Thursday, May 22, 2008

Court rules that employee's cancer not sufficiently limiting for ADA protection

Employers often struggle with leaves of absence. The FMLA only requires 12 weeks of unpaid leave for a serious health condition. If, however, an employee has a disability covered by the ADA, an unpaid leave of absence longer than 12 weeks might be required as a reasonable accommodation. Before one can consider whether such an accommodation is reasonable or necessary, one must first address the threshold questions of whether the employee has a legally protected disability. Slane v. MetaMateria Partners, L.L.C., decided this week by the Franklin County Court of Appeals, tries to give us some guidance.

John Slane began working for MetaMaterials in October 2004. In June 2005 he was diagnosed with cancer. (Because he worked for MetaMaterials for less than 1 year, he was not FMLA eligible). He requested a 90-day leave of absence to allow for surgery, recuperation, and radiation treatment. Company policy provided a maximum of 30 days medical leave and 30 days personal leave, for a total of 60 days leave. A letter from the company to Slane dated July 22, 2005, stated that he would need to provide a written release statement from his health care provider upon his return to work.

On July 27, 2005, Slane completed a leave of absence form indicating that he began his leave on July 21, 2005, and expected to return to work October 21, 2005. The leave form was approved for a total of only 60 days leave, and specified that Slane had to provide a health care provider's release upon his return. Under company policy, if Slane did not return to work by September 19, 2005, with a release from his physician, he would be considered to have resigned.

In mid-October 2005, Slane informed his supervisor, Michael Gagel, that he was ready to return to work. Gagel told Slane that he would have to see if there was enough production for Slane to come back. Slane called again about two days later and, at that time, Gagel said that someone would be getting in touch. The next day, Slane tried to fill a prescription and was told at the pharmacy that he had no insurance. Slane called Gagel again, and Gagel told him he was checking on it. A week later, Gagel informed Slane that he did not have a job. Two days later the company confirmed that it had terminated Slane in September 2005 when he failed to return after the expiration of his approved 60-day leave of absence.

The Court found that Slane's claim failed because he did not have a legal disability. Cancer may be a disability, but to qualify as such one must show that it substantially limits a major life activity. The Court found that Slane's temporary physical impairment, albeit serious, did not rise to the level of a legally protected "disability":

Without a doubt, Slane's cancer of the right maxillary sinus was a severe disease or condition that necessitated surgery, removal of much of his right jaw, and radiation treatment. His cancer surgery left him with an "impairment" ... In terms of the duration of his physical impairments, Slane needed approximately 90 days to recuperate from treatment. The surgery left him with some difficulty in pronouncing his "s's" as well as difficulty producing saliva. After recuperating from his treatment, Slane testified that he was able to return to work with only minor limitations. The only permanent limitations were difficulty pronouncing his "s's," the need to clean his nose more frequently, and a dry mouth necessitating the need to drink water on a regular basis. Clearly, Slane presented evidence that he has a physical impairment as that term is used in the statute.

Merely having a physical impairment does not make one disabled for purposes of Ohio's disability discrimination statutes. Slane also needed to demonstrate that his physical impairment substantially limits a major life activity. "Substantially limits," as used under the ADA suggests "considerable" or "to a large degree." ... In terms of major life activities, Slane testified that, by October 2005, he could see, hear, think, climb, grasp, lift, sit, rise, walk, eat, breathe, swallow, brush his teeth, brush his hair, and sleep without difficulty. ... Slane's own testimony belies his claim that his cancer substantially limits his ability to perform the major life activities of speaking, breathing, eating, drinking, or swallowing as he had alleged.

This case leaves a bad taste in my mouth. An employee, suffering from cancer, who had a piece of his jaw replaced with a prosthesis, should be protected as having a "disability." This case would allow a termination of female employee with breast cancer post-mastectomy. That result just doesn't sit right with me. At a minimum, this issue seems like a fact issue a jury should decide, not a legal issue for the court.

If Slane was disabled, the company could have had problems. While it had a clearly defined policy only permitting a 60-day maximum leave of absence, it probably should have held his job for the additional 30 days. The ADA does not require an indefinite leave of absence as a reasonable accommodation, but it does require some leave of absence. Six months is generally considered the outside parameters of what is reasonable. In this case, the company knew of a definite return date, but nevertheless stuck by its written policy of 60 days. That formalism could have gotten the company into trouble for failing to reasonably accommodate Slane's disability. On a jury of 8, at least 6 (if not all 8) would have someone close to them touched by cancer, a calculus that could have spelled doom for the company. The court bailed it out by finding that Slane did not have a disability in the first place.

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