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.
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