The Law

Center’s Migraine by Ron Davis An employee working for an Ohio shopping center has won the battle to retain her job despite suffering from physical ailments that cause repeated and prolonged absences. The shopping center is Sandusky Mall in Sandusky, and the employee was hired to work there as an administrative assistant. But after a year on the job, she asked for a leave of absence. She explained that her severe migraine headaches made it impossible to fulfill her job duties. Her supervisor granted a 12-week leave. A few months later, she asked for reinstatement. But she added that she could not guarantee that her headaches wouldn’t require intermittent absences. In response, her supervisor told her that any return to her job must come with her assurance of a 40-hour work week. Lacking that assurance, the supervisor fired her. Neither her employer’s policies nor federal law require the employer to hold open her job beyond the expiration of her approved 12-week leave. However, a physical inability to return to work at the end of that leave is not just cause for firing. In fact, the courts in Ohio have consistently held that absenteeism caused by a bona-fide illness that is reported to the employer, is also not just cause. But the position of her employer is that she abandoned her employment position. In fact, after getting a doctor’s okay to return to work, she remained absent from her job for 38 days. To her employer, those are clear indications that she no longer has a claim to her previous employment status. In response, she explained that just because she obtained clearance from her doctor to return to work does not necessarily mean he released her exactly on that date. And she noted that afterwards, she contacted her supervisor periodically before actually returning some five weeks later. Moreover, rather than her failure to return to work as the cause of her firing, it was her inability to guarantee that she could work a 40-hour week, every week. In other words, had she promised a full week of work on a continuing basis, her employer would have retained her as an employee. An Ohio court therefore ruled in favor of the employee, explaining, “[Her employer] placed an unreasonable condition upon her return to work. It would be difficult for any employee to make such a ‘guarantee.’ Under these circumstances, she did not abandon her job. She tried to return after her leave…but [her employer] prevented her from returning…. It is her burden to show an ability to work (which she did). It is not her burden to show an inability to work. If her employer wanted to call into question her evidence and assertion of an ability to work, it could have pointed to a specific week where she could not perform because of migraines. However, it did not…. She was terminated without just cause.” (Cafaro Management Company v. Polta, 2012 WL 4712519 [Ohio App. 7 Dist.]) Decision: October 2012 Published: October 2012