Recently there has been an increase of reported cases involving employees who require an extended leave of absence as a reasonable accommodation request and suffer repercussions at the workplace. The Family and Medical Leave Act (FMLA) provides qualified employees of qualified employers to take up to 12 weeks of time off from work during a specified 12-month period if the employee has a serious health condition that makes the employee unable to perform the functions of a job. The FMLA provides that a qualifying employer must hold an employee’s job open for the period of FMLA leave. When the 12 weeks FMLA leave expire, an employee may still be entitled to additional medical leave from work as a reasonable accommodation under the Americans with Disabilities Act (ADA), the Pennsylvania Human Relations Act (PHRA) and/or the New Jersey Law Against Discrimination (NJLAD). In Boles v. Wal-Mart Stores, Inc. (3rd Cir no. 15-3127) (May 24, 2016), a former Wal-Mart employee filed a lawsuit after he was terminated following a medical leave of absence. The case proceeded to a jury trial which resulted in the entry of a verdict in favor of the employee, including $130,000 in back pay, $10,000 in emotional distress damages, $60,000 in punitive damages and $284,251.86 in attorneys’ fees and costs.
In Boles, the employee was terminated from his position as an assistant store manager after taking medical leave prompted by a leg ulcer. The employee required an extended medical leave which went beyond the 12-week period of leave permitted by the FMLA. When the employee returned to the store on the date his treating physician cleared him for work, he discovered that he could not log onto his computer. A few days later the employee received a termination letter, notifying him that he had been terminated as of one day after he attempted to return to work, for “failure to return” to work. The employee filed a Complaint alleging disability discrimination, retaliation and failure to provide a reasonable accommodation in the form of a request to take extended medical leave, in violation of NJLAD and interference with his rights under the federal FMLA. After disposition of pretrial motions, two claims were presented to the jury; disability retaliation and failure to accommodate a request to grant extended leave. Evidence at the trial included the store manager’s email to a Human Resources Manager asking, “why we are not terminating the employee which resulted in the response that the termination would be a violation of company policy.”
The Third Circuit affirmed that the District Court’s denial of a post-trial motion and held that there was sufficient evidence in the record for a reasonable jury to find in favor of the employee on his disability retaliation claim under the NJLAD which requires that an employee establish that (1) the employee was in a protected class; (2) the employee engaged in protected activity known to the employer; (3) the employee was thereafter subjected to an adverse employment consequence; and (4) there is a causal link between the protected activity and the adverse employment consequence. The court rejected the employer’s argument that the employee had requested indefinite leave and thus had not engaged in a protected activity, noting that taking a disability/medical leave is protected by the NJLAD and the evidence supports the premise that the employee was retaliated against, as he was terminated, for engaging in that activity. The court cited to the fact that internal Wal-Mart emails discussed whether the employee could be terminated for taking leave, and his termination date for alleged “job abandonment” was after the employee attempted to return to work.
In Boles, the Court also rejected the employer’s challenge to the jury’s punitive damages award as the NJLAD permits punitive damages where there is evidence that (1) upper management’s actual participation in, or willful indifference to, the wrongful conduct; and (2) evidence that the wrongful conduct is especially egregious. The Court concluded that second-tier upper managers who were involved in their termination met these requirements because they were responsible for implementing policies and the employee attempted to contact his supervisors and others at Wal-Mart to no avail; Wal-Mart never told the employee that if he did not return by a certain date that he would be fired; and when the employee actually returned to work he was sent home and fired the next day for “job abandonment” with the termination decision being made by a supervisor to whom the employee had spoken about his expected return just weeks earlier.
Requests for accommodations for leave from work can present complex issues. For more information on workplace accommodations and disability discrimination under the Americans with Disabilities Act, the Pennsylvania Human Relations Act, and the New Jersey Law Against Discrimination see the Abramson Employment Law website at http://www.job-discrimination.com/lawyer-attorney-1126511.htm.