I played basketball in high school and dreamed of playing in college. I knew it was a long shot, and it never came to pass. “Maybe I’ll walk on some day,” I thought as I went off to college. Yeah, right. I gave up that dream when I enrolled at Wake Forest in the early- to mid-1990s (don’t ask when; first, it’s not polite and, second, at this point the question might violate the Age Discrimination in Employment Act). As soon as I saw Tim Duncan and friends go to work as Demon Deacons, I knew my scholastic athletic career was over. I became an eager fan, and followed Duncan through his professional career with the San Antonio Spurs.
I’ve stuck with the Spurs following Duncan’s retirement. The Spurs remind me a bit of my baseball rooting interest, the St. Louis Cardinals (another topic of a few posts). They have shown remarkable consistency, making the playoffs for two straight decades, winning five championships over that span, and featuring unusually low turnover among their core roster. Gregg Popovich has coached the team during that entire run. In three words, they’ve been successful, stable, and steady.
The Spurs have been steady until now, perhaps. Following Duncan’s retirement, Kawhi Leonard became the face of the franchise. Leonard is a quiet, supremely talented player who brings one of the most complete all-around games to the floor each night. When healthy, most observers consider him one of the top five players in the game (or ten, at the very least). He has the rare ability to beat a team by being the leading scorer at the same time he is locking down the opponent’s best player on the defensive end. Last year, he led the Spurs to a 25-point lead over the Golden State Warriors in Game 1 of the Western Conference Finals before an injury forced him out of the series. Without Leonard, the Spurs lost Game 1 and the Warriors swept the series, eventually winning the NBA championship. Leonard suffered a quadriceps injury last fall which has sidelined him for much of the current season.
His injury also seems to have thrown a wrench into the Spurs’ usual steady-as-she-goes demeanor. Recently, press accounts have hinted at discord among the players. Part of the problem appears to be that the Spurs medical staff believes that Leonard is ready to play (and has been for some time), while his own medical team has urged caution and continued rehabilitation. Hopefully, they’re all going to be able to move forward with Leonard on the roster.
This situation isn’t all that different from those times when an employee goes out on leave and a question arises as to whether the employee is entitled to leave or fit to return to work. For example, the Family Medical Leave Act limits an employer’s ability to contact an employee’s health care provider about a certification of leave form. The employer may only contact the health care provider for “authentication” (i.e., to confirm that the information on the certification is correct or that the health care provider completed the form) and “clarification” (i.e., when the employer can’t read the writing on the form or understand the information). If the employer doubts the validity of a certification, it can select a health care provider not employed by the company nor regularly used by the employer for a second opinion. Depending on the outcome of the second opinion, a third opinion may be sought from a provider chosen by the employer and employee, and this third opinion is final and binding. These additional opinions must be paid for by the employer.
As another example, what if an employee has exhausted her FMLA leave but is not ready to return to work? Most of you have probably faced such a situation and are aware that the Americans with Disabilities Act requires the employer to consider whether additional leave should be a reasonable accommodation. But how long should the additional leave last? And can the company send the employee to a physician of the company’s choosing to assist in the interactive process? The answer is yes, but the company will bear the cost for that physician’s examination. Unfortunately, however, even with this additional information, the courts and the EEOC have not offered much in the way of definitive guidance on how long employers are expected to extend leave into the future. For example, one court held that an employee must provide an estimated date when she can return to her essential job duties and must give the employer assurance that she will be able to perform the essential functions of her job in the near future.
You may ask, “Well, that’s great, but when is the ‘near future,’ how close is this ‘estimated date’ going to be?” I wish I had better answers for you. All I can tell you is that the ADA requires you to sit down with the employee to work it out as best you can.
Now you know how the Spurs feel.
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