Not all requests for accommodation or FMLA leave will fit into neat boxes like “pregnancy” or “knee surgery.” Because the ADA definition of a disability includes any impairment that affects a major life function, employers are starting to see some more creative requests around the margins. In Trautman v. Time Warner Cable Texas, LLC, the Fifth Circuit recently dealt with an employee’s requests under both the ADA and FMLA to address her “anxiety/panic attacks” related to driving in bad traffic. Buckle up, while we try to unpack this situation!
Road Anxiety—ADA Path
Heather Trautman worked at Time Warner from October 2012 until April 2015 in a position that required her to be in the office to interact with other members of her team at certain times. After she became pregnant in 2013, she suffered several panic attacks while driving to or from work. Her obstetrician suggested that she leave work earlier to avoid driving in heavy traffic. Although Ms. Trautman did not submit an ADA accommodation request for her driving issues, her supervisor agreed to let her temporarily modify her work schedule.
After Ms. Trautman gave birth, she took FMLA leave, returning to work in March 2014. She told her supervisor that she was struggling to transition her baby to bottle feeding and asked if she could temporarily work from home. Her supervisor requested a doctor’s note but agreed to the temporary change—and Ms. Trautman worked from home for the remainder of 2014.
In December 2014, Ms. Trautman’s new supervisor told her she needed to resume working from the office starting in mid-January. The new supervisor was concerned Ms. Trautman was not performing necessary job duties that required her presence in the office. Ms. Trautman asked that she be allowed to work from home, and her supervisor said not unless she had a doctor’s note and a formal accommodation request approved by HR.
At that point, Ms. Trautman submitted a formal ADA accommodation request asking to work from 7 a.m. to 2 p.m. in the office and the remaining hours at home. The reason given was that her family physician said she had functional limitations of “anxiety/panic attacks related to traffic/driving.” The 2 p.m. departure was to allow her to avoid the heavy traffic. Time Warner denied the request because her job required her to work from the office during normal business hours. However, it did offer to adjust her schedule to 7 a.m. to 4 p.m. so she could leave the office earlier. Significantly, Ms. Trautman never tried the 4 p.m. departure time. Instead, she submitted another letter from her physician, and this time said she would be willing to leave the office at 11:00 a.m., so she could accommodate any busy afternoon work from her home. Time Warner again tried to get her to consider the 4 p.m. departure time, or even public transportation or ride sharing, to avoid her anxiety. Ms. Trautman again refused to try the 4 p.m. exit and also refused any other accommodations.
Trautman Takes Another Route—Intermittent FMLA Leave
With her ADA accommodation request at a standstill, Ms. Trautman began another plan—she started submitting intermittent FMLA leave requests that would let her depart the office early. She made those requests through Time Warner’s third-party administrator for leave requests—Sedgwick Claims Management Services. Ms. Trautman submitted paperwork from her physician saying that she needed to leave the office no later than 2 p.m. when her high-traffic anxiety flared up. Sedgwick approved her for one hour of FMLA leave per week for six months, but denied her request for any FMLA leave that would exceed that amount.
Ms. Trautman was missing work for numerous reasons at this time and received a written warning for her attendance. Her supervisor checked with Sedgwick to make sure that they were not counting FMLA leave against Ms. Trautman. Ms. Trautman continued to miss work. She was issued another warning pointing out that she had been absent for 22 days in the first three months of the year. She was warned that another write-up would result in termination. On the same day she received the write-up, she submitted a new doctor’s note to Sedgwick seeking an increase in her FMLA leave. Sedgwick agreed to increase the leave, but only as of the date they received the new paperwork — it did not retroactively approve any of her past absences as FMLA-covered. Ms. Trautman then began to take her increased leave. However, her unapproved absences continued, and Time Warner ultimately terminated her for excessive absenteeism.
Ms. Trautman filed suit claiming she was terminated in retaliation for her FMLA requests and that Time Warner failed to reasonably accommodate her ADA request relating to her anxiety about driving in heavy traffic. The lower court granted summary judgment on all of Ms. Trautman’s claims, and she appealed.
Fifth Circuit Drives it Home
The Fifth Circuit found that in examining whether Ms. Trautman’s absences were excessive, Time Warner had checked with Sedgwick to see if the time she missed was covered by the approved FMLA leave. It also noted that Time Warner’s reason for terminating her, excessive absenteeism, was not a pretext for FMLA retaliation. An employee’s failure to show up for work is a legitimate reason for firing her. The Fifth Circuit also stated that even if you subtracted the FMLA leave that eventually was approved, Ms. Trautman’s overall absences far exceeded the limits in Time Warner’s attendance policy. As such, there could be no claim for retaliation under the FMLA.
With regard to her ADA claim, the Fifth Circuit again found that there was no pretext in her termination. On the failure to accommodate claim, the Fifth Circuit noted Ms. Trautman did not engage in a flexible, interactive discussion about her accommodation request. She requested that she be allowed to leave at 2 p.m. When Time Warner denied that request, Ms. Trautman instead asked to leave at 11:00 a.m. The court stated “that’s not the stuff of flexible, interactive discussions.” It also bothered the court that Ms. Trautman never looked into other options, such as additional breaks or ride sharing. In the end, the court stated “neither the ADA nor the 2008 amendments to the ADA permits an employee to leave work early and then sue her employer for being unreasonable.”
How Does This Affect the Rules of the Road on FMLA and ADA?
This decision didn’t really alter the landscape, but it is a good example of an employer that did a decent job of trying to accommodate an employee who was asking for more than the company could grant. The Fifth Circuit noted several times in the opinion that Time Warner had allowed her to alter her work schedule, even though they weren’t absolutely required to do so. Time Warner apparently did a good job of communicating with Ms. Trautman, even if it was denying what she wanted. In addition, the court also found it significant that every time Ms. Trautman’s supervisor was looking to discipline her for being absent, she first looked to make sure those absences weren’t covered by the FMLA.
One of the lessons to be learned here is that when it comes to mental health, especially anxiety, employers need to be very careful to follow their usual procedures on ADA accommodation requests. In addition, even though Ms. Trautman had been working from home for the better part of a year, Time Warner had appropriate evidence to show that actual presence in the office was an essential function of the job. That evidence enabled the Fifth Circuit to state that failing to show up for work when required can be a basis for termination.