As a preliminary note, the original plaintiff in this case, Barbara Brown, has passed away due to chronic obstructive pulmonary disease (COPD). Her husband has continued this case as executor of her estate.
Barbara Brown worked for the Lincoln Trail District Health Department where she often assisted with immunizations and both sick-child and well-child checks. Through this employment, Ms. Brown became a member of the Kentucky Retirement Systems (KRS) on March 31, 1992.
In March 1998, Ms. Brown required emergency medical services, at which time a radiologist who reviewed Ms. Brown's chest x-ray noted changes suggestive of COPD with moderate bilateral upper lobe emphysema. Ms. Brown was not diagnosed with COPD or emphysema at this time, however, she was diagnosed with acute bronchitis and told to return if her condition worsened. Ms. Brown was given a prescription and resumed her normal physical routine including walking up to four miles a day and mowing her own lawn with a push mower.
Two years later, in June 2000, a new chest x-ray was taken and compared with the 1998 chest x-ray. Ms. Brown's lungs were found to be clear and there was no active disease. In September 2000, a medical exam again was suggestive of COPD. Finally, in February 2001, nine years after becoming a member of KRS, Ms. Brown was diagnosed with COPD.
In September 2001 Ms. Brown's pulmonologist recommended that she use oxygen with all activities and at nighttime. In May 2003, when Ms. Brown's condition had worsened, the pulmonologist recommended that she be permitted to use oxygen on the job as an accommodation to allow her to continue working.
Rather than provide this workplace accommodation, Ms. Brown's employer instructed her that: “When there is a need to use oxygen, you will need to advise your supervisor that you would be implementing your need for Family/Medical Leave. You should go to an office and initiate an oxygen treatment for [the] amount of time needed before returning to regular duties. Time should be coded to sick and/or vacation if available. Otherwise, you will be FML without pay.”
Ms. Brown's condition worsened to the point where she required oxygen at all times and the above accommodation was not workable. Ms. Brown's last day of employment was May 31, 2003, after which she filed for disability benefits with KRS.
KRS denied Ms. Brown's claim and she challenged their denial. A hearing that followed found: (1) Ms. Brown failed to prove she was totally and permanently disabled; (2) Ms. Brown failed to take advantage of the reasonable accommodation provided by her employer, and; (3) Ms. Brown's emphysema and COPD were, or resulted directly or indirectly from, a pre-existing condition.
Ms. Brown challenged this decision and filed suit in circuit court where the decision was reversed. The judge ruled that: (1) the facts of the case did support a finding that Ms. Brown had a total and permanent disability; (2) allowing an employee to take sick leave or leave without pay, a benefit the employee is already entitled to, is not a reasonable accommodation, and; (3) Ms. Brown's smoking behavior was not a pre-existing condition precluding disability retirement benefits. KRS has appealed this decision.
Because the KRS is a retirement and disability benefit system under Kentucky state statute, and incorporates the requirements of Title I of the ADA regarding the provision of reasonable accommodations, the court's analysis of these issues is a Title I analysis.
Based on her medical diagnosis of COPD and emphysema, the Court found that Ms. Brown was totally and permanently disabled. The Court noted though, that if either of the two remaining issues were answered in favor of KRS, Ms. Brown would not be eligible for the disability benefits in question.
Looking at the circuit court’s holding that “…allowing a person to take sick leave or leave without pay is not a reasonable accommodation”, this court decided that this is too broad a statement. This Court held instead that an accommodation of this nature can constitute a reasonable accommodation, but only when it enables the employee to immediately or eventually return to work at an acceptable level of proficiency. (This type of leave, where an employee’s use of sick leave or leave without pay will facilitate the employee’s return to work, is known as recuperative leave).
In Ms. Brown's case, where she needed continuous oxygen treatment, the only kind of leave that would meet her disability needs was a permanent leave of absence, and offering permanent unpaid time off as an accommodation is the same as proposing termination. Accordingly, the court found that Ms. Brown's employer had not provided a reasonable accommodation to allow her to continue working.
Turning to the next issue, the court noted that Ms. Brown had the burden of proving that she did not have a pre-existing condition. The court held that where Ms. Brown is required to prove the absence of something, the amount of evidence needed to do so is minimal. In this case, where Ms. Brown presented pre-employment x-rays showing no symptoms of COPD, and medical evidence showing no mention of COPD for six years and no diagnosis of COPD for nine years, she created a rebuttable presumption against a pre-existing condition. When KRS attempted to rebut this presumption by arguing that Ms. Brown's thirty year smoking habit was itself a pre-existing condition, the court held that because behavior (smoking) is not capable of medical or psychiatric diagnosis, it does not constitute a 'condition' as that term is used in this context.
The Court of Appeals of Kentucky found in favor of Ms. Brown.
Allowing an employee to take recuperative leave can constitute a reasonable accommodation. Allowing an employee to take time off, when the practical affect of that benefit will result in a permanent leave of absence, is the same as suggesting termination and does not constitute a reasonable accommodation. With this decision, the sixth circuit has left a very broad window of what can constitute recuperative leave and therefore serve as a reasonable accommodation (possibly any amount of leave which is less than a permanent leave of absence). Other courts may disagree or narrow the range of recuperative leave that is a reasonable accommodation.
An employee's behavior or conduct does not constitute a condition, so that thirty years of smoking will not disqualify an employee from receiving benefits associated with emphysema diagnosed after employment began.