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Bill Egan writes:

Under the Americans With Disabilities Act (ADA), a covered employer must provide reasonable accommodations to disabled employees, unless doing so would cause an undue hardship on the employer. Generally, an employer’s duty to reasonably accommodate is initiated by a request for an accommodation from a disabled employee or someone speaking on the employee’s behalf.

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Most courts have held that a request for accommodation from an employee is a “predicate requirement” to the interactive process for determining whether a reasonable accommodation can be made and what that accommodation will look like. The ADA does not require an employer to speculate about the accommodation needs of employees and applicants.

That has now changed, at least in the Eighth Circuit.  In Kowitz v.Trinity Health, a hospital respiratory therapist returned to work under a lifting restriction after undergoing spine surgery and exhausting her 12-week FMLA leave.  Although the hospital initially accommodated this restriction, it terminated the therapist’s employment after she advised that her doctor restricted her for four months from performing the physical demonstration portion of the “basic life support” recertification process, a departmental requirement.

The District Court granted summary judgment to the hospital concluding that Kowitz was not qualified to perform the essential functions of her job because she was not certified to provide basic life support.  The court further held that because Kowitz never requested a transfer to another position, the hospital was under no obligation to reassign her to a position that did not require the basic life support certification.

The Eighth Circuit reversed, over a strongly worded dissent, holding that an express request for assistance is not needed to trigger an employer’s duty to discuss the reasonable accommodation option with an employee.  The court held, “Though Kowitz did not ask for a reasonable accommodation of her condition in so many words, viewing the facts in the light most favorable to Kowitz, her notification to her supervisor that she would not be able to obtain the required certification until she had completed physical therapy implied that an accommodation would be required until then.”

The lesson from Kowitz is if the facts known to the employer about an employee’s disability are sufficient to make the employer aware of the possible need for a reasonable accommodation, the employer is legally obligated to engage in the interactive process to determine if indeed the employee needs such an accommodation and whether an accommodation can be made without posing an undue hardship on the employer.

Bill Egan is a partner in the Labor & Employment Department, resident in Fox’s Minneapolis office.

Employee Handbook
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In newly published guidance, the Equal Employment Opportunity Commission (“EEOC”) discusses employer leave policies and the Americans with Disabilities Act (“ADA”). This guidance is significant for a number of reasons.  First, ADA-related developments feature prominently in the EEOC’s most recent enforcement plan. Second, alleged ADA violations continue to rank high on the list of grounds for which the EEOC both receives complaints and ultimately initiates lawsuits. Third, the interaction of ADA and employer leave policies adds another wrinkle to the complex interaction of laws at the federal, state, and local level that require paid or unpaid leave in some fashion.

The Relevant ADA Requirements

Before discussing the EEOC’s guidance, a brief refresher on the ADA “basics” may prove helpful. The ADA prohibits disability-based discrimination in employment and requires covered employers to provide reasonable accommodations to employees with disabilities. ADA regulations define “reasonable accommodation” as “any change in an employee’s work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment accommodation.”

Under this definition, a broad variety of modifications to the work environment could potentially be reasonable accommodations, including leave. Potential accommodations, however, are not reasonable if: 1) they require eliminating an essential function of the job, or 2) they would cause undue hardship to the employer. A determination of undue hardship is a case-by-case analysis of the effect of the proposed accommodation on the employer’s operations or finances.

An employee who requests an accommodation triggers the “interactive process,” which, in broad terms, can be thought of as a dialogue between employer and employee seeking to identify the precise limitations of the disability and the potential reasonable accommodations that could overcome those limits. The employee does not need to use any specific phrasing to request an accommodation.

So how does the ADA affect employer leave policies?

Equal Access to Leave                                                                                            

Employers may not discriminate in employment on the basis of an individual’s disability. In the leave context, this means when an employee with a disability requests leave within the employer’s existing policies, the employer should treat that employee the same as employees without disabilities who request leave. The EEOC highlights this requirement with an example:

Example 2: An employer permits employees to use paid annual leave for any purpose and does not require that they explain how they intend to use it. An employee with a disability requests one day of annual leave and mentions to her supervisor that she is using it to have repairs made to her wheelchair. Even though he has never denied other employees annual leave based on their reason for using it, the supervisor responds, “That’s what sick leave is for,” and requires her to designate the time off as sick leave. This violates the ADA, since the employer has denied the employee’s use of annual leave due to her disability.

Leave as a Reasonable Accommodation

The EEOC’s guidance highlights the role leave can play as a reasonable accommodation. The EEOC’s guidance states that employers are required to consider unpaid leave as a reasonable accommodation to an employee who has a disability, even if:

the employer does not offer leave as an employee benefit;

the employee is not eligible for leave under the employer’s policy; or

the employee has exhausted the leave the employer provides as a benefit (including leave exhausted under a workers’ compensation program, or the FMLA or similar state or local laws).

Employers need not provide unpaid leave as a reasonable accommodation if doing so would create an undue hardship. Moreover, the EEOC cautions employers should not penalize employees who use leave as a reasonable accommodation, as doing so may be considered retaliation that violates the ADA.

Potential Red Flags

The EEOC guidance highlights leave-related policies where employers may run into ADA trouble.

Maximum Leave Policies are common to many employers in various forms. Sometimes these policies are referred to as “no fault” leave policies.  These policies often place caps on the amount of leave employees can use. Limits on Unplanned Absences are another policy tool some employers implement, and these policies typically spell out a set number of unplanned days off an employee is permitted to take before disciplinary action may occur. As the EEOC correctly notes, employees with disabilities aren’t categorically exempt from these policies. Nevertheless, employers may need to adjust these policies as a reasonable accommodation for an employee with a disability, unless the modification would constitute an undue hardship.

100% Healed Policies. Sometimes, employers may require an employee with a disability to be 100% healed (meaning, they have no medical restrictions) before returning to work, such as, for example, after a lengthy medical leave related to surgery. If such an employee is able to perform the essential functions of his or her job with our without reasonable accommodation, requiring that employee to be 100% healed before returning to work may violate the ADA. While there are exceptions – including undue hardship and the direct threat defense – employers maintaining 100% healed policies should tread carefully to ensure ADA compliance.

Bottom Line

In light of the EEOC’s new guidance on this topic, what should employers do?

  • Self-Audit. Review internal policies, procedures, and employee job descriptions for ADA compliance.
  • Train. Ensure that managers, supervisors, and HR professionals, as appropriate, are regularly trained on how to respond to accommodation requests, including leave as a possible accommodation.
  • Document, document, document.  Keep detailed records of discussions with employees that involve the interactive process and any decisions on requests for accommodation (and remember – there are no “magic words” an employee must use when requesting an acommodation).
  • Consult Counsel. Work with knowledgeable counsel early on to ensure ADA compliance and reduce legal exposure.

An Albuquerque nursing home was sued by the EEOC earlier this year for allegedly violating the ADA.  It has now agreed to settle for $145,000.   (Link: http://www.eeoc.gov/eeoc/newsroom/release/12-2-14a.cfm).

An employee with diabetes and a heart condition requested “a reasonable accommodation” – an eight-hour day instead of a longer one. Instead, the EEOC said, the company fired him – while he was on approved leave and recovering from a heart attack — because of his disabilities and/or because he requested accommodation.

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“The law is clear,” said the EEOC.  ”Employers have a legal obligation to explore reasonable accommodations for disabilities — and limiting [plaintiff] to eight-hour days was certainly in that category.  Companies cannot refuse to provide reasonable accommodations to their employees unless there is an undue hardship to the company.”

Moreover, the EEOC said at the time of the filing that “Employers have an important responsibility to honor approved leave requests and refrain from discriminating based on disability while an employee is recuperating. One would expect that health and rehabilitation companies at least would understand that. We found, after our investigation, that terminating Mr. Johnson while he was out on approved leave and obtaining medical treatment violated the ADA (emphasis added).”

The EEOC now says that “One would hope that a health and rehab center in particular would be more sensitive and attentive to the rights and needs of employees with medical conditions.”

Takeaway:   You must engage in an interactive process with a requesting employee to seek a reasonable accommodation.  If you don’t, especially if you are a heath care or medical facility, you are inviting EEOC intervention, if not taunting the EEOC to target you!

 

If you were a critical care hospital would you fire a nurse with cancer who asked for an accommodation to get chemotherapy?  Even if you had meritorious grounds, would you do it, given the stark appearance of an ADA violation, as well as the horrendous publicity?

We wrote about such a case in a post a year ago called “Critical Care Hospital Fires Nurse Who Asked For Chemo Accommodation.” It discussed a newly-filed EEOC suit against a North Carolina full-service critical access hospital for refusing to accommodate a registered nurse’s need for cancer chemo treatments, and then firing her.

We asked then:  “What were they thinking?”

cancer care : Mid adult woman talking to doctor about her diagnosis

We don’t know, but after a year of litigation with the EEOC, the facility has just agreed to a settlement of $85,000.

It was only a matter of time.

And an EEOC attorney underscored our constant warning that the EEOC was targeting health care facilities for alleged ADA discrimination:  “One would hope that hospitals and other health care facilities would understand and respect an employee’s need for an accommodation resulting from cancer treatments.”

The EEOC Has Targeted Medical Facilities For ADA Violations For A Long Time

We have a particular penchant for, among other things, tracking new cases filed (or settled) by the EEOC accusing medical and health care providers of discriminating against people with disabilities (mainly because, as employment attorneys, we are amazed at how obtuse and oblivious some employers can be).

In that same post last year we noted that the EEOC had also just sued a Michigan operator of a chain of assisted living facilities for violating the ADA.  The claim – after hiring an administrator of the new facility, the company learned from her at her physical examination that she suffered from epilepsy.  What did they do?  Fired her the first day that she worked.

And then, “as a postscript,” we mentioned that the EEOC had just reported that a second North Carolina health care facility agreed to pay $51,000 to settle an ADA suit brought on behalf of a certified nursing assistant with asthma who was required by a new company policy to supervise residents during smoking breaks, which made her asthma worse. She submitted a doctor’s note and requested to be excused from this chore.

She was fired.

asthma and smoking : smoking causes disease in children

Do Not Succumb To “Baseless Myths, Fears And Stereotypes About Persons With Disabilities 

We cited EEOC attorneys who said that the EEOC “will vigorously pursue violations of the ADA when employers base their decisions on baseless myths, fears and stereotypes about persons with epilepsy,” and that “Employers must be sensitive and reasonable about an employee’s complaints about a workplace hazard to their health, and health-related facilities should be especially cognizant of this.”

We have often cautioned employers about succumbing to “myths, fears and stereotypes” when it comes to people with disabilities.  See, for example, our post about an army veteran with a prosthetic hand.

Takeaway

When will employers listen to us?

 

Last week we reported about the EEOC entering into a consent decree settling a disability suit for $30,000.  The suit was against a Minneapolis-area home health care provider for failing to provide a reasonable accommodation to a housekeeping employee who suffered from fibromyalgia and osteoarthritis — and then firing her.

We stressed a few major points which employers should “take away” from this case:
Train your managers and employees in all aspects of the ADA;
Always engage in an interactive process re seeking a reasonable accommodation for employees with disabilities; and
Do not rely upon stereotypical assumptions about people with disabilities.
One of our readers, Suzanne Benoit, a management consultant in Portland Maine, sent in an interesting comment in which she provided some additional helpful “takeaways” and mantras, such as “focus on performance not assumptions.”
She wrote:
“Great information Richard, thanks for posting it. For me, the bottom line is to focus on what is happening inside the office and relate it all to performance, not assumptions. The article also points out that managers and supervisors have to be trained to refrain from assuming or discussing anything about employees who are performing their duties at an acceptable level.
There is another issue in these situations worth noting, though not at issue in this case. In addition to training management, as the article points out, I find that it also helps if all new employees are oriented initially NOT to share information about their illnesses freely with coworkers.
You can’t control this completely but you can let employees know that the company has an obligation to maintain employee privacy regarding all medical conditions no matter how small.

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When [employees] share information freely, the employer has less control over what opinions coworkers and supervisors form about the employee’s ability to carry out their duties.

Employees will make assumptions based on very little real data!”

stereotypical : A man rides an arrow to jump over the word Stereotype to illustrate the power of justice and fairness in overcoming stereotyping, discrimination and racism

 

On October 7th we asked the questions:  Must an employee who needs an accommodation (disability-related) actually request it?   Or must the employer be “clairvoyant” and infer such a request from the circumstances of the case?

We spotlighted a new decision from an Illinois federal court which held that the employer (the US Postal Service) had enough facts to infer an “implicit” request for an accommodation and a need to engage in the “interactive process.”

discussion : Consulting with expert. Two men talking while one of them writing something in clipboard

Our experts opined helpfully, as set forth below:

Marc Brenman, instructor at Morgan State University in Olympia, WA:

“I would exercise caution where there is no self-identification by an employee as a person with a disability or a request for a reasonable accommodation (though no “magic words” are necessary).

The ADA prohibits treating an employee like a person with a disability where there is no disability. The employer should not make assumptions or guesses. In the particular decision cited, the employer had various pieces of evidence that the employee might have a disability.

But without that strong evidence, I’d be reluctant to leap to the reasonable accommodation process. (Unless, as EEOC has noted in pregnancy reasonable accommodation cases, where the employer in effect reasonably accommodates everyone …).”

Christopher Fields, HR consultant in the Greater Memphis area:

“Usage of the work “Must” seems definitive.  The USPS should have made an attempt or an inquiry before terminating the employee. They seemed as if they weren’t concerned at all. So I think employers should make a reasonable accommodation to assist employees.”

Michele Sommer, HR expert, Trumbull, CT.:

Interesting article, Richard. I agree a bit with both Marc and Christopher. I don’t normally leap to making an accommodation, however as part of discussions with employees who are having performance or attendance issues I do talk about what needs to change.

If an employee brings up a medical issue or has a doctor’s note, I do mention that regardless of the reason why they are out, the fact that they are out frequently or without communication is a problem. I then tell them that if they think that their medical condition is the reason for the performance or attendance issues, then they may want to speak with their medical provider and if there was something that they or their medical provider felt that any of us could do to help them be more successful they should document that and get back to me.

That way I wasn’t making a specific offer, but was making it clear that I was open to discussing. And if they said that they didn’t want or need an accommodation, then I would document that as well.”

Marc Brenman added:

“It’s important to note that disabilities don’t have to be “medically related.”  Often there is no doctor involvement.

Second, most doctors aren’t very helpful about what accommodations a person with a disability might need, since they’re not work or job oriented. An exception is the chain of “light duty” cases, and situations where a doctor says an employee has to sit down for X minutes every hour.”

 

Discrimination based upon religion is in the news today after the EEOC just sued a Food Lion store in North Carolina for refusing to accommodate, and firing, an employee who is a Jehovah’s Witness.

religion : hands protecting the glowing flame of a candle in the darkness Stock Photo

When he was hired as a meat cutter, the employee told the store manager that his religious beliefs required him to attend church services Sundays and Thursday evenings.  The manager agreed to accommodate this request, but when he was transferred to another store, his new manager fired him noting that he didn’t know how the employee could not work on Sundays.

An EEOC attorney stated:  “Many decision makers seem to forget that unless providing a reasonable accommodation would impose an undue hardship on the company, the accommodation must be provided.  No person should ever be forced to choose between his religion and his job.”

On October 26, 2013, we recommended an article in the Wall Street Journal (page B1) about the increasing number of claims of religious discrimination:  “Part of the surge comes from employees – Muslims, Christians, Seventh-Day Adventists and others – who were denied requests to avoid work on Sabbath days. Conflicts also have erupted over workers’ appearance, particularly in jobs requiring uniforms, involving food preparation and in image-focused fashion retailing.”

We also reported last year that the EEOC announced that it had settled (for $70,000) a case of religious discrimination against an employee who was a Jehovah’s Witness because the employer failed to accommodate his request for a schedule change so he could attend an annual religious service.   Besides having his request denied, he was fired, and also placed on the company’s list of “do not rehire” employees.

An EEOC trial attorney said what we always advise employers:   “Businesses have a clear legal duty under federal law to handle requests for religious accommodations from their employees with due amounts of consideration.”

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We have blogged many times about religious accommodation issues, which though complicated, cannot simply be ignored or unilaterally denied without making some attempt to accommodate the employee.  Many such cases involve time off, as this latest one does, but many involve dress and grooming codes.

Two years ago, my partner Christina wrote about a workshop sponsored by the EEOC’s Training Institute and the agency’s Washington, D.C., field office, where a senior attorney noted that these types of cases are “low hanging fruit.”

“The reason is that these cases,” she wrote, “unlike a lot of employment cases, do not usually involve a lot of documents or witnesses.  Instead, it usually involves a low level manager who is strictly enforcing a dress code that is usually contained in one or two paragraphs of a handbook.  As the senior EEOC attorney stated, managers need to be trained that certain religious beliefs may mean that employees cannot comply with a dress code.   Managers also need to be trained that a dress code is not carved in stone and some flexibility may need to be applied.”

 

 

Here we go again – another couple of heath care facilities sued by the EEOC under the ADA.   Do you think it is merely a coincidence that such a large number of the EEOC’s ADA cases are against such companies?  If so, read our many posts on the subject.

What is it about health and medical care facilities and personnel that brings down the heavy hand of the EEOC so often alleging ADA and pregnancy discrimination?  Is it that they have an innate bias against the disabled and pregnant women, and discriminate more than other employers?

We asked, again, as recently as April:  “Do Health Care People Violate the ADA and Pregnancy Act More Often Than Others?”

“Could it be?” we asked, “could it be that the EEOC sees such health care folks as a target as big as a house?  You know, can the helping profession, there to treat the sick, disabled and pregnant, stand up to the negative PR that a discrimination suit typically brings if it is alleged that they discriminated against the very folks that they are there to minister to?”

If faithful readers are not bored stiff with our repeated words of caution to health care providers, read on!

The First New Case

In the first case the defendant is a company which operates a North Carolina nursing home which allegedly hired a woman as a cook and dietary aide ”who has a physical impairment that limits her use of the left side of her body.”

As the EEOC alleges, she was quickly asked about her left arm by her supervisor and told the supervisor that “that she did not have the full use of her left arm, but that she was still able to perform her job duties.”   Not long after she was told that the supervisor did not believe that she could perform her job duties without the full use of both arms, and she was fired

An EEOC attorney said that “An employer cannot terminate an employee based solely on uninformed assumptions about her ability to work simply because of a disability.”

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Second Lawsuit 

In the second EEOC lawsuit, a leading dialysis clinic in Sacramento run by a Nashville-based non-profit fired a nurse who had worked there for 14 years after she was diagnosed with breast cancer.

The company allegedly “had a policy of firing employees who are unable to return to work 30 days after they have exhausted their 12 week leave under the Family and Medical Leave Act,” and made no exception for plaintiff, who had taken medical leave in order to have mastectomy surgery and chemotherapy treatments.

Moreover, the company allegedly did not “explore any accommodations for [her] regarding a possible extension of her leave but instead told her that she would have to reapply for her job.”

Although she did reapply, she was never rehired.

An EEOC attorney was quoted as saying that “Given the ADA’s mandate, I would urge employers to be flexible concerning leave extensions if it causes no undue hardship.  [Plaintiff] had over 30 years’ experience in dialysis treatment and really wanted to work. Our investigation showed that she only needed two more months to return to work. Why sacrifice a valuable employee with a good record over an arbitrary time limit?”

 

Takeaway:  Better wake up medical and healthcare folks — the EEOC is licking its chops!

 

Is “grabbing” a $1.37 bag of potato chips from the employer’s shelf in the midst of a hypoglycemic attack grounds for termimation?  Does it violate the ADA?

An interesting lawsuit from California in this matter that was filed by the EEOC in 2011 has just been settled, according to the EEOC.  As the Court summarized the facts in denying summary judgment to the employer as follows:

“In the midst of a hypoglycemic attack, [the] employee [who suffered from Type II diabetes] grabbed a $1.37 bag of potato chips from the store shelf to stabilize her condition. [She] was fired her for violating [the employer’s] anti-grazing policy.” 8809481_s

The Court’s framing of the issues: “Are [there] material questions of fact for the jury on whether [the employer] is entitled to enforce its uniformly-applied policy against an employee whose alleged misconduct was caused by her disability.”   Put another way, “ whether it was a business necessity to treat [plaintiff] the same as other employees who had been fired under the anti-grazing policy when [she] claims taking the chips was necessitated by her medical condition.”

The background:  The employer knew that plaintiff suffered from diabetes, and as the Court noted “allowed [her] to possess candy in case of low blood sugar, keep her insulin in the break room refrigerator, and take additional breaks to test her blood sugar or eat because of her diabetes.  In that 13 year time period, there was only one time when [she] asked to take an additional break to eat food because of low blood sugar.  In that same time period, [she] never asked [the employer] to be permitted to consumer merchandise without paying for it first.”

The event at issue, according to the Court:  While working returning items to the store shelves, the employee “noticed she was shaking and sweating from low blood sugar.  She did not have any candy with her and was in the magazine isle, so she opened a $1.39 bag of potato chips that was in the cart and ate some of them.  She did not notify or request assistance from a manager before she opened and ate the chips.   After 10 minutes, when she started feeling better, [she] claims she went to pay for the chips at the cosmetic counter (where she had been instructed to pay for store items) but no one was there.   [She] put the potato chips under the counter at her cash register and returned to restocking items.”

The company’s policy:  The company suffers enormous yearly losses from employee theft, and so has a longstanding and consistently applied policy referred to as “anti-grazing.”  That is, an employee cannot eat any food from the shelves – no matter the value — without first paying for it, or suffer termination – no ifs ands or buts.

The holding:   “Under the Ninth Circuit case law, misconduct resulting from a disability has to be considered as part of [plaintiff’s] disability and creates a question of fact as to whether [her] disability was causally related to her termination.  In other words, whether or not [her] disability was, in fact, a cause of her misconduct is a question of fact for the jury.   Similarly, whether [the employer] should have been required to “accommodate” her stealing as a “reasonable” accommodation is for the jury to determine.”

The settlement:  The employer must pay plaintiff $180,000 and implement substantial changes to its antidiscrimination policy and training procedures.

The takeaway:   Disability law is complex and a potential minefield for employers.  Legal counsel is a must.   The results would likely have been different in different judicial circuits.

 

 

The EEOC must be licking its chops, we posted on June 6th, since it achieved a PR coup – a new lawsuit against a Detroit nonprofit which helps people with disabilities (and appropriately named “Disability Network”) for allegedly violating the ADA by discriminating against a deaf employee.

This was “easy pickins” alright.  As the EEOC said “The irony in this case is incredible.  Disability Network was formed to help and protect people with disabilities – and so was the ADA, under which we now have to sue them for violating their mandate and betraying an employee.”

Here are some trenchant reader comments.

Richard N. Grey, an attorney in the LA area:

“Sounds like a classic case of “Do as I say, and not as I do,” with the EEOC just lying out there in wait.”14677590_s

Michael Farrell, a management consultant in the LA area:

“I’ve heard this refrain so many times in so many fields of business.  “How can we be discriminating against Vets, we’re a defense contractor and we’re all Veterans here!”   Or, “how can she be discriminating against women, she’s a woman!” and so on…

We need to encourage leaders to think outside the box of their own self-perception, not to try and see situations from the point of view of the employee, but from the point of view of regulators or the old archetypal “reasonable man or woman” as to the impacts of their actions. And, we need to get people in general to think about the results of their actions as opposed to their own intentions.”

Kyle Hulce, HR expert, Newman Lakes, WA:

“The issue I am seeing with this article though is the lack of the reasoning on the side of the organization for the termination;  naturally, that is not something they can state on record with any media platform.   It may even be very plausible that they are firing the person for not wanting to offer reasonable accommodation.

However, if an employer potentially has a reasonable justification for terminating an employee that is unrelated to the allegations being brought against them why is that justification treated as illegitimate instead of a valid reason? There should be a larger amount of responsibility placed on individuals for providing proof of these allegations rather than assuming one person has more integrity than an organization with an otherwise untainted record.

On a cursory inspection of the available sources on the internet, derogatory information for the organization did not exist before now.”

Karen Reedy, HR coordinator, Detroit area:

“That was my first thought too.  After attending a Disability Network summit in my own Michigan county, it was loudly and specifically said that the ADA does not prevent you from firing an employee with a disability.

What was the performance record of the individual in question and is this just a sensationalist attempt at grabbing headlines in the name of irony and press?  Disappointed at the lack of “meat” in this story.”