 4th 524, 540 (“Salas makes clear that after-acquired evidence is only relevant in the damages phase of a FEHA proceeding.”) Bryan Schwartz Law has written about Salas here.

Because after-acquired evidence cannot disqualify a disabled employee from recovery under FEHA pursuant to current law, practitioners should consider filing under FEHA rather than the ADA if possible. If the ADA is the only option, practitioners considering new cases should investigate the job requirements and the employee’s actual qualifications, without assuming that the fact of employment, no matter how long or exemplary, indicates that the employee was qualified. It is also important to note that Anthony hinged on an interpretation of a regulation specific to the ADA and distinguished McKennon on that ground; other federal discrimination statutes without an analogous regulation are unaffected. Furthermore, Anthony does not allow employers to retroactively come up with job requirements that did not exist at the time the employee was terminated, because a plaintiff must demonstrate that they were “qualified at the time of the adverse employment action, rather than at some earlier or later time.” Anthony Slip Op. at 11.

In addition, the Anthony court did not bolster the “unclean hands” doctrine, another legal defense based on misconduct by the employee. This defense is based on the questionable theory that a defendant should not have to pay for its wrongdoing when the accuser is just as guilty of wrongdoing. “Unclean hands” can constitute a complete defense, but it is unavailable “where a private suit serves important public purposes,” such as to enforce anti-discrimination statutes like the ADA. McKennon, 513 U.S. at 360-361.

If you believe your employer has discriminated against you based on your disability, contact Bryan Schwartz Law. 

Ninth Circuit Holds Catholic School Teacher fired after Cancer Diagnosis Can Sue School for Discrimination, Not Barred by First Amendment

On December 17, 2018, the Ninth Circuit reversed a decision by the United States District Court for the Central District of California in Biel v. St. James School, A Corp., et al., Case No. 17-55180.

Plaintiff Kristen Biel, a fifth-grade teacher for Defendant, filed a claim under the Americans with Disabilities Act (“ADA”) when St. James Catholic School fired her after she told the School that she had breast cancer and needed time off from work to undergo chemotherapy. The district court dismissed Biel’s claims at summary judgment—holding that her lawsuit under the ADA was barred by the First Amendment’s “ministerial exception.” After her case was dismissed, Plaintiff Biel appealed to the Ninth Circuit.

In November 2013, Plaintiff Biel received a positive teaching evaluation from the School’s principal, noting that Biel was “very good” at promoting a safe and caring learning environment for her students. Less than six months after that evaluation, Biel was diagnosed with breast cancer. When she disclosed her diagnosis to the School’s administrators, she was told her employment contract would not be renewed because “it was not fair … to have two teachers for the children during the school year.”

Biel sued St. James in the United States District Court for the Central District of California, alleging that her termination violated the ADA, which prohibits employment discrimination based on disability. St. James moved for summary judgment, arguing that the First Amendment’s ministerial exception to generally applicable employment laws barred Biel’s ADA claims. The district court agreed and granted summary judgment for St. James.

On appeal, the Ninth Circuit reversed, finding that the total circumstances of Biel’s employment did not qualify her as a minister for the purposes of the ministerial exception.

In Hosanna-Tabor, the only case where the U.S. Supreme Court has applied the ministerial exception, the Court focused on four major considerations to determine if the ministerial exception applied: (1) whether the employer held the employee out as a minister, (2) whether the employee’s title reflected ministerial substance and training, (3) whether the employee held herself out as a minister, and (4) whether the employee’s job duties included “important religious functions.” Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, 565 U.S. 171, 192 (2012).

In Hosanna-Tabor, Cheryl Perich, a teacher for a Lutheran school, was fired after she was diagnosed with narcolepsy and brought ADA claims against the school. The Supreme Court found that the ministerial exception did apply because Perich was more than just a teacher in the Lutheran school. She had a special title of “Minister of Religion” conferred to her by the congregation and distinct from other teachers. Perich led her students in daily prayer, and she also led the school wide mass that occurred twice each school year. Perich claimed a federal tax benefit for employees earning compensation in the "exercise of the ministry" on her tax returns, and she also had to complete extensive religion training in the Lutheran doctrine that took her six years to complete in order to be a commissioned minister. In light of these circumstances, the Supreme Court held that Perish was a minister covered by the ministerial exception.

The Ninth Circuit found that Biel, by contrast, had no sort of credentials, training or titles like Perich. Biel was Catholic, but St. James Catholic School did not require its employees to be Catholic to teach. Biel did not have any extensive training in religion or the Catholic pedagogy. Biel taught all fifth-grade subjects, including a thirty-minute religion class using a workbook on the Catholic faith prescribed by the school administrators. And while Biel joined her students in prayer twice daily, Biel did not lead her students in prayer, and her only job duties at the School’s monthly mass were to keep her class orderly and quiet.

After a holistic examination of her training and duties demonstrated that Biel had a limited role in her student’s spiritual lives, the Ninth Circuit held the ministerial exception did not apply, reversing and remanding her case back to the district court. Biel’s lawyer, Andrew Pletcher, said Biel is still struggling with cancer but is delighted by the Ninth Circuit's ruling.

It Doesn’t Hurt to Ask: New CA Law Protects Right to Ask for Reasonable Accommodation Under California’s Anti-Discrimination Law

Governor Brow­­­­n recently signed into law Assembly Bill 987, overturning the wrong result in Rope v. Auto-Chlor System of Washington, Inc., 220 Cal. App. 4th 635 (2013), review denied (Jan. 29, 2014), and thereby ensuring that all Californians need not fear retaliation should they request a reasonable accommodation from their employer.

In Rope, the plaintiff sought to donate his kidney to his sister. Accordingly, he requested leave from his employer to undergo the transplant surgery and recover from the operation. After repeatedly ignoring Mr. Rope’s requests for leave, the employer eventually approved an unspecified amount of leave. However, only two months before the operation date, Mr. Rope’s employer fired him for allegedly poor performance. Importantly, Mr. Rope had received only positive performance reviews during his employment and had no disciplinary problems prior to his termination.

Mr. Rope filed suit asserting multiple claims including retaliation for requesting a reasonable accommodation under the Fair Employment and Housing Act (FEHA). The trial court dismissed his lawsuit on demurrer, including the retaliation claim. Mr. Rope appealed.

To the dismay of worker advocates statewide, the Court of Appeal affirmed the trial court’s dismissal of Mr. Rope’s retaliation claim. The appellate court interpreted the retaliation provision under the FEHA to require that 1) an employee “engaged in activities in opposition to the employer at the time of the alleged retaliation,” and 2) the employer knew about it. Id. at 653. While the Court of Appeal acknowledged that the FEHA “encompasses a broad range of protected activity,” does not require that an employee “file a formal charge,” and that “[t]he determination as to what constitutes a protected activity is inherently fact driven,” the court nevertheless held that requesting a reasonable accommodation categorically is not “protected activity” under the FEHA. Id. at 652-653. The court did not interpret an employee’s request for reasonable accommodation as “opposition” to an employer. Id. at 652-53.

Other courts have reached different results in similar circumstances, noting that “[i]t would seem anomalous … to think Congress intended no retaliation protection for employees who request a reasonable accommodation unless they also file a formal charge. This would leave employees unprotected if an employer granted the accommodation and shortly thereafter terminated the employee in retaliation.” Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 191 (3d Cir. 2003) (in the context of a lawsuit brought under the Americans with Disabilities Act). The Third Circuit’s concern was warranted, given the outcome in Rope.

Assembly Bill 987 corrects the anomalous result in Rope by ensuring that employees can request reasonable accommodations in the workplace without fear of retaliation. Employers should take notice that, separate from their duty to engage in the interactive process, they may not retaliate against an employee for requesting a reasonable accommodation.

If you believe your employer retaliated against you because you requested a reasonable accommodation, please contact Bryan Schwartz Law.

If You Employ Nurses, Know Their Disability Rights

This article, co-authored by Bryan Schwartz Law's principal and Eduard Meleshinsky, is reprinted with the permission of Bloomberg BNA’s Health Law Reporter. The original article is available at here.

Nurses on the front lines of patient care have a significantly greater likelihood of sustaining a workplace injury than average private sector workers. The Bureau of Labor Statistics reports that nurses suffer greater numbers of musculoskeletal injuries than either firefighters or police patrol officers. Press Release, Bureau of Labor Statistics, Department of Labor, USDL-14-2246, Nonfatal Occupational Injuries and Illnesses Requiring Days Away From Work, 2013 (Dec. 16, 2014), available at http://www.bls.gov/news.release/pdf/osh2.pdf. As a result, health care employers need to be particularly mindful of their legal obligations under the Americans with Disabilities Act (ADA) and state disability laws, separate from the requirements of the Family Medical Leave Act (FMLA), state medical leave laws, and workers’ compensation statutes.

I. The ADA Creates Strong Protections for Nurses

The Americans with Disabilities Act (ADA) ensures that people with disabilities can “fully participate in all aspects of society.” 42 U.S.C. § 12101(a). Title I of the ADA, the section addressing employment, provides that a covered employer many not “discriminate against a qualified individual on the basis of disability 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.” 42 U.S.C. § 12112(a). Under the act, discrimination includes failing to make reasonable accommodations to an otherwise qualified job applicant or current employee unless such accommodations would constitute an undue hardship on the covered employer. 42 U.S.C. § 12112(b)(5)(A). Determining whether a reasonable accommodation creates an undue hardship is a fact-intensive inquiry, and must include consideration of “the overall financial resources of the facility making the reasonable accommodation; the number of persons employed at this facility” and “the overall financial resources, size, number of employees, and type and location of facilities of the employer (if the facility involved in the reasonable accommodation is part of a larger entity),” among other factors. Equal Employment Opportunity Commission, Notice No. 915.002, EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (2002) (EEOC Notice), available at http://www.eeoc.gov/policy/docs/accommodation.html. See also 42 U.S.C. § 12111(10)(B); 29 C.F.R. § 1630.2(p)(2). Accordingly, proving a reasonable accommodation constitutes an undue hardship is a difficult task for all but the smallest health care employers. See, e.g., Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131, 142 (2d Cir. 1995) (denying summary judgment because “nothing inherently unreasonable or undue in the burden that an employer would assume by providing an assistant to an employee with disabilities”); Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 649 (1st Cir. 2000) (denying summary judgment on the basis that unpaid leave for more than one year was not an undue burden as a matter of law); Garza v. Abbott Labs., 940 F. Supp. 1227, 1241-43 (N.D. Ill. 1996) (summary judgment denied because $9,500 voice recognition system was not an undue burden as a matter of law); Equal Employment Opportunity Commission, Questions and Answers about Health Care Workers and the Americans with Disabilities Act, at Example 22 (2002) (EEOC Q&A) (presenting hypothetical where purchasing a $1,500 mechanical patient lifting device is not an undue hardship for a large hospital seeking to accommodate a nursing assistant with a back injury), available at http://www.eeoc.gov/facts/health_care_workers.html.

Furthermore, an employer cannot rely on generalized stereotypes of disabilities in deciding whether to grant a request for a reasonable accommodation. Instead, an employer must enter into a good-faith interactive process with an eligible employee to determine whether any reasonable accommodations are possible based on an individualized assessment of the employee’s restrictions and the essential duties of the job. 49 C.F.R. § 1630.2(o)(3).

II. Consider the Full Range of Accommodations Nurses May Require 

While injury prevention should be every employer’s goal, nurses likely will continue to account disproportionately for on-the-job back injuries. Accordingly, hospitals should design their leave and accommodation policies to consider the unique facts at issue when nursing staff is injured. When a nurse suffers a back or other type of injury, she or he often remains capable of performing the vast majority of her job duties. If the back injury substantially limits her in one or more major life activities (personal care, driving for long periods, lifting, bending, sitting, working, etc.), she or he will have an ADA-covered disability. See, e.g., EEOC v. AutoZone, Inc., 630 F.3d 635, 637 (7th Cir. 2010) (employee sustained an injury to his back that limited his ability to carry out many activities requiring physical exertion, such that a reasonable jury could find him substantially limited in the major life activity of personal care); Norris v. Allied-Sysco Food Servs., Inc., 948 F. Supp. 1418 (N.D. Cal. 1996), aff’d, 191 F.3d 1043 (9th Cir. 1999), cert. denied 528 U.S. 1182 (2000) (employee with a back injury had an ADA covered disability because of acute pain and substantial limitations on driving, lifting, and working in a broad class of jobs). It is incumbent on the employer to perform an individualized assessment of the injured nurse and determine whether the nurse can perform her or his essential job duties with or without reasonable accommodations. Many health care employers make the mistake of thinking too narrowly about what constitutes a reasonable accommodation. Under the ADA, the following is a nonexhaustive list of reasonable accommodations:

• Job restructuring,  
• Modified or part-time schedule,
• Leave, and, if no other reasonable accommodation exists, 
• Reassignment 

See EEOC Notice; See also 42 U.S.C. § 12111(10)(B); 29 C.F.R. § 1630.2(p)(2).

1. Job restructuring 

An employer can choose to modify injured nurses’ job duties such that they are not required to perform certain physically demanding tasks permanently, or temporarily while recuperating. Healthy nurses can be assigned more strenuous activities while injured nurses remain capable of serving many less physically demanding functions in a hospital or medical facility, such as calling patients before a procedure and medical coding. Job restructuring is often a sound business decision given the costs of training new nurses. Hospital Patient and Health Care Worker Injury Protection Act, Ch. 554, § 2(d), 2011 Cal. Legis. Serv. (codified at Cal. Lab. Code § 6403.5) (California Legislature found that the cost “to train and orient each new nurse” was “between sixty thousand dollars ($60,000) and one hundred forty thousand dollars ($140,000)”).

2. Modified or Part-time Schedule 

At times, an injured nurse may be released back to work by a doctor, but only with a reduced or modified schedule. Honoring such a schedule is critical for injured nurses who can return to work, but who, for example, still require time-intensive physical therapy to regain physical functioning. Health care employers must consider allowing a modified or part-time schedule unless doing so would impose an undue hardship on operations. See, e.g., Ward v. Mass. Health Research Inst., Inc., 209 F.3d 29, 36 (1st Cir. 2000) (rejecting employer’s “general statements regarding the snowball effect” of allowing disabled employee part-time schedule because “[t]he ADA explicitly states that ‘job restructuring’ and ‘part-time or modified work schedules’ are potential reasonable accommodations”) (citing to 42 U.S.C. § 12111(9)(B)).

3. Leave 

Often, a back injury can last more than the 12 weeks of medical leave guaranteed by the FMLA. However, inflexible leave policies that apply a one-size-fits-all approach to injured nurses violate the ADA. Additional leave should always be considered as a reasonable accommodation regardless of the injured worker’s FMLA eligibility, sick time, vacation time, or other benefits. Humphrey v. Mem’l Hospitals Ass’n, 239 F.3d 1128, 1137-39 (9th Cir. 2001) (employer violated ADA by failing to consider leave of absence in carrying out its “mandatory obligation under the ADA to engage in an interactive process with the employee to identify and implement appropriate reasonable accommodations”); Press Release, Equal Employment Opportunity Commission, Princeton Healthcare Pays $1.35 Million to Settle Disability Discrimination Suit with EEOC (June 6, 2014) (EEOC Release), available at http:// www.eeoc.gov/eeoc/newsroom/release/6-30-14.cfm (employer’s leave policy that “merely tracked the requirements of the federal Family Medical Leave Act” violated the ADA); Shannon v. City of Philadelphia, No. CIV.A. 98-5277, 1999 WL 1065210, at *5 (E.D. Pa., Nov. 23, 1999) (reasonable accommodation may require an employer “to grant liberal time off or leave without pay when paid sick leave is exhausted and when the disability is of a nature that it is likely to respond to treatment [or] hospitalization”) (citing Department of Labor regulations for disability accommodation law covering federally funded programs). The EEOC is targeting inflexible leave policies as one of its regulatory priorities, and has successfully obtained seven-figure outcomes and injunctive relief against health care employers for their inflexible leave policies. See EEOC Release. Health care employers should revisit any leave policies providing for automatic termination following a fixed period of leave.

4. Reassignment 

Reassignment to a vacant position is an often misunderstood form of reasonable accommodation, though it is required under the ADA. 42 U.S.C. § 12111(9)(A). Reassignment should be used as an accommodation of last resort after the employer and employee agree that no reasonable accommodation is possible in the employee’s current position either long-term or permanently. If a nurse’s injury is so severe as to render her or him unable to safely handle patients or otherwise limits performing essential job functions, and no other reasonable accommodations exist, the health care employer must consider reassignment. If any vacant position is available for which the injured nurse is qualified, then the employer must reassign the nurse without a competitive application process. Smith v. Midland Brake, Inc., 180 F.3d 1154, 1164 (10th Cir. 1999) (“ ‘reassignment’ must mean something more than the mere opportunity to apply for a job with the rest of the world.... ‘reassign’ must mean more than allowing an employee to apply for a job on the same basis as anyone else. An employee who on his own initiative applies for and obtains a job elsewhere in the enterprise would not be described as having been ‘reassigned. . . .’ ”). However, the ADA does not require preferential reassignment if the vacant position would constitute a promotion. See EEOC Notice, at Question 24. Reassignment must be considered not just in the single facility in which the injured nurse previously worked, but at all of the employer’s locations. EEOC Notice, at Question 27 (employer’s obligation to reassign is not “limited to those vacancies within an employee’s office, branch, agency, department, facility, personnel system (if the employer has more than a single personnel system), or geographical area”). Disabled nurses still have a wide range of skills that can be deployed in a variety of positions such as medical coding, auditing, patient interviewing (including pre-visit calls), training other health care workers, quality assurance, supply management, infection control, and many more. In addition to the medical skills mentioned above, hospitals have many stationary (e.g., administrative) positions that an injured nurse could perform effectively. Frequently, employers do not consider all of these potential positions that a disabled nurse can successfully occupy. One overlooked position is case manager, with duties such as providing day-to-day case management to patients by “documenting the costs of care, preparing reports regarding a plan of care, and identifying and implementing medical services to meet the needs of” patients. Rieve v. Coventry Health Care, Inc., 870 F. Supp. 2d 856, 864 (C.D. Cal. 2012). A case manager position utilizes nurses’ wealth of medical knowledge and patient interaction skills without significant physical exertion. A good-faith effort by health care employers likely would uncover similar positions within their organizations should reassignment be necessary. In general, “Employers, who fail to engage in the interactive process in good faith, face liability for the remedies imposed by the [ADA] if a reasonable accommodation would have been possible.” Humphrey, 239 F. 3d at 1137-38 (internal citations and quotation marks omitted).

III. Workers’ Compensation Compliance Does Not Equate to ADA Compliance. 

Because nurses are frequently injured on the job, they often file a claim for workers’ compensation benefits in conjunction with taking a medical leave. A common mistake committed by health care employers is substituting compliance with a workers’ compensation statute for compliance with the ADA. This mistaken belief can lead to costly liability. The authors of this article represented a registered nurse in a disability accommodation action against her health care employer for failure to timely accommodate her disability. She injured her back at work and went on leave. When she returned, she was reassigned because her physical restrictions prevented her from serving in her previous position. After three months, however, she was notified that she would be put on indefinite, unpaid leave until her restrictions were determined to be “permanent” by the workers’ compensation medical examiner—a process that can take years. Indeed, she was forced out on unpaid leave for 19 months without any attempt by the employer to explore reasonable accommodations such as reassignment to a different position. Conflating ADA obligations with workers’ compensation obligations, or those under leave laws or other statutory schemes, can lead to liability. In the case just discussed, the nurse was forced out of her job without any consideration of a reasonable accommodation (of which there were many possible) because of a mistaken belief that no accommodation was necessary until the workers’ compensation process had been completed.

IV. Conclusion. 

A prudent health care employer will ensure that its ADA policy is reviewed for compliance with the ADA’s demanding requirements. If you employ nurses, you should be helping disabled nurses to keep utilizing their valuable talents and experience in your service, and in service of your patients.

Ninth Circuit Holds that Your Disability Leave Application May Not Deprive You of the Right to Reasonable Accommodations

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.