“Shooting fish in a barrel” is our way of describing the EEOC’s targeting of heath care providers for disability discrimination claims under the Americans With Disabilities Act (“ADA”). See our most recent post on December 13, 2013 entitled “When Will Medical Providers Learn Not To Be ‘Fish In A Barrel’ To Be Shot By The EEOC?,” and cases and commentary in our posts of August 3, 2013, September 6, 2013, and October 19, 2013.
The EEOC has declared that one of its six national priorities set out in its Strategic Enforcement Plan (SEP) involves the ADA, and it takes no great insight to discern that going after hospitals, nursing homes, rehabilitation centers and medical practices is the an easy way to score for the EEOC.
Two lawsuits filed against health care facilities have just been settled by the EEOC. New York’s Silvercrest Center for Nursing and Rehabilitation has agreed to pay $25,000 to settle an ADA suit which alleged that a nurse assistant with a back injury was fired because she submitted her request for medical leave on the wrong company form (and the company refused to accept her doctor’s supporting letter).
As we all know by now (hopefully), an employer must engage in an “interactive process” with an employee who requests an accommodation for a disability, and provide a “reasonable accommodation” unless it would create “an undue burden.” Substance matters more than form — as an EEOC attorney in this case said: “When a disabled employee requests a reasonable accommodation, employers must listen. The substance of the request is what matters, not whether the employee submits the request on any particular form.”
In a second settlement, North Carolina operators of a nursing and rehabilitation center known at various times as Britthaven of Henderson or Kerr Lake Nursing & Rehabilitation Center agreed to pay $50,000 to an employee diagnosed with breast cancer who was fired for absence after her request for medical leave to have surgery was denied. “We hope that this case reminds employers that they must accommodate disabled employees’ requests for leave unless granting leave would pose an undue hardship,” noted the EEOC.
Once again we ask: When Will Medical Providers Learn Not To Be “Fish In A Barrel” To Be Shot By The EEOC?