Thursday, March 2, 2017


The story starts here. Plaintiff employee originally worked for Milwaukee County as a corrections officer. She started working there in 2001 and in 2005 plaintiff suffered a back injury. She transitioned to other positions in the County, where she ultimately ended up processing applications for benefits, answering phone calls, and general case management for public assistance.

Between late August and mid November of 2010, plaintiff took several consecutive leaves of absence. Some of the absences did not pertain to her back injury. Plaintiff had exhausted her FMLA leave between August 27th and October 18th. She then applied for contractual leave, and was granted contractual leave until November 5th. Plaintiff’s employer noted that “it will not be granting additional extensions of this leave” and plaintiff “was expected to return to work on Monday, November 8th, 2010.

After exhausting plaintiff’s FMLA and contractual leave, plaintiff did not return to work. But, she did send two doctors notes saying to extend medical leave absence. The notes did not provide any detail on plaintiff’s condition, treatment, or likelihood of recovery. Plaintiff’s employer set up a meeting with plaintiff and her union representative on November 18th. She indicated she still could not return to work and her employer terminated her employment on November 30th.

Plaintiff filed suit, claiming that her employer had violated the Rehabilitation Act when they rejected her request for an accommodation of “finite, unpaid leave” and instead terminated her. Defendant was granted summary judgment, and plaintiff appealed.

The Seventh Circuit Court of Appeals addressed the issue of whether plaintiff was an “otherwise qualified employee.” The Court of Appeals acknowledged that for the purposes of the Americans with Disabilities Act and Rehabilitation Act, regular attendance is an essential function of many jobs. While the rule has exceptions, the 7th Circuit didn’t find an exception in this case. The decision said that plaintiff’s employment position required regular attendance and plaintiff did “not provide any evidence that attendance was not an essential function of the job.”

Most employers understand that when an employee cannot immediately return to work after exhaustion of their entitled leave that the employer must evaluate whether the employee is entitled to a reasonable accommodation under the ADA. That consideration includes whether the employee is covered by the ADA and whether a reasonable accommodation exists. Rarely (I won’t say never because nothing is certain) is it reasonable for an employee to request an indefinite leave because they are unsure of whether or when they can return. Here, plaintiff also did not offer any evidence as to her recovery time. Plaintiff’s doctor’s notes had no information as to her condition and treatment. The 7th Circuit found these to be insufficient to support a reasonable accommodation even if they were more informative. Plaintiff lacked the necessary evidence to avoid summary judgment. She could not prove that a trier of fact would find that with additional leave she would be able to return to work on a regular basis.

Because plaintiff could not prove she was an “otherwise qualified” employee, the 7th Circuit Court did not have to address whether the accommodation request was reasonable. Employers should understand how the accommodation request process works in order to properly observe employer administrative aspects of employment.