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The case of Billups v. Emerald Coast Utilities Authority, 33 AD Cases 1312 (11th Cir. October 26, 2017) presented a challenge by an injured employee to his company’s six month limitation of leave.
Mr. Billups injured his shoulder on December 18, 2013 doing his work as a Utility Service Technician II. He felt a pop in his shoulder while opening an air-release valve. The case was accepted by the workers’ compensation carrier. Billups’ job was a very physical one, requiring use of heavy tools such as a jackhammer. He began FMLA leave on December 19, 2013.
After several months of physical therapy, Billups was referred on February 11, 2014 to an orthopedic surgeon, who scheduled Billups for a shoulder procedure. That surgery had to be postponed due to Billups’ reaction to anesthesia. The surgery finally took place on April 16, 2014. Billups’ 12 weeks of FMLA expired on March 14, 2014, but the company policy granted 26 weeks of leave for work injuries.
Following surgery, Billups was informed by his doctor that it would likely take six months for his shoulder to recover to the degree that he could perform the essential functions of the job. The need for Billups to return to work became more acute on April 30, 2014 when the county was struck by severe flooding damage to the water and sewer infrastructure. Personnel were stretched trying to cope with the flooding.
On May 27, 2014, the surgeon signed a workers’ compensation form stating Billups was restricted to sedentary duty alone. The company sent Billups a notice in early June 2014 that he would be terminated if he could not return to full duty by June 18, 2014, which was the end of his six month period of leave. Billups was offered a predetermination hearing, which he attended. Billups argued at the hearing that his surgery was delayed due to an uncontrollable health reaction to anesthesia. Emerald Coast gave Billups one day to obtain a more definitive statement from his doctor regarding his full-duty return to work date.
The very next day Billups produced a note from his physical therapist stating that he could return to work full duty after he completed physical therapy. But the anticipated discharge from PT was not until July 21, 2014. Billups was not able to get a doctor’s note saying he could return to full duty on July 21, 2014. On June 23, 2014, the company notified Billups that he was fired. The company noted that his continued absence from work was creating a hardship on the company.
It turned out that Billups did not get discharged from PT until August 13, 2014. He was not cleared by his doctor to return to work full duty until October 23, 2014. Even when the doctor cleared Billups to return to work, it was with a limitation of no lifting more than 20 pounds overhead and working with his arms close to his body.
Billups filed a law suit against his employer for failing to provide a reasonable accommodation. The district court ruled for the employer and dismissed the case. The court said that “Billups had not identified a reasonable accommodation that would allow Billups to perform the essential functions of the job.”
Billups appealed to the United States Court of Appeals, 11th Circuit, and argued that a short period of leave would have been a reasonable accommodation under the ADA. The Court said, “Billlups has not shown his requested accommodation would have allowed him to return to work ‘in the present or in the immediate future.’” The Court added, “But an accommodation is unreasonable if it would only allow an employee to ‘work at some uncertain point in the future.’” The Court added:
As Billups foreshadowed at the hearing, his physician in mid-July 2014 limited him to lifting no more than twenty pounds overhead and advised him to complete all work with his arms close to his body. According to Dawson (Department Director), those limitations would have prevented Billups from performing the essential functions of the UST-2 position. Although Billups believed he could perform the job with those limitations, his testimony reflects that he could only perform ‘most’ of the work, but not all of it. And even a ‘relatively infrequent inability to perform a job’s essential functions is enough to render a plaintiff not a ‘qualified individual’ under the ADA.
The Court interpreted Billups’ request for additional leave under the ADA as a request for indefinite leave. Virtually all courts have held that requests for indefinite leave are not reasonable.
The Court also rejected Billups’ argument that Emerald Coast’s six-month leave policy for work-related injuries violates the ADA because, according to Billups, it does not consider individual circumstances. The Court commented, “While Emerald Coast’s policy provides, as a general rule, six months for an employee who suffered an on-the-job injury to return to employment, it also expressly incorporates an individual assessment of the employee’s ability to work.” The Court noted that the Department Head in consultation with HR may extend time past six months in certain circumstances.
This case is helpful because it focuses on a situation where the request for additional leave was actually for a rather short period of time, perhaps a month or two, just until PT finished. Yet, the employer correctly considered this as a request for indefinite leave because there was no expectation that the employee would be able to return to full duty even with the additional leave being granted. The Court of Appeals concluded that just because the request for leave was short in duration, that fact alone does not make it reasonable if the employee cannot show he or she would be able to return to work and perform all the essential job functions.
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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.