Sixth Circuit Holds it is Unreasonable to Keep a Job Open Indefinitely

The Sixth Circuit Court of Appeals has held that it was an unreasonable accommodation to keep a job open for an employee with no clear prospects of recovery. In the case Aston v. Tapco International Corporation, Walter Aston was denied reasonable accommodation on the basis that it would put undue hardship on his employer.

Walter Aston was an employee at Tapco International Corporation, a manufacturer of building materials. In May 2010, Aston suffered a heart attack that left him unable to perform his work for an extended period of time. He received 12 weeks of Family and Medical Leave Act (FMLA) leave, with an additional 14 weeks of short-term disability (STD) leave. This gave him a total of 26 weeks of leave. However, Tapco’s policy does not offer an employee more than the 12 week leave required by the FMLA. Tapco also does not hold positions open for employees who are unable to return to work after exhausting their 26 weeks of leave and STD benefits.

On Nov. 4, 2010, Aston’s doctor notified Tapco’s director of human resources that Aston was unable to work from May 22, 2010, until Jan. 1, 2011, and that he would be undergoing future surgery.

In November, Tapco’s HR director informed Aston that the company had tentatively decided to let Aston go because Aston was unable to return to work until January 2011, and the company did not allow leave beyond Nov. 22, 2010. The HR director recommended Aston take long-term disability.

Aston’s doctor amended the medical certification at Aston’s request to approve Aston’s immediate return to work, but kept the work restrictions. Aston contacted the HR Director to state that he was able to return to work on Nov. 22, but the HR Director stated that the employer had already thought that his job would be too much for him to handle. In mid-November Aston received a letter from Tapco stating that on Nov. 22, 2010, his employment would be terminated.

In December 2010, Aston sent a written request for an accommodation. Aston claimed that he did not receive a response until May 31, 2012 (18 months later). Aston rejected the offer and filed suit against Tapco, claiming that the offer was overdue, that he was fired because of his disability and was denied reasonable accommodation. The district court found that Aston was not qualified to perform the essential functions of his job, with or without a reasonable accommodation and granted Tapco’s motion for summary judgment. Aston appealed the case asserting claims under the Americans with Disabilities Act (ADA), Michigan law and the FMLA.

The district court found that Aston’s ADA claims were not legally valid; his own doctor stated that Aston had been unable to perform his job since the date of the heart attack. The 6th circuit upheld the district court’s finding that if he had returned to work, with or without accommodation, he would have been incapable of completing the physical labor his job required. The 6th circuit also held that it was an unreasonable accommodation to keep a job open for Aston with no clear prospects of recovery.

Employers should proceed with caution when employees are on or returning from disability leave. Employers are required to provide a reasonable accommodation to qualified disabled employees, as long as it does not cause undue hardship. Even when an employee returns from FMLA leave and needs a reasonable accommodation, not all disabilities can be reasonably accommodated.

The EEOC advises employers to use the following steps:

  • Analyze the job to determine its purpose and its essential functions
  • Consult with the individual to find out the precise job-related limitations imposed by his or her disability and what type of accommodation would help overcome those limitations
  • Along with the individual, identify any potential accommodations and assess the effectiveness each would have in enabling the employee to perform the job’s essential functions
  • Consider the individual’s preference, and select and implement the accommodation that is most appropriate from both the employee’s and the employer’s standpoint

Documentation of the steps to find a reasonable accommodation and whether or not the employee participated is also important in the accommodation process.


About Ben Clairday

As Bolton’s Compliance Assistant, Ben Clairday is responsible for handling Business Associate Agreements, Form 5500s, HIPAA files and Summary Plan Descriptions for clients. He also supports Bolton’s employee benefits service teams by providing his knowledge on the Affordable Care Act, wage and labor laws and paid sick leave laws. Ben works closely with Bolton Chief Compliance Officer John Garner, and recently assisted with updates on the 12th edition of the Health Insurance Answer Book. Ben is licensed in Life & Accident & Health Insurance and holds a Bachelors of Art in History from Humboldt State University.

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