Category Archives: ADA

NEW CASE: Employer Must Pay for Post-Offer Medical Exams

In a recently decided federal case ( EEOC v. BSNF Railway Company), the U.S. Court of Appeals for the Ninth Circuit held that employers are required to pay for an employer-required post-offer medical examination.

In this case, the company made an offer of employment to an individual and conditioned the offer of employment on the candidate successfully completing a medical examination.  This candidate had a history of back issues and was required to obtain an MRI as a part of the examination (which the candidate was going to have to pay for out-of-pocket).  The candidate told the company that he could not afford to pay for the MRI and the company rescinded the job offer.

The Court confirmed that ADA permits follow-up medical testing where such testing is “medically related to previously-obtained medical information.”  However, the ADA does not specify who should pay for the additional testing.  The Court determined that requiring the candidate to assume the costs of the additional testing could go against the anti-discrimination provisions and the policy purposes of the ADA, by forcing them “to face costly barriers to employment.”  As a result, the Court found that employers must bear the costs of any such testing.

NEW CASE: Court Reminds Employers That Reasonable Accommodation ≠ Employee’s Demand Where There Are Other Reasonable Alternatives

In a recent case (Sessoms v. Trustees of the University of Pennsylvania), the Third Circuit Court of Appeals held that while the Americans with Disabilities Act (ADA) requires employers to provide reasonable accommodations to disabled employees, employers are not required to provide the accommodation requested by the employee.  Instead, after engaging in the interactive process, employers may choose among reasonable accommodations as long as the chosen accommodation is effective.

In this case, an employee had been out on a medical leave of absence relating to her disability.  Prior to returning to work, the employee engaged in the interactive process with her employer (the university) and requested that she be provided a part-time schedule and that she be transferred to a different supervisor in a “lower-stress department/office” as a reasonable accommodation for her disability.

The university agreed to provide the employee with a part-time schedule, but the university did not grant the employee’s request to change supervisors.  The university offered the employee several different accommodations (all of which involved reporting to her current supervisor), but the employee refused to accept any accommodation that involved her reporting to her current supervisor.  Ultimately, after making several attempts to get the employee to accept the offered accommodation, the employee was terminated.  The employee later sued the university for disability discrimination. Continue reading NEW CASE: Court Reminds Employers That Reasonable Accommodation ≠ Employee’s Demand Where There Are Other Reasonable Alternatives

Failure to provide reasonable accommodation to deaf employee costs Costco $775,000

A Florida jury recently awarded a former Costco employee $775,000 for her claim that the company failed to reasonably accommodate her disability.

The former employee is deaf and she claimed that Costco failed to provide sufficient interpreting services for her at work — specifically during larger group meetings (held via conference call).  While Costco had provided this employee with a video phone, the employee had complained that the video phone did not work properly during larger meetings where there are multiple conversations occurring at the same time.  The employee asked Costco to provide a live interpreter for the large meetings and, while Costco agreed to provide the interpreter, one was never actually provided.

Continue reading Failure to provide reasonable accommodation to deaf employee costs Costco $775,000

Utah Employer Learns A $832,500 Lesson About Disability Discrimination


Associated Fresh Market, Inc. has agreed to pay $832,500 to settle a group of disability discrimination charges filed with the U.S. Equal Employment Opportunity Commission (EEOC).

The charges filed against the company by several employees alleged that Associated Fresh Market had a pattern and practice of denying reasonable accommodations to disabled employees.

The EEOC investigated these charges and found that the company had a practice of denying reasonable accommodations under the ADA.  Specifically, the company required employees to have no restrictions or be 100% ready to return to work before an employee was reinstated following a medical leave of absence.  The company also routinely denied leave as a reasonable accommodation.  Finally, the company frequently refused to reassign employees to a vacant position as a reasonable accommodation.

Continue reading Utah Employer Learns A $832,500 Lesson About Disability Discrimination

The EEOC Claims Another Victory in Fight for Disabled Workers

On June 5th, Nevada Restaurant Services, a large Las Vegas-based gaming company that operates slot machines, taverns, and casinos, agreed to pay $3.5 million to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC).

In the suit, the EEOC alleged that by requiring workers with disabilities or medical conditions to be “100% healed” before returning to work the Las Vegas gaming company violated the Americans with Disabilities Act (ADA). The EEOC argued that this behavior doesn’t adhere to the ADA’s interactive process, let alone its reasonable accommodation requirement.

Furthermore, the EEOC showed that Nevada Restaurant Services went as far as firing employees because it viewed them as disabled or, in some cases, were simply associated with someone with a disability.

The EEOC’s Fight Moves Onward

Continue reading The EEOC Claims Another Victory in Fight for Disabled Workers

NEW CASE: $4.5 Million Reasons to Engage In the Interactive process (and Provide reasonable Accommodation) to your disabled employees

In a recent California case, employers nationwide are reminded of the importance of engaging in the good faith interactive process and attempting to provide reasonable accommodation to a disabled employee.  California jurors, in a special verdict, recently awarded a disabled former employee a $4.5 million verdict for violating the California Family Rights Act (CFRA) and California Fair Employment and Housing Act (FEHA) when the employer terminated the employee while she was out on CFRA leave.

The Case

In 2015, the former employee went out on medical leave (CFRA leave) for a broken arm.  Shortly after going out on leave, the former employee was diagnosed with major depression and her treating physician advised her employer that she would require more time off than the 12 weeks provided under the CFRA.

Rather than engage in the interactive process with the employee to try to find a reasonable accommodation (or extend the employee’s leave), the employer terminated the employee when her 12 weeks of CFRA leave expired.  The former employee filed a lawsuit against her employer claiming that she was fired because of her physical and/or mental disabilities, and in retaliation for her taking protected leave for medical treatment.  The employee also claimed that her employer had violated FEHA by failing to engage in the interactive process with her about her disability and by failing to provide her with reasonable accommodation.

The jury agreed with the plaintiff and awarded her the $4.5 million verdict ($546,000 for back and front pay, over $1.9 million in compensatory damages and $2.6 million in punitive damages).

Take Home for Employers

While a California case, this case highlights to all employers the importance of working with employees who require accommodation for a disability (i.e. the importance of engaging in the interactive process).  This case might have been brought under California law, but there are federal laws (i.e. the Americans with Disabilities Act and Family Medical Leave Act) that impose the same requirements on employers.  Under these laws, employers are required to engage in the interactive process to determine what reasonable accommodations are necessary so an employee can perform essential job functions.

The following are important steps to follow when engaging in the interactive process with an employee:

  • Document!!!!! When an employee requests a leave of absence or a reasonable accommodation, document that request.  Also, provide the employee an acknowledgement of the request in writing, to document that the request was received.
  • Talk to the employee about the request. Sit down with the employee and discuss the request and possible accommodation(s) that the company can offer.  Request additional information from the employee (or his healthcare provider) where necessary in order to determine exactly what the employee can (and cannot) do.
  • Document (again)!!!!! After these conversations with the employee, send the employee a confirming memorandum summarizing your conversation, outlining accommodations discussed, and detailing any action items that both the employee and company need to perform in order to continue with the process.
  • Complete the company’s action items AND follow up with the employee. Be sure to complete any action items assigned to the company in the confirming memorandum.  Also, follow up with the employee to check the status of his action items.  Do not assume that the employee will simply complete them, periodically touch base with the employee.  And, as always, document both the company’s actions, but also the follow up conversations with the employee.
  • Repeat this process. This process will need to be repeated until an accommodation is reached or a determination is made that no accommodation is possible.  Remember, under the ADA (and FEHA), a leave of absence is considered a reasonable accommodation.

Remember, the interactive process is a continuing process with your disabled employees.  Just because an accommodation is reached, that does not end the employer’s obligation to engage in the interactive process.  Employers need to follow up with their employees periodically and verify that the selected accommodation is still working for the employee (i.e. enabling the employee to perform the essential functions of the position).  If it isn’t, then the company will need to start the interactive process all over again.

NEW CASE: Connecticut Court Finds Providing Indefinite Leave Is Not A Reasonable Accommodation

In a recent case, Thompson v. Department of Social Services, the Connecticut Appellate Court held that an employer is not required to grant an employee a leave of absence as a reasonable accommodation where the employee requests an indefinite leave and does not respond to the employer’s request to contact her regarding her leave.

The Case

The plaintiff was a long-term employee of the Connecticut Department of Social Services and suffered from a chronic health condition that caused her to take medical leaves of absence (including FMLA leave) throughout her employment.

Following the expiration of an FMLA leave in February of 2013, the plaintiff left a note for the HR department advising that she would be taking additional medical leave starting the next day and lasting “over thirty days depending on my lung condition as I need to get well and my lungs better.”  The plaintiff did not speak to the HR Director in person, but left her contact information along with the instruction to “call me if you have any questions.”

The plaintiff also left the completed paperwork requesting additional leave under short-term disability policies.  However, the information on the two forms was conflicting.  On one form, the plaintiff stated that she was unable to return to work until reevaluated by her physician and that the physician expected “significant improvement in her medical condition” in one to two months. On the other form, the physician claimed that the plaintiff’s need for leave would be “ongoing” and she would be able to return to work “when reevaluated”, although no date was provided for the reevaluation.

Upon receipt of the note and the two forms, the HR department informed the plaintiff via certified mail that she was ineligible for extended leave because she did not provide sufficient information to support her need for additional leave.  The letter further advised the plaintiff that her current time off was unauthorized.  The letter also gave the plaintiff 15 days to provide additional medical certification to support her need for additional leave.

The plaintiff did not respond to this letter and her employment was terminated after the expiration of the 15-day period.  The plaintiff subsequently filed a lawsuit for disability discrimination.

The Holding

The Court that in this case the employer acted properly and that it was not required to provide her with an extended leave of absence when she had, for all intents and purposes, requested an indefinite leave of absence.  Specifically, the court found that her request for leave was not a reasonable accommodation because the plaintiff failed to provide the employer with any time frame for her return and then failed to respond to the employer’s subsequent attempts to contact her regarding her request for leave; thereby depriving the employer of the opportunity to engage in the interactive process with the employee.

Take Home For Employers

This case is significant because it confirms that extending an indefinite leave of absence is not a reasonable accommodation under the ADA.  However, this holding should be taken with a large grain of salt.

Even though this case was ultimately favorable to employers, it does not mean that employers are not required to extend a leave of absence following the expiration of FMLA as a reasonable accommodation.  Instead, it reminds employers of their obligation to engage in the interactive process with an employee who is seeking an extension of FMLA leave to determine whether extending the leave is a reasonable accommodation.  It further confirms that employers have the right to request that an employee provide reasonable documentation relating to their request for accommodation and they have a duty to explore various accommodations with the employee – one of which may be an extension of a leave of absence.

Finally, here the Court found that the employer’s attempts to engage in the interactive process with the employee (by sending two letters) were enough to make a good faith attempt to communicate with the employee.  However, did the employer really go far enough?  This Court thought yes, but other Courts in other jurisdictions have found that merely sending a letter to an employee is an insufficient attempt and employers should attempt to exhaust other lines of communication as well – like calling the employee on the phone.

If faced with a similar situation (an uncommunicative employee), we recommend that employers try multiple ways (phone, email, text message, letter) to contact the employee before reaching the conclusion that the employee is refusing to cooperate.

REMINDER — Engaging In The Interactive Process Is An Ongoing Duty

The interactive process is not a “one and done” affair.  This is something that employers tend to forget when trying to provide a reasonable accommodation to a disabled employee.  To properly comply with the Americans with Disabilities Act (ADA), sometimes employers must engage in the interactive process numerous times to meet their statutory obligations.  Failure to do so can prove costly – as one medical center recently learned.

What Happened?

On September 13, 2017, the EEOC announced that a Mississippi medical center (Vicksburg Healthcare, LLC, dba River Region Medical Center) agreed to pay $100,000 to settle a federal disability discrimination lawsuit filed against it by the EEOC.

According to the lawsuit, the medical center refused to engage in the interactive process with an employee who had requested an accommodation for a disability.  The employee had taken approved sick leave in order to have shoulder surgery.  Before her sick leave expired, the employee contacted her employer and requested a reasonable accommodation of an extension of her leave, or to return to work on light duty – because her healthcare provider had said she needed more time to fully recover from the surgery.

Rather than engage in the interactive process with the employee, the medical center refused to extend the employee’s leave of absence and also refused to temporarily place the employee in an available light-duty position for which she was qualified.  Instead, the medical center terminated the employee.

What’s wrong with that?

While the employer had already provided the employee with one reasonable accommodation for her disability (time off from work to undergo surgery), the Americans with Disabilities Act requires employers to engage in an “interactive process” with an employee who has a disability to determine what kind of reasonable accommodations it can provide.

As the title to this article suggests – this is an ongoing duty.  Employers cannot “rest on their laurels” once one accommodation is provided and refuse to consider providing additional accommodations when the one provided is no longer sufficient.  Instead, the employer must re-engage in the interactive process to determine whether an alternative accommodation can be provided.

Most importantly to employers (and of critical significance in this case), when a leave of absence is provided as a reasonable accommodation, employers cannot be inflexible in the amount of leave provided.  An employer cannot simply provide a fixed amount of leave to an employee and, when that leave is exhausted, refuse to provide any other accommodation.  Instead, the employer must re-engage in the interactive process with the employee and possibly consider extending additional leave or some other type of accommodation.

Final Thoughts

Providing reasonable accommodation to disabled employees is not a “one-size fits all” process.  Different employees have different needs when it comes to accommodation.  Two employees with the same disability can require different accommodations to perform the essential functions of the position.  One employee might only require one accommodation, while another employee might require multiple accommodations or even new accommodations at a later date.  The only way to determine what will reasonably accommodate an employee is to engage in the interactive process with the employee as many times as necessary to determine what type of accommodation, if any, will work for this particular employee’s situation.

The Cost of an accommodation does not make it unreasonable – even if the cost is $120K

In two recent federal decisions (Searls v. Johns Hopkins Hospital – Maryland — and Smith v. Loudoun County Public Schools – Virginia), two different federal district courts have confirmed a long-standing position — hiring a full-time American Sign Language (ASL) interpreter for a deaf employee may be a reasonable accommodation, even if doing so comes at great expense to the employer.

Searls v. Johns Hopkins Hospital

In Searls, the plaintiff was a deaf nurse who had attended the Johns Hopkins School of Nursing.  During her time as a student, the nursing school had provided the plaintiff with a full-time ASL interpreter when she was working her clinical placements at Johns Hopkins Hospital.

Following her completion of the program, the plaintiff was offered a full-time position at the hospital. Upon receipt of the offer, the plaintiff requested that the hospital provide her with a full-time ASL interpreter, which would cost the hospital $120,000 per year. The hospital refused to provide the requested accommodation (citing the cost of the accommodation as an undue hardship) and rescinded the offer. The plaintiff filed a disability discrimination lawsuit.

When arguing in Court, the hospital argued that the plaintiff’s requested accommodation would impose an undue hardship because the hospital had no money in its budget to make reasonable accommodations; therefore, to fund the accommodation, it would have to lay off two full-time nurses. This created an undue hardship.

The Court did not agree. Instead, the Court found that the size of the hospital’s budget for reasonable accommodations is “an irrelevant factor in assessing undue hardship.” Instead, the Court looked at the hospital’s operational budget of $1.7 billion and commented that a $120,000 accommodation constituted only 0.007% of that budget.

Smith v. Loudoun County Public Schools

In Smith, the plaintiff was a deaf teacher of special education for the hearing impaired. The plaintiff had requested that her employer provide her with a full-time ASL interpreter to assist her with her interaction with school administrators, teachers, staff members, parents, and students who don’t know ASL. (Prior to this request, the school was providing an on-call ASL interpreter, but the plaintiff claimed that the on-call interpreters were unreliable).

The school denied the plaintiff’s request for accommodation, stating that providing an on-call interpreter was sufficient accommodation. The school also claimed that providing a full-time interpreter would pose an undue hardship – based on the expense of providing an interpreter.

The Court rejected both of the school’s arguments.

With respect to the sufficiency of the accommodation, the Court found that the on-call interpreters did not fulfill the need for daily, verbal communication because those interpreters had to be requested between 3 and 7 days in advance.

With respect to the undue hardship, the school failed to provide any evidence relating to its operational budget and merely claimed that it had no budget allocated for this type of expense.

The Court was not persuaded. Like in Searls, the Court found that the fact that the school had no budget allocated for this expense was irrelevant, and quoted the Searls Court stating “even if it is correct that the salary of a full-time ASL interpreter would be twice the salary of a nurse, that in itself does not establish that an ASL interpreter would be an undue hardship.”

Take Home for Employers:

The case reminds employers, when it comes to undue burden, the court is looking to the entire operations of the entity. As such, if an employer is claiming that the cost of an accommodation is causing an undue burden, the employer must be prepared to provide specific evidence relating to their claims of undue hardship.  Unfortunately, as evidenced by these two cases, Courts are likely to find that the amount budgeted by an employer to cover ADA accommodations is irrelevant to determine undue hardship. Instead, the court are more likely to look at the comparison of the cost in relation to the size of the overall operational budget, which can make it difficult to prove undue hardship for a large organization.

Wisconsin Employers Beware – Disciplining an Employee for Misconduct Caused by Disability Can be Discrimination

In a recent case (Wisconsin Bell, Inc. v. Labor and Industry Review Commission), the Wisconsin Court of Appeals has found that an employer disciplining an employee for misconduct caused by his disability was discrimination in violation of the Wisconsin Fair Employment Act (WFEA). Rather than terminating an employee, the Court found that there are circumstances under the WFEA where an employer may be required to excuse the employee’s misconduct that could be caused by a known disability as a reasonable accommodation.

The Case:

This case involved employee at a call center who had a known disability (bipolar disorder). His primary job duties included answering phone calls and responded to incoming emails. After discovering that the employee had disconnected eight consecutive calls over a period of nine minutes without any explanation, the employee was suspended. During the disciplinary meeting to discuss the suspension, the employee provided the employer with letters from his psychiatrist and psychotherapist wherein it was disclosed that this employee suffered from a bipolar disorder.

Following his suspension, the employee started using a “health code,” which allows employees to go offline temporarily and stops incoming customer calls from going to that employee. During the activation of the health code, he sent the following message to his manager:

“TTYL.  Thank you.  Talk to you later and thanks for being there as one of my lesbian friends.”

When the operations manager responded, the employee replied, “[s]orry wrong window.”

Based on this email communication to his manager, the employer had reasonable suspicion that the employee had been chatting with coworkers while the health code was activated. This suspicion was later confirmed by the employer following a review of the employee’s online chats, which proved the employee had been misusing the “health code”.

The employer held another disciplinary meeting to discuss the online chat incident. At this meeting, the employee submitted more documentation from his psychiatrist and explained his actions were again related to his disability. Despite this explanation, the employee was terminated for ignoring customer calls.

As a result of the termination, the plaintiff filed a discrimination claim that suggested he was discharged because of his disability.

The Ruling

The Wisconsin Court of Appeals held that under the “inference method,” if an employee is discharged because of conduct that was a direct result of his or her disability, the discharge is, “in legal effect, because of that disability.” The court did, however, add two important qualifications to the inference method and these are as follows:

  1. The court noted that for the inference method to apply, the employee must provide evidence that the employer knew of the link between the employee’s disability and the conduct that resulted in the adverse employment action
  2. The court found that expert testimony may be required to establish the link when it is beyond the expertise of laypersons.

Takeaways for Employers

Although federal precedent under the ADA, generally upholds that employers can terminate employees for misconduct even if the misconduct is caused by a disability this case suggests otherwise. Employers in Wisconsin should give strong consideration to the Wisconsin Court of Appeals’ interpretation of the Wisconsin Fair Employment Act, which may require employers to reasonably accommodate or even excuse misconduct that can be caused by disability.