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Can Employers Fire Disabled Employees While Their Request For An Accommodation Is Still Outstanding?

Concept of ADA Americans with Disabilities Act.

Having represented employment discrimination victims for more than two decades, our employment discrimination lawyers in Citrus County, Florida have learned that most employers resist providing disabled workers with an accommodation for their disability. Rarely do employers engage in good faith efforts to determine whether they can accommodate disabled employees. In some cases, employers even preemptively fire disabled workers who request an accommodation before an accommodation can be considered or recommended. In this article, our employment discrimination lawyers in Citrus County, Florida explain how the decision in King v. Steward Trumbell Memorial Hospital, 30 F.4th 551 (6th Cir. 2022) illustrates that employers are prohibited from terminating disabled employees who have requested an accommodation while their accommodation request was still outstanding.

Disabled Workers’ Rights

The Americans With Disabilities Act (“ADA”) prohibits employers from discriminating against employees on the basis of disability. Under the ADA, employers must make reasonable accommodation to the disability of an employee, unless the employer can demonstrate that such an accommodation would impose an undue hardship on the conduct of its business. Under the ADA, an employer commits unlawful discrimination if the employer does not reasonably accommodate disabled workers. Thus, as the court in Selenke v. Med. Imaging of Colo., 248 F.3d 1249 (10th Cir. 2001) explained, the ADA “establishes a cause of action for disabled employees whose employers fail to reasonably accommodate them.”

Employees bear the initial burden of requesting an accommodation. As observed by the court in E.E.O.C. v. C.R. England, Inc., 644 F.3d 1028 (10th Cir. 2011), “although the notice or request does not have to be in writing, be made by the employee, or formally invoke the magic words ‘reasonable accommodation,’ it nonetheless must make clear that the employee wants assistance for his or her disability.” Once an employee requests an accommodation, the employer has an obligation to engage in an interactive process to try to determine whether the employer can accommodate the employee’s disability. As the court in Rorrer v. City of Stow, 743 F.3d 1025 (6th Cir. 2014) explained, the employer must participate in “good faith” and conduct an “individualized inquiry” into possible accommodations. Thus, as determined by the court in Hendricks-Robinson v. Excel Corp., 154 F.3d 685 (7th Cir. 1998), the ADA “imposes a duty upon employers to engage in a flexible, interactive process with the disabled employee’s accommodation need so that, together, they might identify he employee’s precise limitations and discuss accommodations which might enable the employee to continue working.”

Employment Discrimination Lawsuit

In King, a woman named King brought an employment discrimination lawsuit against her former employer, Steward Trumbell Memorial Hospital (the “Hospital”), pursuant to the ADA. King claims that the Hospital violated the ADA by failing to accommodate her disability and that the failure to accommodate her disability culminated in her termination.

In 2002, King began working for the Hospital as a registered nurse. King was diagnosed with asthma as a young adult. Her asthma was often triggered by stress and seasonal allergies, causing intermittent flare-ups and severe asthma attacks. At times, those flare-ups left King unable to perform her work duties.

King’s lawsuit arises out of one of her severe asthma flare-ups that began in April 2017. Between 2016 and 2017, King worked three twelve-hour shifts each week. On April 28, 2017, King reported for her twelve-hour shift at the Hospital. But King did not complete her shift because, about eight hours into her workday, she had an asthma attack that left her unable to breathe. Over the next five weeks, King continued to suffer from severe asthma-related symptoms. At the peak of her flare-up, on May 15, 2017, her symptoms landed her in the emergency room of the Hospital seeking treatment. King could not work throughout this time, and she called in sick for the next fourteen shifts.

Employee Requests Accommodation

The Hospital uses a third-party administrator called FMLASource to handle both Family Medical Leave Act (“FMLA”) and non-FMLA leave requests. If an employee only applies for FMLA leave but does not meet the FMLA eligibility requirements, then FMLASource must consider whether the employee qualifies for non-FMLA leave. On May 19, 2017, King claims that she called FMLASource and asked for medical leave. In making a request for medical leave because of her asthma, King requested an accommodation for her disability. After calling FMLASource on May 19, 2017, King alleges that she told a human resources employee and her supervisor that she was seeking medical leave. At this point, multiple people within Hospital leadership know that King was seeking medical leave to deal with her asthma flare-up. Between May 19, 2017 and June 2, 2017, King continued to call in sick because of her asthma flare-up.

While King was trying to obtain approval for her request for medical leave, King’s supervisor called her in for a meeting and terminated her for “failure to apply timely for a leave of absence.” At that time, King still had not heard back from the human resources employee and had not received an approved leave of absence. Ultimately, the Hospital retroactively approved King’s request for non-FMLA leave between May 14, 2017 and June 1, 20217, but only after the Hospital terminated her. Thus, this retroactive approval did not give King the benefits of an approved leave, which would have included reinstatement. In other words, by granting King “leave” when she was no longer employed, King had no job to return to.

Employee Preemptively Fired

The trial court dismissed King’s ADA claim. On appeal, the U.S. Sixth Circuit Court of Appeals reversed the trial court’s dismissal and reinstated King’s ADA claim. Unlike the reversed trial court, the appellate court found that King “requested an accommodation—medical leave—to help manage her temporary asthma flare-up.” King’s request for an accommodation, the court of appeals explained, “triggered the Hospital’s duty to engage in an interactive process to determine whether it could reasonable accommodate King’s asthma flare-up.”

Unlike the reversed trial court, the Sixth Circuit found that the Hospital “prematurely halted the interactive process by terminating King while her leave request was still outstanding.” “An employer,” the court of appeals explained, “may not stymie the interactive process of identifying a reasonable accommodation for an employee’s disability by preemptively terminating the employee before an accommodation can be considered or recommended.” “And if the employer terminated the employee before fully considering the request for an accommodation,” the appellate court pointed out,” then the employer may need to reconsider the decision to terminate the employee.”

Cannot Accommodate After Discharge

In applying these principles, the Sixth Circuit observed that King’s supervisor “knew that King was trying to apply for leave.” “Despite this knowledge,” the court of appeals explained, King’s supervisor “terminated her for failing to timely seek leave, even though he knew that King was trying to do just that.” Thus, the Sixth Circuit concluded that “King sufficiently requested an accommodation, but the Hospital failed to engage in the interactive process in the wake of her requests.”

Having found that King requested a reasonable accommodation for her disability and the Hospital failed to engage in the interactive process, the Sixth Circuit then determined that the Hospital failed to provide a reasonable accommodation. The court of appeals observed that although the Hospital “retroactively approved King’s request for non-FMLA leave between May 14 and June 1,” the Hospital did so “only after the Hospital terminated her.” “Employers,” the appellate court reasoned, “cannot skirt liability by rubber-stamping a period of medical leave after terminating the employee.” “By granting King ‘leave’ when she was no longer employed,” the Sixth Circuit explained, “King had no job to return to” and, thus, the Hospital “failed to provide a reasonable accommodation.”

Citrus County, FL Discrimination Lawyers

Based in Ocala, Florida and representing workers throughout Florida, our employment discrimination attorneys in Citrus County, Florida have dedicated their practice to fighting for the rights of employment discrimination victims. If you have experienced workplace discrimination or have questions about your rights as an employment discrimination victim, please contact our office for a free consultation with our employment discrimination lawyers in Citrus County, Florida. Our employee rights law firm takes employment discrimination cases on a contingency fee basis. This means that there are no attorney’s fees incurred unless there is a recovery and our attorney’s fees come solely from the monetary award that you recover.

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