Are employers required to provide reasonable accommodations to an employee to facilitate his or her return to the same or equivalent position at the conclusion of an FMLA leave? According to a recent decision from the Third Circuit Court of Appeals, the answer is no, provided the employee is unable to perform the essential functions of his job position. The case, Macfarlan v. Ivy Hill, provides important guidance for employers who must make such determinations upon an employee’s return from FMLA-protected leave.
Plaintiff Alan Macfarlan worked as a maintenance director at Defendant Ivy Hill Rehabilitation and Nursing Care. On January 24, 2008, Macfarlan had a stroke, and on January 29, began a 12-week leave under the FMLA, which was set to expire on April 22. Beginning in February 2008, and continuing until August 2008, Macfarlan received short-term disability benefits from his insurer, Unum. On April 16, Macfarlan’s treating physician cleared him to return to work starting on May 1, but with the conditions that he not work more than four hours per day and that he not lift or otherwise move loads in excess of twenty pounds. After being notified by Ivy Hill’s administrator that part-time work was not available, on April 17, Macfarlan’s doctor cleared him to work full-time, but did not change the lifting restriction. On or about April 20, Ivy Hill terminated Macfarlan’s employment and notified him that he would not be hired back with any lifting restrictions. Macfarlan thereafter initiated suit, alleging that Ivy Hill violated the FMLA by refusing to allow him to return to work on April 17, once his doctor cleared him to work full-time, albeit with restrictions.
Family Medical and Leave Act
The FMLA makes it unlawful for an employer, among other things, “to interfere with, restrain, or deny the exercise of or attempt to exercise, any right provided under this [statute].” The FMLA further provides that any employee who takes FMLA leave “shall be entitled, on return from such leave . . . to be restored by the employer to the position of employment [previously] held by the employee . . . or . . . to an equivalent position.” Notably, however, the FMLA does not require “an employer to provide a reasonable accommodation to an employee to facilitate his return to the same or equivalent position at the conclusion of his medical leave.”
District Court Decision
The District Court concluded that Macfarlan was precluded from arguing that, at the time he sought restoration, he was able “to perform the essential functions” of his job, as required by the FMLA, despite his physician’s restrictions. The District Court concluded as much based upon the doctrine of judicial estoppel, which prevents a litigant from asserting a position inconsistent with one that he has previously asserted in the same or in a previous proceeding. The inconsistent position referenced by the District Court pertained to Macfarlan’s representations to Unum in connection with his application for short-term disability benefits. There, Macfarlan submitted documentation from his physicians that stated “he was unable to perform the material duties of his regular occupation.” The issue on appeal was whether (a) Macfarlan in fact made inconsistent representations, and (b) if he did so, whether he could nonetheless provide an adequate explanation for the inconsistency.
Third Circuit Decision
The Third Circuit determined based on the documentation Macfarlan submitted to Unum and Unum policy that disability benefits are provided “while you are unable to perform the material duties of your regular occupation” that there was no question that Macfarlan did in fact take the position vis-à-vis his insurer that he was medically unable to perform his occupation’s material duties. The Appellate Panel quickly dismissed Macfarlan’s attempts to explain this inconsistency, stating that his two claims “crash face first against one another, and the first estops the second.” As a result, the Court affirmed the District Court’s denial of Macfarlan’s FMLA claim.
Although largely fact-sensitive, the Macfarlan opinion is a noteworthy victory for employers as it reaffirms an employer’s right to refuse reinstatement under the FMLA to an employee who cannot otherwise perform the essential functions of the job. The Court’s decision reflects the fact that employers are not legally obligated by the FMLA to provide reasonable accommodations to employees to facilitate their return to work at the conclusion of their FMLA leave. It is also worth noting that Macfarlan apparently did not request an accommodation for his weight-lifting restriction. Employers remain obligated by the Americans with Disabilities Act and the laws of a number of states to assess whether requests for accommodation by disabled employees returning from leave are reasonable and should thus be granted.
In light of the Macfarlan case, employers should review their internal leave policies to ensure that they comply with the requirements of the FMLA and other applicable laws. Employers are also reminded to regularly update their job descriptions and requirements, so as to place themselves in the best possible position to withstand lawsuits such as the instant case. As always, before taking employment action against an employee on or returning from job-protected leave, employers should consult with legal counsel to ensure they have complied with legal obligations under the FMLA, ADA and other applicable laws. The attorneys in the Gibbons Employment & Labor Law Department regularly assist employers in these reviews and other employment and labor matters.
Michael J. Riccobono is an Associate in the Gibbons Employment & Labor Law Department.