Extending medical leave beyond the FMLA period may be an UN-reasonable accommodation under the ADAAA, according to a recent decision of the US 7th Circuit Court of Appeals. The court wrote: “ADA is an anti-discrimination statue, not a medical-leave entitlement.” And it said that since the purpose of reasonable accommodation is to allow an employee to work, which a medical leave does not do, then a leave does not accomplish the law’s purpose. However, the EEOC opposes the position of the court, and is unlikely to change its view that a long-term leave IS a reasonable accommodation when it is: (a) of specific duration, (b) requested in advance, and (c) likely to result in the employee being able to perform essential job functions upon return.
ATTENTION ALL CLINICIANS and CLAIM PROFESSIONALS: Please notice this one key fact in the case before the court. A guy exhausted his 12 weeks of FMLA leave during the “conservative care” phase of treatment for his back pain. In fact, he had his back surgery on the LAST DAY of his FMLA leave — which was protecting his job!
We really have to think more about the intersection between the calendars of “evidence-based medical care” and job loss. For most of the common musculoskeletal problems (like straightforward back, knee, shoulder and ankle pain for example), the scientific evidence says that the doctor should begin by prescribing simple things like aspirin or motrin, ice packs, physical therapy, and exercise. Unless there are clear signs of a potentially dangerous or progressive problem, the best thing is to wait for 6 weeks and give the patient’s body time to heal itself naturally.
But maybe we should be keeping our eye on the clock, and monitoring progress more actively during that 6 weeks. When we see recovery not proceeding as hoped, we may need to ANTICIPATE the need for an orthopedic referral, make the appointment for that 6 week mark, and cancel it if things turn out better so it’s not needed. If not, we may burn through several weeks before the specialist can be seen.
In my experience, it is more typical to see the initial treating clinician SLOWLY notice the passage of time and realize that conservative care hasn’t cut it. Then they start talking to the patient about a referral to a specialist for consideration for surgery. Then, when the surgeon sees the patient, they may talk about surgery and wait for the next appointment before requesting authorization from the payer. They usually wait for a yes before scheduling the surgery — which is often some weeks in the future. Maybe somebody ought to do a study of the weeks of time lost in this process.
Or maybe you have a better idea? How do we make sure that people’s FMLA clock doesn’t run out because of an ADMINISTRATIVE delays on OUR end, not medical ones on THEIR end? Our goal is to have them NOT lose their jobs – and right now I’m afraid we are really not paying enough attention to that critically important and NEGATIVE result of an injury/illness.
Read more about the 7th Circuit Court of Appeals decision here: https://www.natlawreview.com/article/ada-not-medical-leave-entitlement-seventh-circuit-declares