Tag Archives: Americans with Disabilities Act

Cautious Optimism for Holding Disabled Employees Accountable for Attendance Issues

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Many employers and HR professionals view disabled employees as being immune to disciplinary actions when they have attendance violations. This view is often based on past experience and the many negative “war stories,” that are often shared when employers are sued for disability discrimination – even after they believe that the were doing everything correctly.  The stress of these stories and experiences often causes business leaders to become overly cautious and implement practices where disabled employees are never terminated and never disciplined. While that might suit some situations, recent appellate court decisions have shown that such over-corrections might not be necessary in every case.

There are three recent decisions that come from the Court Appeals that point to the same conclusion – employers can consider attendance as essential to the function of just about and job and in some cases can terminate disabled employees for attendance related issues. The caveat of doing such terminations is that the attendance issues must not be for reasons that are protected leave under laws such as the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), and any state laws of this nature, including local sick leave laws. When unapproved absences are not related to a protected leave, these decisions show that courts have leaned in favor of employers being able to terminate disabled employees. Continue reading Cautious Optimism for Holding Disabled Employees Accountable for Attendance Issues →

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

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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

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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

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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 →

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

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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: Federal Court Finds Pregnancy Discrimination Act Protects Breastfeeding

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In a recent decision (Hicks v. City of Tuscaloosa), the U.S. Court of Appeals for the Eleventh Circuit recently found that the Pregnancy Discrimination Act (PDA) bars discrimination not only on the basis of pregnancy, but also on the basis of pregnancy-related physiological conditions such as breastfeeding.

The Case

In this case, the plaintiff was a female police officer who had returned from maternity leave.  Upon her return, the officer requested an alternative duty because her doctor informed her that wearing the required bulletproof vest could cause infection and prevent her from breastfeeding.  The officer had requested to be assigned to a position where wearing a bulletproof vest was not required and the employer refused.  As a result, the officer resigned and filed a lawsuit.

The Holding

The court held that the employer’s refusal to accommodate this employee constituted discrimination under the PDA.  In making this decision, the Court likened the officer’s situation to that of the employee in Young v. United Parcel Service, Inc. (where the U.S. Supreme Court held the PDA bars employers from refusing to accommodate pregnant employees when they provide accommodations for similarly situated employees who are not pregnant.)  Here, the officer was able to show that her employer had provided alternative duties to employees with temporary injuries.  As a result, the Court held the employer’s failure to provide the officer with an alternative duty constituted pregnancy discrimination.

Take Home for Employers

The key for employers to remember here is that the Pregnancy Discrimination Act is more expansive than one might initially assume.  Specifically, even if an employee’s pregnancy (or pregnancy-related condition) does not amount to a disability under the Americans with Disabilities Act, the employer still might be required to provide the employee with an accommodation under the PDA.

NOTE:  There are also many state laws that provide protections for pregnant employees.  Before refusing accommodation to a pregnant employee and/or taking any adverse action against that employee, be sure to review the laws in your state.

REMINDER — Engaging In The Interactive Process Is An Ongoing Duty

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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.

HELP! My Employee Keeps Submitting Ambiguous Doctor’s Notes Extending Her Leave of Absence!

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Managing an employee’s extended leave of absence is an employer’s worst nightmare – especially when the employee keeps submitting vague doctor’s notes extending the leave of absence, but providing no additional information about when (if?) the employee will be able to return to work.

When faced with this situation, many employers are uncertain of what they can do – especially since terminating the employee too early can readily lead to a discrimination lawsuit. As a result, in lieu of termination, most employers grant the extensions of leave. However, in a recent case (Whitaker v. Wisconsin Dept. of Health Services), the Court upheld the termination of an employee who only submitted vague and ambiguous doctor’s notes extending her ADA leave.

The Case:

In this case, the employee had been employed as an Economic Support Specialist for Milwaukee County in Wisconsin. The employee’s job was not overly complicated or specialized. She was a member of the team responsible for providing public assistance to county’s citizens. Her work included processing applications for benefits and answering phone calls.

In the summer of 2010, this employee went on FMLA leave for a medical condition (severe back pain). When her FMLA leave was exhausted, instead of returning to work, the employee submitted a doctor’s note extending her leave of absence by 9 days. The note simply read:

medical leave of absence until 11/17/10

Despite the vague nature of the note, the employer extended the leave of absence.

One week later, the employee submitted a second (equally vague) doctor’s note extending her leave of absence for an additional month. This note stated only:

medical leave of absence until 12/17/10

Following its receipt of the second note, the employer contacted the employee and informed her that it was considering terminating her employment. However, before any final decision was made, the employee was asked to attend a meeting to discuss her situation. The employee attended the meeting, but aside from reiterating that she was unable to return to work, the employee provided no further information or documentation supporting her need for additional leave.

The employer terminated the employee and the employee later sued the employer for discrimination in violation of the Americans with Disabilities Act.

The Court’s Finding

The court ruled that the employee’s termination was not discriminatory and dismissed the employee’s claims. In reaching its decision, the Court found that attendance was an essential function of the employee’s job and reaffirmed the basic principle that an employer can expect employees to report to work. Since this employee was unable to perform an essential function of her job, she was not protected under the ADA.

In support of its decision, the Court explained:

“[Joyce] did not offer any evidence regarding the effectiveness of her course of treatment or the medical likelihood of her recovery. The only medical documents she supplied were two terse doctor notes. One stated “medical leave of absence until 11/17/10” and the other stated “medical leave of absence until 12/17/10.” These notes did not explain whether she was even receiving treatment, let alone the likely effectiveness of the treatment.”

Take Home for Employers:

While this decision does not support the proposition that an employer can “fire at will” when faced with a vague doctor’s note and an employee seeking to extend an unpaid medical leave of absence, it does give employers important guidance on how to handle these situations.

Most importantly, this case teaches employers that they are allowed to be more assertive and seek more information when in receipt of a vague doctor’s note. The Court set forth the “bare minimum” information that an employer can expect to see in a doctor’s note:

  • Whether the employee is receiving treatment
  • The likely effectiveness of the treatment
  • The medical likelihood that leave would enable her to return to work regularly

The implication – when in receipt of a vague doctor’s note, as a part of the interactive process, employers should follow up with the doctor to at least attempt to receive the above information.

This implication is supported by the EEOC’s resource document “Employer-Provided Leave and the Americans with Disabilities Act”, which supports the idea that employers can seek information from the employee’s doctor (with the employee’s permission) before making a decision on an employee’s leave request. Specifically, the employer can ask for:

  • the specific reason(s) the employee needs leave (for example, surgery and recuperation, adjustment to a new medication regimen, training of a new service animal, or doctor visits or physical therapy);
  • whether the leave will be a block of time (for example, three weeks or four months), or intermittent (for example, one day per week, six days per month, occasional days throughout the year); and
  • when the need for leave will end

In addition, employers may specifically ask the employee’s doctor to respond to questions drafted by the employer and designed to enable the employer to understand:

  • the need for leave;
  • the amount and type of leave required; and
  • whether reasonable accommodations other than (or in addition to) leave may be effective for the employee (perhaps resulting in the need for less leave).

Finally, when the employee is seeking an extension of ADA leave, the EEOC’s guidance confirms that employers are able to obtain even more information regarding the employee’s need for additional leave. According to EEOC, if an employee requests additional leave that will exceed an employer’s maximum leave policy or is continuous in nature, the employer should again engage in an interactive process, including obtaining from the health care provider:

  • Medical documentation specifying the amount of the additional leave needed;
  • The reasons for the additional leave;
  • Why the initial estimate of a return date proved inaccurate; and
  • Information the employer considers relevant in determining whether the requested extension will result in an undue hardship

Finally, when communicating with an employee (or his/her doctor) about this issue, we recommend that you work with an HR Professional or qualified employment attorney.

“He Didn’t Say Hi To Me!” — The Reality Of Retaliation

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In a recent decision (Bien-Aime v. Equity Residential), the United States District Court for the Southern District of New York held that while an employee’s ADA claim had no merit, the employee’s retaliation claim survived summary judgment, even though there had not been any adverse employment action and the alleged retaliatory conduct was merely “petty slights or trivial inconveniences”.

The Case

In this case, the employee was a groundskeeper at an apartment building in Manhattan who had filed a complaint with the state agency that he was being discriminated against because of his disability. Following the filing of this complaint, the employee filed lawsuit against his employer claiming that he had been discriminated against in violation of the Americans with Disabilities Act and had faced retaliation for filing the complaint.

The interesting part of this case, the employee was still working for the employer when he filed the lawsuit and had not faced any other tangible adverse employment action (e.g. demotion, loss of pay, etc.). Instead, the employee based his retaliation claim on the following types of conduct:

  1. The general manager of the apartment building “stopped saying good morning to him”;
  2. His direct supervisor “spoke to him without a ‘warm welcome’ in his voice’” and “continually monitored him at work”; and
  3. Both the general manager and the supervisor “talked to him like he was a criminal.”

In its motion for summary judgment, The employer argued that the employee’s retaliation claim failed because the employee had not faced any type of adverse employment action and the alleged acts were nothing more than “petty slights or trivial inconveniences” that are not actionable as retaliation under the ADA.

The Court disagreed, holding that even though the employee had not suffered any change in the terms and conditions of his employment as he was never discharged or demoted, and his job title, benefits, schedule, and pay all stayed the same, the different and arguably hostile treatment of the employee by his superiors would “dissuade a reasonable worker from making or supporting a charge of discrimination.” As a result, the retaliation claim will be heard by a jury.

Take home for employers

While this claim has not yet been resolved, it teaches all employers a valuable lesson regarding the broad spectrum of conduct that can be considered retaliatory. Many state and federal statutes (like the ADA, Title VII, and related state statutes) prohibit employers from discriminating against a person in a protected class. These statutes also prohibit employers from retaliating against employees for seeking statutory protections. Unlawful retaliation encompasses not only “punishing” the employee for engaging in the protected activity, but also engaging in conduct that could “send a message” to other employees that they will be treated differently if they complain – in other words, discourage other employees from seeking statutory protections.

In order to protect your organization from a retaliation claim, it is critical that all employers implement a policy prohibiting unlawful retaliation. In addition, all supervisory and Human Resources staff should receive training about retaliation and how to properly respond to complaints. Most importantly, when a complaint is received, managers, and supervisors should be reminded of their non-retaliation obligations.

What Employers Can Learn From This “Textbook” Disability Discrimination Case

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The “post offer, pre-employment medical examination” – it’s a popular tool used by many employers during the hiring process. However, if improperly administered, use of this type of examination can expose an employer to liability – as one employer learned in a recent case (EEOC v MGH Family Health Care) – a case the Court dubbed “a textbook case for unlawful discrimination under the regarded-as-disabled prong of the ADA.”

The Case

In this case, the employer (a medical center) hired a new employee and she was advised that she would be required to complete a “post-offer” physical examination. Under the employer’s general practice, all employees were required to undergo a “post-offer” physical with its third-party medical evaluator prior to beginning work.

While this type of practice typically poses no problem under the ADA, with respect to this particular employee, she was assigned employment duties prior to undergoing the physical examination. In addition, the third-party medical evaluator was not provided a copy of the employee’s job description before performing the examination.

The employee completed the physical examination and, while the results of the examination were normal, the employee’s medical records revealed some concern for the examiner and he put her on a “medical hold” and recommended the employee complete a functional capacity exam.

Two weeks after the employee had begun work (without incident), the employer notified the employee of the medical hold and informed her that she would need to undergo (and pay for) the functional capacity exam. The employee was also encouraged to obtain medical clearance from her own doctor relating to her ability to perform the job.

The employee provided the requested medical clearance to the examiner, which stated she was able to perform the job. In addition, the employer revised her job description to include lower lifting requirements. However, despite this information (and the fact that the employee had been performing the job for 5 weeks), the examiner refused to change his recommendation for a functional capacity exam.

Rather than explore the situation further with the employee, the employer terminated the employee – without having her complete the functional capacity exam.

Following her termination, the employee filed a lawsuit claiming disability discrimination. The court agreed — finding that there was “direct evidence of unlawful discrimination.”

What was this direct evidence? The employer’s admission that it fired the employee because it perceived her impairments as rendering her ineligible for the position – and it made that determination without first completing any type of individualized inquiry by the third-party medical evaluator. In doing this, the employer engaged in “textbook” disability discrimination in that it regarded the employee as having an impairment under the ADA, and ultimately determined she was unfit to continue to perform her job responsibilities because of that perceived disability without engaging in the interactive process.

Take away for employers

If employers wish to utilize post-offer, pre-employment examinations, they should be careful to follow the EEOC guidelines for disability related inquiries. Title I of the ADA strictly limits the circumstances under which employers may make disability related inquiries or require medical examinations of applicants. Once the employer has examined all non-medical information and has made a “real offer” of employment, it may require all entering employees in the same job category to submit to a medical exam. The employee should not begin work until the exam is complete. If the company withdraws the offer of employment it must show that the individual is unable to meet the essential functions of the job.