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
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
The Washington State Attorney General recently published a Guide (“Pregnant Workers’ Accommodation Rights”) which outlines pregnant employees’ civil rights under the Washington Healthy Starts Act.
As a refresher, the Washington Healthy Starts Act requires Washington employers with at least 15 employees in Washington state provide accommodations to pregnant employee, regardless of a pregnancy disability. Among the accommodations to be provided include, but are not limited to:
- Providing more frequent, longer, or flexible restroom breaks;
- Modifying a no food or drink policy;
- (Job restructuring, part-time or modified work schedules, reassignment to a vacant position, or acquiring or modifying equipment, devices, or an employee’s workstation;
- Providing seating or allowing the employee to sit more frequently if her job requires her to stand;
- Providing for a temporary transfer to a less strenuous or less hazardous position;
- Providing assistance with manual labor and limits on lifting;
- Scheduling flexibility for prenatal visits; and
- Any further pregnancy accommodation an employee may request, and to which an employer must give reasonable consideration in consultation with information provided on pregnancy accommodation by the department of labor and industries or the attending health care provider of the employee.
Continue reading NEW GUIDANCE: Washington State Attorney General Publishes New Guide on Pregnancy Accommodations
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
Earlier this year, South Carolina passed an amendment to the state’s Human Affairs Law, which requires employers with at least 15 employees to provide reasonable accommodations to employees with a “pregnancy-related condition” (i.e. medical needs arising from pregnancy, childbirth, or other related medical conditions), unless the employer can demonstrate the accommodation would impose an undue hardship. (See our article “South Carolina Adds to Existing Pregnancy Accommodation Requirements” for more information about this amendment).
To help employers better understand their obligations under this new law, the South Carolina Human Affairs Commission has published Frequently Asked Questions addressing the new amendment. It is recommended that all South Carolina employers review these FAQs.
Continue reading NEW GUIDANCE: South Carolina Publishes FAQs For New State Pregnancy Accommodations Act
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
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
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
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.
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.
On January 8, 2018, New Jersey Governor Chris Christie signed A2294 into law. This bill amends the New Jersey Law Against Discrimination (NJLAD) to include breastfeeding to the list of protected classes under the NJLAD.
With this amendment, which went into effect on January 8, 2018, employers are expressly prohibited from engaging in the following conduct:
- Refusing to hire breastfeeding applicants;
- Firing an employee because she is breastfeeding or otherwise discriminating against a breastfeeding employee in compensation and other terms, conditions, or privileges of employment; and
- Treating female employees you know or should know are “affected by breastfeeding” less favorably (e.g. with respect to workplace accommodation and leave policies) than employees not so affected but similar in their ability or inability to work.
In addition to the foregoing, employers are required to provide breastfeeding employees with reasonable accommodation, including a reasonable break time each day and a private location near the work area (but not a toilet stall) for the employee to express breast milk for her child – unless the employer can demonstrate that providing the accommodation would impose an “undue hardship” on the business.
Under the NJLAD, whether an accommodation is considered an undue hardship is determined by the following factors:
- The overall size of your business with respect to the number of employees, number and type of facilities, and size of the budget;
- The type of your operations, including the composition and structure of your workforce;
- The nature and cost of the accommodation, taking into consideration the availability of tax credits, tax deductions, and outside funding; and
- The extent to which the accommodation would involve waiver of an essential requirement of a job as opposed to a tangential or non-business necessity requirement.
This is a high standard to meet.
Take home for employers
Since this law went into immediate effect, New Jersey employers should verify that their current employment policies and practices relating to breastfeeding employees are compliant with the new law.