Vague Doctor’s Note And Repeated Leave Extension Requests Doom Employee’s Disability Discrimination Claim

by Ruth Horvatich
(402) 341-3070

In a recent decision, the Seventh Circuit slapped down an employee’s disability discrimination claim after the employee submitted vague doctor’s notes requesting additional leave, offering employers guidance relating to the often-requested reasonable accommodation of leave under the Americans with Disabilities Act (ADA).

In Whitaker v. Wisconsin Department of Health Services, Joyce Whitaker, an employee of Milwaukee County, Wisconsin (the “County”), suffered from severe back pain, which caused her to be absent from work from time to time. In the summer of 2010, Joyce took continuous Family Medical Leave Act (FMLA) leave, which was exhausted on October 18 of that year. On that day, Joyce requested additional leave, and the County provided her with another three weeks of leave, with Joyce scheduled to return to work on November 8.

On November 8, Joyce did not return to work, but rather submitted two doctor’s notes indicating she needed additional leave time. One note was dated November 3 and stated only “medical leave of absence until 11/17/10.” The second was dated November 12 and stated only “medical leave of absence 12/17/10.” Joyce did not submit any additional information relating to these requests.

On November 15, the County notified Joyce that it was considering terminating her employment and scheduled a meeting with her and her union rep for November 18. At the meeting, Joyce indicated that she still could not return to work. She was thereafter terminated and Joyce sued the County alleging disability discrimination.

The Seventh Circuit agreed with the lower district court that Joyce failed to present evidence showing that she was an “otherwise qualified” employee as required for her disability discrimination claim. The Court found that regular attendance is an essential function of many jobs, Joyce’s job included. Joyce argued that she could have performed the essential function of attendance with the further accommodation of additional leave time. However, the Court struck this argument down, finding that Joyce “did not offer any evidence regarding the effectiveness of her course of treatment or the medical likelihood of her recovery. The only medical documents she supplied were two terse doctor notes. . . . These notes did not explain whether [Joyce] was even receiving treatment, let alone the likely effectiveness of the treatment.”


Although this decision was decided under the Rehabilitation Act, which is the public sector equivalent of the ADA, it provides good guidance for employers dealing with repeated leave requests from employees that seem to have no end.

First, this decision arms employers with specific requirements for doctor’s notes supporting additional ADA leave. Specifically, according to the Court, doctor’s notes supporting such leave should provide (1) whether the employee is receiving treatment; (2) the likely effectiveness of the treatment; and, (3) the medical likelihood that leave would enable the employee to return to work regularly. Vague doctor’s notes such as those provided by Joyce in the above case will not suffice.

Second, this decision emphasizes the importance of communication when dealing with repeated requests for additional leave. In this case, the County gave Joyce a second chance to provide supporting documentation and explain herself in its meeting with her prior to her termination. In any ADA case, the interactive process is essential and employers are required to communicate with their employees.

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