Tag Archives: disability

Cautious Optimism for Holding Disabled Employees Accountable for Attendance Issues

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

2017 EEOC Litigation Data Released

The EEOC recently released the national enforcement data for the 2017 fiscal year.  According to this report, the total number of EEOC charges received in 2017 decreased from 91,503 received in 2016 to 84,254 received in 2017.

In addition, according to the report, in 2017, the EEOC resolved 99,109 charges and secured more than $398 million for victims of discrimination in private, federal and state and local government workplaces.  Most notably, the EEOC received 6,696 sexual harassment charges and 1,762 LGBT-based sexual discrimination charges and obtained $46.3 million and $16.1 million in monetary benefits respectively for resolving these charges.

Retaliation claims remain the most popular claims filed. Race claims, Disability claims, Sex/Gender claims and Age discrimination charges round out the top five.  The total breakdown of charges by type is as follows:

Retaliation 41,097 48.8%
Race 28,528 33.9%
Disability 26,838 31.9%
Sex/Gender 25,605 30.4%
Age 18,376 21.8%
National Origin 8,299 9.8%
Religion 3,436 4.1%
Color 3,240 3.8%
Equal Pay Act 996 1.2%
Genetic Information Non-Discrimination Act 206 0.2%

In addition, the EEOC has also released the breakdown of claims received by state.  The top 10 states are:

   Type of Charge
Total Charges Retaliation Race Disability Sex/Gender Age
Texas 8,827 4,740 2,999 2,642 2,740 1,975
Florida 6,858 3,486 2,153 2,222 2,041 1,366
California 5,423 2,752 1,811 1,915 1,500 1,374
Georgia 4,894 2,434 1,864 1,362 1,596 807
Pennsylvania 4,516 2,133 1,195 1,647 1,293 1,118
Illinois 4,392 2,382 1,663 1,414 1,399 1,032
North Carolina 3,752 1,854 1,447 1,210 1,034 751
New York 3,690 1,711 1,095 1,052 1,142 858
Virginia 2,730 1,201 966 864 818 518
Tennessee 2,640 1,318 970 808 815 528

The full state breakdown of claims is available here.

NEW LAW – Birmingham City Council Passes Nondiscrimination Ordinance

On September 26, 2017, the Birmingham City Council passed a new nondiscrimination ordinance, which is the first of its kind in Alabama.

Under this new law, the City of Birmingham has prohibited discrimination on the basis of a person’s real or perceived race, color, religion, national origin, sex, sexual orientation, gender identity, disability, or familial status.

This new law applies to housing, public accommodations, public education, and employment. There are only two exceptions for compliance — one for religious corporations and one for employers with bona fide affirmative action plans or seniority systems.

In addition, the new law creates a Human Rights Commission that will advise the Mayor and Council on matters related to eliminating discriminatory practices within the City.

The ordinance still needs to be signed into law by the mayor, in order for it to become effective.  However, the mayor has indicated that he will sign it into law immediately.

IMPORTANT REMINDER for Michigan Employers Regarding Reasonable Accommodation

Did you know that Michigan’s Persons with Disabilities Civil Rights Act provides a statutory defense to an employee’s failure to accommodate claims, but ONLY IF you include key language in your Employee Handbook or a posted workplace notice.

Under the Michigan’s Persons with Disabilities Civil Rights Act (Section 210(18)):

A person with a disability may allege a violation against a person regarding a failure to accommodate under this article only if the person with a disability notifies the person in writing of the need for accommodation within 182 days after the date the person with a disability knew or reasonably should have known that an accommodation was needed.

However, for this defense to apply, an employer must “post notices or use other appropriate means to provide all employees and job applicants with notice” of these requirements.

One way that notice can be provided is by including the required language in your Employee Handbook.

In addition, the most recent version of Michigan’s Discrimination Law poster includes a note to employees and applicants with disabilities regarding the 182-day time limit and required writing.

Recommendation for Employers

The Michigan Department of Civil Rights website warns employers “a business that fails to provide adequate notice to its employees [of this legal provision] may waive the ability to use the time limit as a defense.”  To avoid such a waiver, it is recommended that all Michigan employers post the most recent version of Michigan’s Discrimination Law poster in their workplace and consider revising their Employee Handbooks to include notice of this provision.

Please be advised, in order to comply with the federal Americans with Disabilities Act, an employer is still required to engage in the interactive process with any employee who needs an accommodation, even if the employee did not comply with the required procedure.  Adding the recommended language to a policy and/or posting the most recent poster only provides a defense under Michigan’s Persons with Disabilities Civil Rights Act.

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.

Remember “Magic Words” are not necessary when requesting FMLA or reasonable accommodation

In a recent decision (Molina vs. Wells Fargo Bank, N.A.), the Utah federal district court issued an important reminder to employers nationwide regarding employee requests for reasonable accommodation based on a disability and/or FMLA leave. Simply put – employees are not required to utter any “magic words” when seeking a reasonable accommodation or when requesting FMLA leave. Merely providing an employer with information to place the employer “on notice” that the employee might need a reasonable accommodation or FMLA leave is sufficient.

What happened?

In this case, an employee of Wells Fargo Bank (who has epilepsy) had requested time off because she was concerned that the stress from her job could trigger her medical condition and cause her to have a seizure.

Instead of engage in the interactive process with this employee and discuss her request, Human Resources denied her request and told the employee that her epilepsy was not a disability and that she did not qualify for leave under the FMLA.   The employee also approached her manager with her request and he also denied her request (although, he did suggest that leave may be possible in a couple of months).

The employee resigned and filed a lawsuit against Wells Fargo claiming, among other things, disability discrimination and interference with her FMLA rights.

Wells Fargo attempted to dismiss the claim on demurrer (essentially claiming that the employee failed to plead sufficient facts to support her claims). The Court disagreed finding that the plaintiff had properly plead a claim for disability discrimination. While this case is far from over (and at this point the Court’s decision has no bearing on the strength of the plaintiff’s claims), the Court did criticize Wells Fargo for denying her requests without attempting to explore possible accommodations.

Significance for Employers

The mistake made by Wells Fargo is a mistake that employers commonly make. There is a mistaken belief that an employee must specifically ask for a “reasonable accommodation because of their disability” or specifically reference “FMLA” (or the state equivalent) leave before an employer’s obligations to engage in the interactive process and/or notify an employee of his/her rights under FMLA are triggered.

This is not the case. Instead, employers are required to engage in the interactive process and/or provide the appropriate leave information to an employee when the employer receives enough information to put the employer on notice that accommodation or leave may be required for this employee. Information provided by the employee may specifically reference a medical condition (e.g. I have epilepsy); or, it may be as vague as “I need time off to help my mom.” In both cases, the employer has a legal obligation to begin a conversation with the employee about possible accommodation(s) and/or leave rights that may be available.

It is recommended that employers remind their managers and HR staff about the scope of the company’s obligations to employees with respect to both providing reasonable accommodation to employees and advising employees of their leave rights.


2016 EEOC Litigation Data Released

The EEOC recently released the national enforcement data for the 2016 fiscal year.  According to this report, the total number of EEOC charges received in 2015 increased from 89,385 received in 2015 to 91,503 received in 2016.

In addition, according to the report, in 2016, the EEOC resolved 97,443 charges and secured more than $482 million for victims of discrimination in private, federal and state and local government workplaces.

Retaliation claims remain the most popular claims filed. Race claims, Disability claims, Sex/Gender claims and Age discrimination charges round out the top five.  The total breakdown of charges by type is as follows:

42,018 45.9%
Race  32,309 35.3%
Disability 28,073 30.7%
Sex/Gender 26,934 29.4%
Age 20,857 22.8%
National Origin 9,840 10.8%
Religion 3,825 4.2%
Color 3,102 3.4%
Equal Pay Act 1,075 1.2%
Genetic Information Non-Discrimination Act 238 0.3%

In addition, the EEOC has also released the breakdown of claims received by state.  The top 10 states are:

Type of Charge
Total Charges Retaliation Race Disability Sex/Gender Age
Texas 9,308 4,633 3,244 2,775 2,765 2,000
Florida 7,610 3,530 2,285 2,221 2,332 1,661
California 5,870 2,937 1,905 1,912 1,560 1,517
Georgia 5,273 2,577 2,165 1,462 1,684 1,028
Illinois 5,072 2,327 2,255 1,466 1,325 1,633
Pennsylvania 4,564 1,964 1,228 1,646 1,255 1,198
North Carolina 4,372 2,077 1,705 1,384 1,265 885
New York 3,740 1,604 1,084 1,061 1,202 865
Alabama 3,371 1,211 1,865 647 934 503
Virginia 2,945 1,242 1,069 921 881 583

The full state breakdown of claims is available here.

Frequently Absent Employees Require Careful Management under the ADA

In a recent case, Williams v AT&T Mobility Services LLC, we are given some much-needed advice on the scope of the employer’s duty to accommodate. In this case AT&T showed that they communicated regularly with the employee, applied its attendance policy flexibly, and granted generous leave before taking the final termination step.

Kirsten Williams worked as a Customer Service Representative in AT&Ts call center from 2006 to 2014. Like most call centers, regular attendance is required. When a CSR is absent calls must be rerouted, which can adversely impact wait times, quality of service and employee morale. AT&T’s attendance policy seeks to control absenteeism by assigning “attendance points” to unscheduled absences. Eight or more points are grounds for termination. FMLA leave, AT&T’s short term disability and ADA accommodation are excluded from points.

Williams had attendance problems for most of her employment. From 2007 to 2014, she received written warnings for excessive accumulation of attendance points.

She was absent from work most of 2013 due to her depression and anxiety attacks and she used FMLA and STD to cover her time off. She performed no work from January to July 2013, worked a few days in August before returning to STD in September and remained on leave October and large parts of November and December 2013.

Her absenteeism continued in 2014. Her supervisor discussed her attendance in both January and February since she had nearly accumulated enough points for termination. She worked only sporadically in March, and after April 9, she ceased to work entirely. She was not eligible for FMLA due to not working 1,250 hours the preceding year. She obtained STD leave for April but was denied after April 27, 2014, because of insufficient medical documentation.

AT&T repeatedly asked Williams about her intent to resume working. Each time she indicated that she was not ready and requested additional leave. AT&T initially granted the leave extensions, but in June of 2014, after Williams failed to provide sufficient information from her healthcare providers regarding her need for leave, the leave extensions were denied and Williams was terminated.

After her termination, Williams filed a lawsuit claiming that AT&T failed to accommodate her disability. She argued that she would have been able to work if only she had been allowed a flexible start time and ten-minute breaks every two hours, as her doctor had recommended.

The court determined that her proposed accommodation would not have solved her attendance problems. The court also determined that more leave was not required. Additional leave was not a reasonable accommodation because her doctor could not determine when she could return and she failed to improve during her previous leaves. She was not qualified for the job.

Take away for employers

  • Have clear attendance expectations and attendance policies.
  • Be consistent in taking disciplinary action and document your process
  • Communicate often and be flexible and patient
  • Grant your leave according to policy and past practice
  • Document your request to return to work in writing prior to termination
  • It is a good practice to consult with a labor law attorney prior to denying leave as an accommodation

New EEOC Focus — Prescription Drug Use

In two recently filed lawsuits, the EEOC has sent the message to all employers that it is increasing its scrutiny of employer actions taken against prescription drug users.

Lawsuit #1 – Failure to Hire Due to Prescription Drug Use

In the first instance, the EEOC filed a lawsuit against a South Dakota casino who failed to hire a job applicant after she tested positive for drug use following a pre-employment drug test. The applicant suffered from a back and neck impairment and took legally prescribed pain medication for this medical condition. After failing the drug test, the applicant tried to explain to the casino that the positive drug test result was caused by her pain medication. Even though the applicant told the casino that she would provide additional information if needed, the casino refused to hire her.

In its lawsuit, the EEOC is arguing that the casino’s refusal to hire an applicant taking lawful prescription drugs because of a disability violates the ADA. As explained by the EEOC, “employers cannot refuse to hire someone simply because she takes prescription drugs.” Instead, the employer has an obligation to engage in the interactive process with the applicant to determine whether the applicant can perform the essential functions of the position.

Lawsuit #2 – Terminating an Employee for Taking Prescription Pain Medication

In the second instance, the EEOC filed a lawsuit against a Georgia medical group who terminated one of their doctors because he was taking legally prescribed pain medication. The doctor was undergoing treatment for a chronic pain condition that limited the functioning of his musculoskeletal and neurological systems and the treatment included taking prescribed pain medication and receive spinal injections. After learning of this treatment, the medical group terminated the doctor because of concerns that the doctor would be unable to perform his job safely and competently while taking these medications.

While this appears to be a legitimate concern, the EEOC is arguing the medical group violated the ADA because it failed to engage in the interactive process with the doctor to actually determine whether the doctor could have performed his job safely and competently. Instead, the medical group drew its own conclusions without engaging in any dialogue with the doctor. As explained by the EEOC, ” employers have an obligation to conduct individualized assessments when they have a concern about an employee’s ability to safely perform his or her job duties. The EEOC will continue to hold employers accountable when they summarily dismiss employees based on unsubstantiated fears about a perceived disability.”

Take Home for Employers

These lawsuits serve as a reminder to all employers of the importance of (1) engaging in an interactive process with job applicants and employees and (2) providing reasonable accommodations to those taking prescription drugs for medical conditions.

California Court Expands Disability definition and employer’s CFRA Obligations

In a recent decision (Soria v. Univision Radio Los Angeles, Inc.), the California Court of Appeals expanded the definition of “disability” and an employer’s CFRA obligations.

In this case, the plaintiff had notified the employer that she had been diagnosed with a potentially cancerous stomach tumor and, as a result of that diagnosis, the plaintiff missed some work due to medical appointments. After the plaintiff notified the employer that she may need surgery, she was terminated. The plaintiff later filed a lawsuit against her former employer for disability discrimination and retaliation for requesting CFRA leave.

One of the key issues in the case was whether the plaintiff was “disabled” under California law (and thereby protected under the Fair Employment and Housing Act). According to the employer, since the plaintiff’s tumor was asymptomatic and did not itself interfere with her work, the plaintiff was not disabled. The Court, however, found otherwise. The Court found that the plaintiff’s action of seeking medical treatment for her medical condition, which at times caused her to miss work, did interfere with work; and work is a major life activity for FEHA purposes.   As a result, the Court held that the plaintiff was potentially disabled for purposes of California law and further found that her termination could have been discriminatory because (1) her disclosure of the tumor and need for surgery was close in time with her termination; (2) her tardiness had been a problem throughout her employment, including many years prior to the alleged incidents; and (3) the employer had given her positive performance reviews prior to the alleged incidents.

With respect to the CFRA leave, the employer argues it had insufficient notice from plaintiff to trigger CFRA leave requirements because she did not provide information concerning the duration of the leave. The Court, however, disagreed. The Court held that the plaintiff’s mention of her need for surgery was sufficient information to place the employer on notice for her need for leave and thereby obligated the employer obtain additional details about the leave, such as the duration of the leave itself.

Take Home For Employers

This case has two important “takeaways” for California employers. The first is that employee absences from work caused by medical appointments (rather than incapacity from the underlying condition) may constitute a limitation on a major life activity (work) and may support a finding that the employee is “disabled” for purposes of California law. The second is that an employee’s failure to advise the employer of the duration of his/her leave does not eliminate an employer’s CFRA responsibilities. Once notified of an employee’s need for leave, it is the employer’s responsibility to obtain sufficient information to determine whether CFRA applies.