Dive Brief:
- A former Costco hourly sales employee may proceed with his lawsuit alleging that the retailer violated California’s Fair Employment and Housing Act when it failed to accommodate his need to care for his wife, who had cancer, a federal judge held June 5.
- The plaintiff in Head v. Costco Wholesale Corp. took “continuous leave” between March 2021 and June 2022 to care for his wife as well as his own medical condition. He exhausted all leave available under the Family and Medical Leave Act, California’s Family Rights Act and Costco’s own leave policies. He then asked that his leave be further extended to continue care for his wife, but Costco denied the request and ordered him to return to work in July 2022.
- The plaintiff ultimately resigned rather than return on the specified date. He sought reinstatement after his wife died but was denied. He filed several claims against Costco but, in a split verdict, the court held that only some of his claims could survive summary judgment, including failure to accommodate, failure to engage in the interactive process, retaliation, and wrongful termination.
Dive Insight:
The case highlights the complexities involved when state and federal leave laws intersect with an employer’s own leave policies.
Per the court, Costco’s employee agreement with the plaintiff specified that the maximum continuous total amount of leave an employee may take — inclusive of both federal- and state-mandated leave, as well as Costco’s own personal medical leave policy — is 12 months, except as required by law.
The plaintiff’s first block of continuous leave began in March 2021 and ended June 2021, when he took FMLA and CFRA leave to care for his wife and exhausted his leave allotment under both laws in the process. He then took approved personal medical leave to care for his own health condition from June 2021 to February 2022.
Costco reached out to the plaintiff in February to inform him that his leave of absence was set to expire after one year. Per the court, the plaintiff responded by requesting an extension of his return date to February 2023 so that he could take care of his wife. Costco informed the plaintiff that he was not eligible for additional leave because he had not worked the requisite number of hours in the previous year to qualify for additional leave under either the FMLA or CFRA.
The plaintiff ultimately sued, alleging in part that Costco violated FEHA by discriminating against him based on his association with a person who had a disability, his wife.
The court found that no reasonable jury could find that a discriminatory animus motivated Costco’s termination decision nor its failure to rehire the employee. But it also determined that a jury could find the employee had proposed a reasonable accommodation by offering a return date from leave. A genuine dispute of material fact existed, the court added, regarding whether Costco failed to engage in a good faith interactive process with the plaintiff as required under FEHA.
Similarly, the court pointed to language in communications from Costco staff to the employee that suggested the company was willing to engage in an interactive process with him if he had been asking for leave for his own health condition but not if he had done so for his wife’s condition.
“To be sure, the Court acknowledges that, overall, Costco extended family leave to [the plaintiff] (and for his wife) for periods of time that exceeded the FMLA/CFRA and Costco’s policy, and thus Costco may assert it engaged in a good faith interactive process,” the court said. “But this is an issue for the jury.”
Leave extension requests historically present thorny issues for employers, and the manner in which courts weigh on such decisions may be fact-specific.
For example, the 9th U.S. Circuit Court of Appeals held in 2020 that an employee’s request for a four-week extension of a 16-week medical leave was not unreasonable within the definition of the Americans with Disabilities Act. Meanwhile, the 5th Circuit held in 2021 that an employee who exhausted FMLA leave and did not provide a return date was not entitled to additional leave under the ADA.