An employer was justified in terminating an employee based on its honest belief that the employee could not perform his job due to his medical condition. In Degraw v. Exide Technologies (10th Circuit February 20, 2012), the employee worked as a material handler and had a history of back problems predating his employment. He took FMLA leave on a number of occasions due to his non-work-related back problems.

After returning to work from FMLA leave on one occasion, the employee complained that working mandatory overtime was aggravating his back pain, resulting in him taking more FMLA leave. The company advised him not to return to work until he received medical clearance. Several months later, the employee’s own doctor lifted his restrictions, clearing him to return to work. The company’s doctor, however, refused to release him to return to work due to his restrictions. After the company could not find another job that satisfied his restrictions, his employment was terminated.

The employee filed a lawsuit claiming 1) that he was discharged in retaliation for reporting a work-related injury (the aggravation of his back pain) in violation of Kansas workers’ compensation law, and 2) that the company retaliated against him for taking FMLA leave, interfered with his FMLA rights, and failed to restore him to his position. In seeking dismissal of the case, the company asserted it terminated the employee in reliance on its doctor’s medical opinion that the employee could not safety perform his job.

With respect to his workers’ compensation claim, the Court rejected the employee’s argument that, at the time of his discharge, his personal doctors stated he could perform the job. The Court, in affirming the dismissal of his workers’ compensation claim, stated that the operative question was not whether he could in fact have performed the material handler job, but whether his employer “honestly believed” he could not perform the job. The Court also affirmed the dismissal of the employee’s FMLA claim, concluding that a disagreement as to whether the employee could perform his job does not demonstrate pretext for terminating him in retaliation for taking FMLA leave. The Court further stated that although the FMLA entitles a person returning from FMLA leave to resume his previous position, the employee had exhausted his FMLA leave long before he was terminated. The FMLA permits an employer to terminate an employee who cannot return to work after the
12 weeks of FMLA leave have expired.

Although a disability claim was not alleged in the above case, employers should keep in mind the potential interplay between the FMLA and the ADA. The FMLA permits an employer to terminate an employee who is unable to return to work after exhausting FMLA leave, but an extended leave of absence (beyond the 12 weeks of FMLA leave) may be considered a reasonable accommodation under the ADA if the employee has a disability. Employers should evaluate potential ADA implications before proceeding to terminate an employee who has not returned to work after exhausting FMLA leave.