The Eighth Circuit Court of Appeals recently reminded us of the need to listen carefully to employees discussing their medical issues because they may be seeking accommodation without actually using that word.
Rochelle Garrison was a lead sales associate at a Dollar General store and was one of four “key holders” who had to coordinate their schedules to make sure that one of them was available to open and close the store.
Employee Asks For Time Off
As she continued to struggle with migraines, anxiety and depression, Garrison texted her supervisor, Sandra Bell, to ask how she could request a leave of absence.” Bell replied that she was not certain but would ask the District Manager.
Garrison followed up by text a week later and Bell responded with three critical points: (1) there was no leave of absence available; (2) Garrison could remain employed as long as she could perform her job and “not be sick all the time,”; and (3) she should read the employee handbook.
Garrison missed a shift in the following week for health issues and requested vacation for the remainder of that week. Bell refused to grant the request because two of the other three key holders were scheduled to be gone. Garrison then told Bell that she was quitting in order to help herself “get better.”
Garrison sued for a variety of claims, most notably disability discrimination under the Americans with Disabilities Act (ADA) and interference with her rights under the Family and Medical Leave Act (FMLA). The trial court dismissed the case and Garrison appealed to the Eighth Circuit Court of Appeals (which covers Minnesota).
There’s No Magic to It
The Eighth Circuit reversed the dismissal of the ADA claim. They explained that to prevail on the claim, Garrison would have to show:
(1) The company knew she was disabled; (2) she requested an accommodation; (3) the company failed to engage in an interactive process” regarding possible accommodations; and (4) her disability could have been reasonably accommodated.
The Court had no difficulty on the first point, noting that Garrison and Bell had discussed and texted about Garrison’s medical issues and doctor’s appointments.
The Court then explained that while Garrison did not actually use the term “accommodation”, such “magic words” are not necessary. The determining factor is simply whether the employer was “aware of the need for an accommodation.” In this instance, Bell knew about Garrison’s medical issues, doctor’s appointments and requests for a leave of absence. Thus, a reasonable jury could conclude that Garrison had sufficiently requested an accommodation even though she did not use those precise words.
If Garrison’s request was sufficient to constitute a request for accommodation, it would be reasonable to find that the company did not respond appropriately. Simply referring Bell to the employee handbook, without some sort of further assistance, just was not enough to satisfy the employer’s obligation to engage in an interactive process to consider the accommodation request.
Finally, the Court found that had the company engaged in an interactive process, it is reasonable to conclude that they could have identified a suitable accommodation. Since Bell testified that she would have “made it work” if Garrison had been entitled to FMLA leave, it is reasonable to believe they could also have done so to accommodate Garrison’s disability.
Accordingly, the Eighth Circuit concluded that if this case were to go to trial, a reasonable jury could find for that Garrison met all her obligations under the ADA. They therefore remanded the case back to the lower court to permit such a trial to proceed.
Same Facts, Different Result
Interestingly, on these very same facts, the Court affirmed the dismissal of Garrison’s FMLA claim. Unlike the employer’s obligation to initiate the interactive analysis under the ADA, the Court explained that employees seeking FMLA leave generally must adhere to the employer’s specific method for requesting leaves of absence. Under the company handbook in this case, employees were obligated to notify their manager and then contact the company’s third-party benefits administrator to initiate the process for a leave. Garrison failed to follow this procedure choosing instead to simply resign.
Therefore, even though Garrison’s supervisor told her that there was no leave available to her, she could still have read the handbook, contacted the administrator and initiated the procedures for a leave without the supervisor’s approval. Her failure to follow the prescribed procedure doomed her FMLA claim.
This decision is a bit curious. If the employee’s words were sufficient to trigger an interactive accommodation process under the ADA, why weren’t they also enough to spark the employer’s obligation to initiate the FMLA certification process? As is often the case, the answer is in the fine print. The ADA does not require employees to follow any particular process to seek out an accommodation but FMLA does in fact require that the employer’s leave-request procedures be invoked.
This does not mean that employees can be left completely to their own devices. Once an employer concludes that an employee may be asking for a FMLA leave (despite the absence of “magic words”), the employee should be advised of the availability of FMLA leave and be advised of the proper means of requesting such a leave. It is then up to the employee to follow the procedure.
Also, it is best not to tell the employee that FMLA is not available when it actually is – the employer got away with that one in this case but a similar result cannot be guaranteed.