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Legal Briefing

Employee Not ‘Otherwise Qualified’

An employer may not be required to accommodate an employee by providing infinite leaves of absences.

Joyce Whitaker worked for the Wisconsin Department of Health Services.

In 2009, Whitaker advised the department of a disability involving chronic back pain. In August 2010, Whitaker requested a two-week FMLA leave for recurrent back pain, but before returning she requested additional leave until Dec. 27, 2010, for herself and to care for a family member. The department granted Whitaker’s request until Oct. 18, 2010, when her FMLA was exhausted.

Whitaker then requested additional unpaid leave pursuant to her union contract, stating only that the leave was to take care of her father. The department granted the request until Nov. 8, 2010, and advised Whitaker that they would not grant further extensions. Whitaker submitted two doctor’s notes requesting a medical leave until Nov. 17, 2010 and a medical leave until Dec. 17, 2010.

Whitaker was terminated when she did not return to work. Whitaker sued, claiming a violation of the Rehabilitation Act. The U.S. District Court for Wisconsin granted summary judgment for the department.

The 7th Circuit Court of Appeals affirmed it, holding that Whitaker failed to establish that she was an “otherwise qualified” employee, as required by the statute, because she did not provide any evidence that attendance was not an essential function of the job. Whitaker v. Wisconsin Dept. of Health Services, Case No. 16-1807 (7th Circuit Feb. 27, 2017).

Impact: Unless an employee can show that attendance is not an essential function of the job, an employer may not be required to accommodate an employee by providing infinite leaves of absences.

Mark T. Kobata and Marty Denis are partners at the law firm Barlow, Kobata and Denis, which has offices in Beverly Hills, California, and Chicago. Comment below, or email editors@workforce.com.