Labor & Employment Law Daily Wrap Up, DISCRIMINATION—DISABILITY—E.D. La.: Employee who received more than six months of leave could still bring disability bias suit, (Apr 21, 2025)

By Nicholas Kaster, J.D.

Taking extensive time off from work may be more or less problematic given the responsibilities of the occupation involved.

Disability discrimination claims brought by an employee who had already received more than six months of medical leave when he was terminated survived a motion to dismiss, a federal district court in Louisiana ruled. As of the time of his termination, the employee had sought leave until December 1, 2023. A request for leave with a specified end date is plainly not a request for indefinite leave that would categorically be an unreasonable accommodation, the court said. Rather, it “may ultimately prove reasonable.” Accordingly, he satisfied his burden to validly state a claim under the ADA, the court held. The court, however, granted the employer’s motion to dismiss the employee’s FMLA claim (Abbruscato v. Thionville Laboratories, LLC, No. 24-2834 (E.D. La. Apr. 17, 2025)).

The employee started working as a chemist and microbiologist in September 2021. In December 2022, he received a hip replacement that resulted in his receipt of short-term disability payments for a period of four weeks. In May 2023, he began another period of medical leave when he sought emergency medical treatment for severe shoulder pain. He was diagnosed with an underlying infection that resulted in life-threatening sepsis, on account of which he remained in the hospital for 28 days.

Because the employee needed extensive occupational and physical therapy once he was released from the hospital, he continued to receive short-term disability payments and Medicaid. During that time, the employer did not offer him leave pursuant to the FMLA. Nor did the employer notify him of his entitlement to FMLA leave or ask him to pay any insurance premiums.

No notification. While on leave, the employee relayed his doctor’s advice to his supervisor. According to the employee, on September 19, 2023, he advised his supervisor that he would be able to return to work on December 1. During that call, the supervisor did not advise him that he had to pay his short-term disability premium, that his 12 weeks of FMLA leave were expiring, or that he needed to return to work to protect his employment status.

Termination. The employee was terminated effective October 10, 2023, purportedly for failing to pay his short-term disability insurance premiums and to notify management of his progress. He sued, asserting disability discrimination and failure to accommodate in violation of the ADA and the Louisiana Employment Discrimination Law (LEDL) and discrimination and interference under the FMLA. The employer moved to dismiss all the claims for failure to state a claim.

ADA/LEDL claims. The employer asserted that both ADA claims failed because the employee was not a “qualified individual.” While the employer acknowledged that the employee possessed the requisite skills and training for his position, it contended that he was not a qualified individual at the time of his termination because he was unable to attend work for several months. The employee had already missed about five months of work at the time of his termination and had already indicated that he would not be able to return to work for approximately another month and a half. In total, he was expected to miss approximately six-and-a-half months of work. In the employer’s view, such a prolonged absence from work was not a reasonable accommodation of the essential function of regular work attendance.

In the Fifth Circuit, said the court, it is well established that “taking leave that is limited in duration may be a reasonable accommodation to enable an employee to perform the essential functions of the job upon return.” Contrarily, indefinite leave is never a reasonable accommodation. In light of controlling Fifth Circuit precedent, the court held that the employee validly stated that he was a qualified individual and thus his claim survived the employer’s motion to dismiss.

As of the time of his termination, the employee had sought leave until December 1, 2023. A request for leave with a specified end date is plainly not a request for indefinite leave that would categorically be an unreasonable accommodation, the court said. Rather, it “may be a reasonable accommodation.” Altogether, said the court, the employee’s complaint alleged that he requested a period of leave that may ultimately prove reasonable. Accordingly, he satisfied his burden to validly state a claim.

The court conceded that, given the substantial leave he had already received, it might well not have been reasonable for the employer to accommodate several more weeks of leave. But that merits question was not properly before the court. What separates an absence that is reasonable from one that is unreasonable “usually depends on factors like the duties essential to the job in question, the nature and length of the leave sought, and the impact on fellow employees.” Taking extensive time off from work may be more or less problematic given the responsibilities of the occupation involved. It would be “premature” to answer such a fact-intensive question at the motion-to-dismiss stage, the court held.

Similar to the ADA, the LEDL protects “qualified” individuals. Since the court held that the employee’s ADA claims survived because he plausibly alleged that he was a qualified individual, the court held that his LEDL claims survived as well.

FMLA claims. The employee brought claims for both FMLA interference and FMLA retaliation. As to his FMLA interference claim, he contended that he lost his employment because of the employer’s failure to notify him that his FMLA leave was being used as his medical leave. He asserted that, had he known he would only be entitled to 12 weeks of unpaid leave while utilizing short-term disability, he would have either only used 12 weeks of leave in one FMLA period or returned to work with accommodations such as part time, in a wheelchair, or remotely. As to his claim for FMLA retaliation, the employee contended that the employer retaliated against him for using his medical leave by terminating his employment.

The court concluded that the employee failed to validly state claims either for FMLA interference or FMLA retaliation. The Fifth Circuit has plainly expressed that “plaintiffs must allege facts that support the elements of the cause of action in order to make out a valid claim.”

Whether a plaintiff is an eligible employee and whether a defendant is a covered employer are elements of an FMLA cause of action. Accordingly, a plaintiff must validly plead them. Yet here, the employee’s complaint was devoid of factual allegations respecting those elements either in the general fact section or in the section designated specifically for his FMLA claims. The employee’s complaint did not even contain bare conclusory allegations regarding those elements.

The employee’s argument that he was a covered employee under the ADA was unpersuasive. This argument is beside the point, said the court, as the definition of an employer for the ADA is different than that for the FMLA.

Because a plaintiff must ultimately establish that he is an eligible employee working for a covered employer to succeed on his FMLA claims, said the court, those elements must be pled in his complaint. Since employee here did not plead those elements, his FMLA claims must be dismissed.

Accordingly, the employer’s motion to dismiss was granted with respect to the employee’s FMLA claims, and the FMLA claims were dismissed without prejudice. However, the employer’s motion to dismiss was denied with respect to the employee’s claims under the ADA and LEDL.

The case is No. 24-2834.

Judge: Africk, L.

Attorneys: Amanda Jeanne Butler (Business Law Group) for Frank Abbruscato. Renee Gluth Culotta (Frilot) for Thionville Laboratories, LLC.

Companies: Thionville Laboratories, LLC

Cases: EmployeeLeave DisabilityDiscrimination Discrimination Discharge LouisianaNews