Normally, if you hear that an employee was on medical leave for a stroke, completed rehab, wanted to return to work and that the employer said “No”, you might automatically that the employer’s response is an FMLA or ADA violation, or both. Not always. I often write about cases that allow us to learn from another employer’s mistakes. This time we get to learn from what an employer did right. (I admit it also helped that some of the facts happened to be helpful to this employer, but let’s not split hairs.) Read on to learn what this employer did right and what you can learn.
(image from winnipeg-chamber.com)
The case is Stanley v BP Products North America, Inc, aka BP-Husky Refining, LLC, 6th Circuit Dec 4, 2018. Here’s the short-hand for what went down. Morris Stanley has worked for BPPNA in its refinery since the 1976. During the relevant time period he was an operator in oil movement and storage. His tasks involved a fair amount of physical labor. Mr. Stanley suffered a serious stroke in November 2010. He completed rehabilitation and sought to return to work approximately one year later. Initially Mr. Stanley’s own doctor provided a note releasing him back to work. Pursuant to the terms of an applicable collective bargaining agreement, BPPNA, at its own expense had Mr. Stanley undergo a medical exam by a company-designated physician to determine if he was capable of returning to work. The company physician felt that he could not return to his job, but could work only “in an office setting performing paperwork or simple manual tasks.” BPPNA had so such positions available at the time.
Both the company physician and BPPNA’s H.R.Manager reached out to Mr. Stanley’s doctor to advise him of the job’s essential functions and the deficits they saw that they believed would render Mr. Morris unable at that time to safely perform his job functions. The treating physician responded with a note that said:
[Stanley] is able to return to work if a position was available with the following
restrictions[:] No climbing, balancing, twisting, lifting, pushing or operating heavy
machinery. If a position such as this is unavailable, it is my professional opinion that Mr.
Stanley’s long term disability should be extended until he has fully regained his strength.
Again, however, BPPNA did not at that time have such a position available.
Approximately one year later, the company physician again examined Mr. Stanley and cleared him to return to work without restrictions, and he apparently is still working at BPPNA today. Mr. Stanley filed a disability discrimination claim under the ADA . The U.S. District Court in Ohio granted summary judgment to BPPNA, ruling that: (1) “Stanley putforth no facts to demonstrate he was able to perform the essential functions of his job in August 2011 contrary to Dr. Brue and Dr. Smallwood’s medical opinions,” and therefore could not establish a prima facie case of disability discrimination, and (2) even if Stanley had made out a prima facie case, he did not show that BPPNA’s reliance on the medical opinions was a pretext for discrimination. Mr. Stanley appealed to the 6th Circuit Court of Appeals, which affirmed the District Court’s ruling. Here’s the reasoning:
The court cited BPPNA’s compliance with all requirements laid out in the Collective Bargaining Agreement, finding that its compliance “tends to show that its reasons for not returning Stanley to work were not a pretext for disability discrimination”. The court also noted that Mr. Stanley at no time offered evidence that he was in fact able to perform his essential job functions in 2011. In 2012 both doctors cleared Mr. Stanley to return to work, and he did so without any argument from BPPNA. Finally, the court also noted that there was no evidence of any reason that either medical opinion was less than reliable. Therefore, BPPNA’s reliance on the doctors’ opinions was not a pretext for disability discrimination and therefore, the court affirmed summary judgment in favor of BPPNA and dismissing Mr. Stanley’s disability discrimination claim.
One other point I want to insert: Notice that the case discusses the ADA and not the FMLA. Initially, Mr. Stanley probably was on FMLA leave, but remember that FMLA only grants 12 weeks’ (unpaid) job-protected leave. Those 12 weeks had long since expired, and so additional leave and subsequent return to work issues were evaluated under the ADA and applicable state laws only.
OK, let’s cut to the chase: What can you do when you have concerns about whether an employee seeking to return from leave can safely perform his or her essential job functions? Here are some steps you can take:
- Review your current policies and procedures to see if the actions you are contemplated are consistent;
- Either way, document everything;
- Review past practices in similar situations. Are the actions you are contemplating consistent there? If not, do you have a justification? If so, document that as well. If you cannot justify the difference and if there has not been a clearly communicated policy change since the last time you had a similar situation, you could be opening yourself up to discrimination allegations if this employee is in a protected class (under anti-discrimination laws);
- Have someone other than the employee’s direct supervisor speak with the employee’s treating physician, specifically addressing essential job functions and any concerns;
- If your procedures require it or if you have the resources, consider sending the employee to a health care practitioner of your choosing. If you do so and if your and the employee’s doctor disagree, consider calling in a specialist;
- Whatever you decide, make sure you document your reasons and can produce the medical evidence you relied upon in making the decision;
- Make sure you are consulting with competent employment counsel throughout the process;
- Enjoy your holidays!
Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.
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