Managing an employee’s extended leave of absence is an employer’s worst nightmare – especially when the employee keeps submitting vague doctor’s notes extending the leave of absence, but providing no additional information about when (if?) the employee will be able to return to work.
When faced with this situation, many employers are uncertain of what they can do – especially since terminating the employee too early can readily lead to a discrimination lawsuit. As a result, in lieu of termination, most employers grant the extensions of leave. However, in a recent case (Whitaker v. Wisconsin Dept. of Health Services), the Court upheld the termination of an employee who only submitted vague and ambiguous doctor’s notes extending her ADA leave.
In this case, the employee had been employed as an Economic Support Specialist for Milwaukee County in Wisconsin. The employee’s job was not overly complicated or specialized. She was a member of the team responsible for providing public assistance to county’s citizens. Her work included processing applications for benefits and answering phone calls.
In the summer of 2010, this employee went on FMLA leave for a medical condition (severe back pain). When her FMLA leave was exhausted, instead of returning to work, the employee submitted a doctor’s note extending her leave of absence by 9 days. The note simply read:
medical leave of absence until 11/17/10
Despite the vague nature of the note, the employer extended the leave of absence.
One week later, the employee submitted a second (equally vague) doctor’s note extending her leave of absence for an additional month. This note stated only:
medical leave of absence until 12/17/10
Following its receipt of the second note, the employer contacted the employee and informed her that it was considering terminating her employment. However, before any final decision was made, the employee was asked to attend a meeting to discuss her situation. The employee attended the meeting, but aside from reiterating that she was unable to return to work, the employee provided no further information or documentation supporting her need for additional leave.
The employer terminated the employee and the employee later sued the employer for discrimination in violation of the Americans with Disabilities Act.
The Court’s Finding
The court ruled that the employee’s termination was not discriminatory and dismissed the employee’s claims. In reaching its decision, the Court found that attendance was an essential function of the employee’s job and reaffirmed the basic principle that an employer can expect employees to report to work. Since this employee was unable to perform an essential function of her job, she was not protected under the ADA.
In support of its decision, the Court explained:
“[Joyce] did not offer any evidence regarding the effectiveness of her course of treatment or the medical likelihood of her recovery. The only medical documents she supplied were two terse doctor notes. One stated “medical leave of absence until 11/17/10” and the other stated “medical leave of absence until 12/17/10.” These notes did not explain whether she was even receiving treatment, let alone the likely effectiveness of the treatment.”
Take Home for Employers:
While this decision does not support the proposition that an employer can “fire at will” when faced with a vague doctor’s note and an employee seeking to extend an unpaid medical leave of absence, it does give employers important guidance on how to handle these situations.
Most importantly, this case teaches employers that they are allowed to be more assertive and seek more information when in receipt of a vague doctor’s note. The Court set forth the “bare minimum” information that an employer can expect to see in a doctor’s note:
- Whether the employee is receiving treatment
- The likely effectiveness of the treatment
- The medical likelihood that leave would enable her to return to work regularly
The implication – when in receipt of a vague doctor’s note, as a part of the interactive process, employers should follow up with the doctor to at least attempt to receive the above information.
This implication is supported by the EEOC’s resource document “Employer-Provided Leave and the Americans with Disabilities Act”, which supports the idea that employers can seek information from the employee’s doctor (with the employee’s permission) before making a decision on an employee’s leave request. Specifically, the employer can ask for:
- the specific reason(s) the employee needs leave (for example, surgery and recuperation, adjustment to a new medication regimen, training of a new service animal, or doctor visits or physical therapy);
- whether the leave will be a block of time (for example, three weeks or four months), or intermittent (for example, one day per week, six days per month, occasional days throughout the year); and
- when the need for leave will end
In addition, employers may specifically ask the employee’s doctor to respond to questions drafted by the employer and designed to enable the employer to understand:
- the need for leave;
- the amount and type of leave required; and
- whether reasonable accommodations other than (or in addition to) leave may be effective for the employee (perhaps resulting in the need for less leave).
Finally, when the employee is seeking an extension of ADA leave, the EEOC’s guidance confirms that employers are able to obtain even more information regarding the employee’s need for additional leave. According to EEOC, if an employee requests additional leave that will exceed an employer’s maximum leave policy or is continuous in nature, the employer should again engage in an interactive process, including obtaining from the health care provider:
- Medical documentation specifying the amount of the additional leave needed;
- The reasons for the additional leave;
- Why the initial estimate of a return date proved inaccurate; and
- Information the employer considers relevant in determining whether the requested extension will result in an undue hardship
Finally, when communicating with an employee (or his/her doctor) about this issue, we recommend that you work with an HR Professional or qualified employment attorney.