Tag Archives: interactive process

NEW CASE: Without More, Full-Time Attendance Is Not An Essential Job Function

In a recent case (Hostettler v. College of Wooster), the US Sixth Circuit Court of Appeals held that a requirement that an employee work full time, without a duties-based reason for the requirement.

In this case, the plaintiff was an HR Generalist at College of Wooster. The plaintiff had recently had a baby and, when she was released to return to work, her doctor provided a restriction that the plaintiff could only work part-time because the plaintiff was suffering from postpartum depression and separation anxiety.

Initially, the employer granted the requested accommodation – allowing the employee to work 5 half days per week.  The plaintiff worked that modified schedule for one month and then turned in a note from her doctor stating that she would need to continue working the modified schedule for an additional two months.  The next day, the employee was terminated.  The reason given – the department could not function properly because the plaintiff was not working full-time and working a full-time schedule was an essential function of the HR Generalist position.  The plaintiff filed a lawsuit claiming that her termination was discriminatory. Continue reading NEW CASE: Without More, Full-Time Attendance Is Not An Essential Job Function

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

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.

NEW LAW — Massachusetts Pregnant Workers Fairness Act

On July 27, 2017, Massachusetts Governor Charlie Baker signed the Massachusetts Pregnant Workers Fairness Act (House Bill 3680) into law.  Under the law, Massachusetts employers with 6 or more employees will be required to provide reasonable accommodations to employees for pregnancy and related conditions (including lactation, or the need to express breast milk for a nursing child).  This new law goes into effect on April 1, 2018.

Most importantly, the new law specifically adds “pregnancy or a condition related to said pregnancy including, but not limited to, lactation or the need to express breast milk for a nursing child” to the list of protected classes under the Massachusetts Fair Employment Practices Law.

Under the law, it will be unlawful for an employer to deny a pregnant (or nursing) employee’s request for reasonable accommodation unless the employer can prove that providing an accommodation will cause the employer an undue hardship (an action requiring significant difficulty or expense).

“Reasonable accommodation” may include, but are not limited to:

  • providing more frequent or longer paid or unpaid breaks;
  • providing time off to recover from childbirth with or without pay;
  • acquisition or modification of equipment or seating;
  • temporary transfer to a less strenuous or hazardous position;
  • job restructuring;
  • light duty;
  • private non-bathroom space for expressing breast milk;
  • assistance with manual labor; or
  • allowing the employee to work a modified work schedule.

Employers are required to engage in a timely, good faith and interactive process with the employee to determine effective reasonable accommodations that will enable the employee to perform the essential functions of the job.  For most accommodations, the employer may require the employee provide documentation from a health care professional about the need for a reasonable accommodation; however, documentation cannot be required for:

  • more frequent restroom, food and water breaks;
  • seating; and
  • limits on lifting over 20 pounds.

In addition, under the new law, it is unlawful for an employer to:

  • take adverse action against an employee who requests or uses a reasonable accommodation
  • deny an employment opportunity to an employee, if such denial is based on the need of the employer to make a reasonable accommodation relating to a known pregnancy;
  • require an employee affected by pregnancy to accept an accommodation that such employee chooses not to accept, if such an accommodation is unnecessary to enable the employee to perform the essential functions of the job;
  • require an employee to take leave of absence if another reasonable accommodation may be provided without undue hardship to the employer;
  • knowingly refuse to hire a person who is pregnant because of the pregnancy or pregnancy-related condition.

Notice Requirements

Employers must provide employees with written notice of the Act.  This written notice must outline the employee’s right to reasonable accommodations for pregnancy and related conditions.  The written notice must be provided to employees as follows:

  • new employees at time of hire;
  • existing employees by April 1, 2018; and
  • any employee notifying the employer of her pregnancy within 10 days of the date a pregnant employee informs the employer of her pregnancy.

Take Home for Employers

While the new law does not go into effect until April 1, 2018, Massachusetts employers should start reviewing their employee handbooks and make any necessary revisions to their policies relating to pregnancy and providing reasonable accommodation.  In addition, employers should start training their managers about the requirements of the new law.

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

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 documentEmployer-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.

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.