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In today’s exciting legal blog, our employment discrimination lawyers look at the recent United States Court of Appeals for the Tenth Circuit case, Freeman v. City of Cheyenne, No. 23-8022, 2024 WL 464069 (10th Cir. Feb. 7, 2024), to explore whether a request for leave or time off can be a reasonable disability accommodation under the Americans with Disabilities Act (“ADA”).

In February 2016, Denise Freeman started working as the Human Resources Director for the City of Cheyenne. By January 2017, Mayor Marian Orr was elected and became her direct boss. As time went on, Freeman’s relationship with Mayor Orr deteriorated to the point of causing Freeman to experience anxiety, burnout, and exhaustion. Seeking help, Freeman saw a doctor, who diagnosed her with depression, anxiety, and insomnia worsened by work stress. It’s clear that Freeman’s job required her to be at work for at least 40 hours a week and to interact with her coworkers. So, working part-time or from home wouldn’t solve the problem. That’s why taking leave was the only reasonable option. This led to her taking six weeks off under the Family and Medical Leave Act (“FMLA“), which was renewed for another six weeks.

On July 16, 2018, the day before her FMLA leave ended, Freeman emailed Mayor Orr and her Chief of Staff to say she couldn’t come back to work yet because of her disabilities. She mentioned she had some vacation time left until around July 27 and further requested more sick leave from the sick bank as an accommodation. However, because her request didn’t have a doctor’s approval, Mayor Orr denied the request. At the same time, Mayor Orr terminated Freeman’s job but told Freeman she could reapply for other positions when she was ready to return to work.

Freeman then sued for wrongful termination and disability discrimination based on the employer’s failure to engage in the interactive process and failure to provide her a reasonable accommodation.

What is the interactive process?

Under the ADA, the interactive process refers to a specific procedure that employers must follow when an employee or job applicant requests an accommodation for a disability. The ADA requires covered employers (those with 15 or more employees) to provide reasonable accommodations to qualified individuals with disabilities, unless doing so would cause undue hardship to the employer.

The interactive process involves a collaborative effort between the employer and the individual with a disability to determine what accommodations are necessary and effective. An employer’s failure to engage in the interactive process or provide a reasonable accommodation may result in a claim for disability discrimination.

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How does an employee start the process to get a disability accommodation at work?

The process commences when an employee or job seeker requests accommodation due to a disability. This request need not be in writing and can be communicated verbally or through alternative means. To initiate the employer’s obligation to engage in the interactive process, the individual must notify the employer of their disability and express their intention to continue working, while also suggesting potential reasonable accommodations. Upon such notification, the employer is responsible for initiating the interactive process. Even if an employer fails to initiate this process, an employee’s disability claim under the ADA may be dismissed during summary judgment unless the employee can demonstrate the feasibility of a reasonable accommodation.

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What is a reasonable accommodation under the ADA?

A reasonable accommodation, as defined by the ADA, refers to any modification or adjustment to a job, the work environment, or the way things are usually done that enables a qualified individual with a disability to perform the essential functions of their job. This accommodation must not impose an undue hardship on the employer. To establish a prima facie case for both her failure-to-accommodate claim and her discriminatory discharge claim, the employee needs to demonstrate, among other things, that they are “otherwise qualified.” The ADA defines a “qualified individual” as someone who, with or without reasonable accommodation, can carry out the essential functions of the job they hold or seek. The key consideration is whether the individual can perform these essential job functions, with or without accommodations, either at the time of the requested accommodation or adverse employment event, or in the near future. It is the responsibility of the employee to demonstrate that a suggested accommodation is reasonable on its face. An accommodation proposal is not considered reasonable if it does not enable the employee to fulfill the essential functions of the job in question.

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Is a request for leave a reasonable accommodation under the ADA?

It depends. A request for leave can potentially be considered a reasonable accommodation under the ADA, depending on the circumstances. If an individual with a disability requires time off from work due to their disability, such as for medical treatment or recovery, requesting leave may indeed be a reasonable accommodation. However, whether a leave request is considered reasonable depends on factors such as the nature of the disability, the essential functions of the job, the duration of the leave, and whether the employer can reasonably accommodate the absence without causing undue hardship.

The requested leave must be finite and have a definite duration. If an employee requests indefinite leave or an excessive amount of time off, it will not be considered a reasonable accommodation under the ADA. A reasonable accommodation pertains to those adjustments that presently, or in the near future, enable the employee to fulfill the essential functions of their job. Hence, it is incumbent upon the employee to inform the employer of the expected duration of the impairment, not just the duration of the leave request. Without clarity on the expected duration of the impairment, employers cannot assess whether the employee will be able to perform essential job functions in the foreseeable future, thereby impacting the determination of whether the leave request constitutes a reasonable accommodation.

Ultimately, each situation must be evaluated on a case-by-case basis, taking into account the specific circumstances and needs of the individual and the employer.

In Freeman, the United States Court of Appeals for the Tenth Circuit affirmed the District Court’s dismissal of Freeman’s failure to accommodate claims:

“Freeman’s request for additional leave was not a reasonable accommodation because she failed to indicate the expected duration of her impairment, stating only that she was ‘unable to return to work,’ and ‘not yet able to return to work.’”

Id. at *4 (citation to the record omitted).

The lesson to be learned is that it is better to request a limited time off with a doctor’s note and extend later if needed than to just leave the request open ended.

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What should I do if I was fired in retaliation for requesting a disability accommodation at work?

The best and most important thing you can do is to consult with qualified employment law attorneys. Spitz, The Employees Law Firm stands out as an excellent choice to represent employees in failure to accommodate cases due to its expertise, accessibility, and commitment to client success. Firstly, the firm’s specialization in employment law ensures that they possess a deep understanding of the legal complexities surrounding failure to accommodate claims. With a dedicated focus on this area of law, Spitz provides tailored legal strategies and effective advocacy for clients facing accommodation challenges in the workplace. Additionally, the firm’s no fee guarantee underscores its dedication to making legal representation accessible to all. This commitment to client affordability reflects the firm’s ethos of prioritizing client welfare above all else. Along these lines, Spitz’s free initial consultations enables prospective clients to receive personalized legal advice and explore their options without financial commitment. Spitz’s demonstrated experience in successfully trying cases to juries instills confidence in its ability to effectively advocate for clients in court. With a proven track record of securing favorable outcomes through trial advocacy, Spitz, The Employees Law Firm possesses the litigation skills and courtroom expertise necessary to navigate complex legal proceedings and achieve justice for its clients.

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The information provided on this disability and wrongful firing blog is for general informational purposes only and should not be construed as legal advice regarding your termination nor particular failure to accommodate claim. Viewing or accessing this blog does not create an attorney-client relationship to address your employment rights at work. If you were fired today, you should seek professional legal advice tailored to your specific employment circumstances before making any legal decisions. The author and publisher of this blog are not liable for any actions taken based on the information provided herein.

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