Work in the Time of COVID-19: FAQs for Employers

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Last week, the United States Court of Appeals for the Fourth Circuit—the court that decides federal appeals from South Carolina, North Carolina, Virginia, West Virginia, and Maryland—issued an unpublished opinion that serves as a reminder to employers of the benefit of staying in close contact with employees out on disability-related leave, and continuing the interactive process with such employees to bring them back to work.  The case, entitled Thomas v. City of Annapolis, Maryland, involved a former police officer with the City of Annapolis who sued the City alleging that he was wrongfully terminated because of his race and disability, was denied reasonable accommodations for his disability, and was denied his request for disability retirement because of his race.

The undisputed facts revealed that Thomas injured his knee and lower back while on the job, worked a period of light duty as a records specialist while recovering from that injury, claimed he reinjured his knee the day after he returned to full duty, was again placed on light duty for the injury, and was permanently offered the records specialist position he had been assigned while on light duty.  Thomas declined the records specialist position, so he was placed on leave.  Thomas filed a charge of discrimination with the EEOC alleging retaliation, and race and disability discrimination.  After exhausting his paid leave and short-term disability benefits, the City placed Thomas on unpaid leave status.

While on unpaid leave, Thomas did not update the City concerning his medical status and refused to answer or return calls from the City requesting an update.  As a result, the City eventually terminated Thomas for poor work performance due to Thomas’s refusal to return to work and failure to stay in contact with his supervisors while on unpaid leave.

After his termination, Thomas filed a lawsuit against the City alleging that he suffered race and disability-based discrimination as well as retaliation.  The federal trial court dismissed all of Thomas’s claims at summary judgment, and the Fourth Circuit affirmed.  With respect to the discrimination-based claims, Thomas cited his performance reviews and the fact that he did not receive any pre-termination discipline (e.g., counseling, verbal warning, write-up) as evidence that his work performance was satisfactory.  The Fourth Circuit rejected that argument, noting that it is the perception of the decision maker at the time of the adverse action that is relevant, not the self-assessment of Thomas.  Thomas did not dispute that he refused to return the City’s calls while on unpaid leave, and the Chief testified that he believed Thomas was not willing to return to work because he did not remain in contact with the Department.  Even though Thomas disagreed that his failure to remain in contact showed he was not willing to return to work, the Fourth Circuit emphasized, “it is the Chief’s assessment, not Thomas’s, that matters.” 

This case highlights the importance of engaging in the interactive process with employees while out on disability-related leave and documenting any failures of such employees to remain in contact or otherwise provide status updates on when they expect to return to work.  Although there is no bright-line test to determine exactly how much leave constitutes a “reasonable” accommodation under the Americans with Disabilities Act (ADA), keeping in close contact with employees will better allow employers to assess the reasonableness of the requested accommodation and defend against claims of failure to engage in the interactive process or accommodate a disability.  As Thomas highlights, consistently communicating with employees on disability leave might also provide a valuable defense to discrimination-based claims brought by an employee who fails to respond to employer inquiries or provide status updates while on leave.  Should you have questions about the reasonableness of an accommodation under the ADA or navigating the accommodations process, the employment law attorneys at Poyner Spruill are available to help.


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