by Laura A. Weizeorick (Spring 2017)

In Whitaker v. Wisconsin Department of Health Services, 849 F.3d 681 (7th Cir. 2017), the Seventh Circuit upheld the termination of an employee who had exhausted her unpaid statutory and contractual medical leave, yet failed to return to work.

Joyce Whitaker started working for Milwaukee County in 2001 as a corrections officer. After she suffered a back injury in 2005, she became an economic support specialist in the Wisconsin Department of Health Services (“Department”). Her responsibilities included processing applications for public assistance benefits. As a result of her back condition, Whitaker requested an accommodation from her employer on December 8, 2009, to stand and stretch for five minutes once every thirty minutes during the workday. The Department approved her request.

Eight months later, on August 27, 2010, Whitaker requested two weeks of continuous leave under the Family and Medical Leave Act (”FMLA”) due to her “recurrent back pain.” Her request was approved, and the Department set her return date for September 10, 2010. On September 8, 2010, Whitaker requested additional FMLA leave until December 27, 2010, to take care of a family member and because of her medical condition. The Department authorized FMLA leave through October 18, 2010, at which point her 12-week statutory leave would be exhausted for the year. The Department advised Whitaker that although her 12 weeks of FMLA would be exhausted, her contract allowed her to request an additional 30 days of unpaid leave if she desired. The contractual provision, however, stated that requests for such leave were to be made as far as possible in advance of the date the leave was to begin. Despite the clear instructions, Whitaker waited until her FMLA leave expired on October 18, 2010 to request additional unpaid leave through December 28, 2010, to “take care of [her] ill father” and due to her “own personal illness.” The Department approved her contractual leave until November 5, 2010, but warned that it would “not be granting any additional extensions.” She was expected to return to work on Monday, November 8, 2010. If she failed to return to work on November 8, 2010, the Department stated that it would begin the termination process.

Whitaker did not return to work on November 8, 2010. Instead, Whitaker submitted two doctor’s notes to the Department. The first note dated November 3, 2010, provided only “medical leave of absence until 11/17/10.” The second note dated November 7, 2010, provided only “medical leave of absence until 12/17/10.” On November 15, 2010, the Department advised Whitaker that due to her failure to return to work, it was considering terminating her employment. The Department scheduled a meeting with Whitaker on November 18, 2010 to discuss her pending termination and to allow her to provide documentation for consideration.

Whitaker attended the November 18 meeting with her union representative and advised that she still could not return to work. The Department terminated Whitaker on November 30, 2010. Whitaker sued for disability discrimination under Section 504 of the Rehabilitation Act, 29 U.S.C. §701 et seq. (“Rehabilitation Act”), alleging a failure to accommodate her request for “finite, unpaid leave.”

To establish a claim under the Rehabilitation Act, Whitaker was required to prove all four of the following elements: (1) she was disabled; (2) she was otherwise qualified for the job in question; (3) she was discharged solely because of her disability; and (4) her employer received federal financial assistance. Notably, the standards for determining discrimination under the Rehabilitation Act are the same as those used in Title I of the American with Disabilities Act (“ADA”).

The district court granted summary judgment in favor of the Department, finding that Whitaker failed to prove that she was an “otherwise qualified” employee who could perform the essential functions of her position with or without accommodations. Further, the court found her “open-ended leave request” was not a reasonable accommodation and would have imposed an undue burden on the Department. Whitaker appealed.

On appeal, the Seventh Circuit focused only on the district court’s first finding, whether or not Whitaker was an “otherwise qualified” employee capable of performing the “essential functions” of her job with or without reasonable accommodation. The court found Whitaker’s position, like most positions, required regular attendance. Whitaker had to answer phone calls, attend in-person meetings with clients, and use the Department’s internal computer system. Because she failed to return to work, the court found that she was not able to perform the essential functions without an accommodation.

As to whether she could perform the essential functions of her job with an accommodation, the court explained that the doctor’s notes that she submitted did not provide enough information to allow a finder of fact to make that determination. The notes failed to state whether Whitaker was receiving treatment or the effectiveness of any such treatment. Whitaker submitted an affidavit to the court asserting that she had been receiving cortisone injections and physical therapy during the fall of 2010, and that if she had been given additional leave until December 28, 2010, she would have been able to return to work.

The court found her self-serving declaration to be insufficient. While the affidavit was allowed as evidence on her course of treatment, it failed to explain the effectiveness of the treatment or the medical likelihood that she would have been able to return to work regularly. In other words, she failed to show that if she had been given additional unpaid leave, then she would have been able to return to work on a regular basis. Moreover, the court found that Whitaker’s repeated last minute requests for additional leave provided further support that any additional leave granted would be equally futile.

Because Whitaker had to establish all four elements of her claim to succeed, her failure to show that she was a “qualified” employee was fatal to her case. Accordingly, the Seventh Circuit affirmed the district court’s grant of summary judgment for the Department.

Given the Whitaker decision, employers should insist that doctor notes submitted for leaves of absence provide: 1) the medical condition requiring the need for leave; 2) the course of treatment to be given; 3) the amount and type of leave required; 4) the anticipated effectiveness of the treatment; 5) whether a reasonable accommodation will be effective; and 6) the likelihood that the employee will be able to return to work.

Employers must also be cognizant that the Whitaker decision was based on a record where the employer gave the employee multiple opportunities to provide more information before termination was considered. Under the ADA and the Rehabilitation Act, employers cannot refuse accommodations without such an “interactive process.”

In light of the Whitaker decision, we recommend employers review their leave policies to ensure that: (1) the requirements for doctors’ notes are squarely addressed; and (2) open interactive communications are an integral part of the leave process.