reasonable accommodation

Subscribe to reasonable accommodation

Earlier this year, New Jersey enacted a law to protect breastfeeding employees and require employers to provide certain accommodations to breastfeeding employees.

Notably, this law required reasonable accommodations as a general matter but also noted that reasonable accommodation “shall include reasonable break time each day to the employee and a suitable room or other location with privacy, other than a toilet stall, in close proximity to the work area for the employee to express breast milk.”  Employers are therefore required to provide reasonable accommodation generally, which must include but is not necessarily limited to this particular accommodation, unless they can demonstrate undue hardship.

On October 29, 2018, a group of New Jersey state legislators introduced a bill (A-4686) to expand the scope of required accommodations to breastfeeding employees.  The bill makes four changes to current law.

First, current law applies the accommodation obligation to an “employee breast feeding her infant child.”  A-4686 removes the word infant, clarifying that this obligation applies to breastfeeding beyond infancy.

Second, the bill notes that the reasonable break time accommodation should be “for such time as the employee desires.”

Third, the bill adds a second specific required accommodation to employers, which would be required to provide “a modified work schedule” to the employee.

Fourth, the bill clarifies that a restroom (as opposed to merely a toilet stall) is not an acceptable location for an employer to provide to an employee for the purpose of expressing breast milk.

While the proposed language changes are short, this bill represents a significant expansion of employers’ accommodation obligations.  We’ll keep an eye on this piece of legislation as it moves through the legislative session and update on any new developments.

In the meantime, New Jersey employers should review policies and practices to make sure they incorporate the requirements of the law enacted earlier this year.

Volvo Group North America, LLC will pay $70,000 and institute a three-year consent decree to resolve a federal disability discrimination suit brought by the U.S. Equal Opportunity Employment Commission (EEOC).

According to the suit, Volvo made a conditional job offer to a qualified applicant for a laborer position at its Hagerstown, Maryland facility.  The applicant, a recovering drug addict enrolled in a supervised medication-assisted treatment program, disclosed during his post-offer physical that he was taking medically prescribed suboxone.  When he arrived for his first day of work, a human resources representative told the applicant that Volvo could not hire him because of his suboxone use, the EEOC said.

The EEOC filed suit (EEOC v. Volvo Group North America, LLC, Civil Action No. 1:17-cv-02889) alleging that Volvo violated Americans with Disabilities Act by failing to conduct an individualized assessment to determine what effect, if any, the suboxone had on the applicant’s ability to perform the job.

In addition to the $70,000 in monetary relief to the applicant, the consent decree prohibits Volvo from violating the ADA in the future. Additionally, Volvo will distribute to all employees at its Hagerstown facility an ADA policy explaining the right to a reasonable accommodation and will amend its policy on post-offer medical and drug evaluations to explain how it will assess whether an employee’s or applicant’s lawful use of prescription medication poses a threat under the ADA.  Volvo will also provide ADA training, report to the EEOC about its handling of future complaints of disability discrimination, and post a notice regarding the settlement.

 

This case is a good reminder to employers that the ADA protects recovering addicts who are not currently using illegal drugs and prohibits discrimination on the basis of past drug addiction. Of course, employers are allowed to hold such individuals to the performance standards applicable to their jobs, may prohibit the use of illegal drugs in the workplace, and may require that employees not be under the influence of illegal drugs in the workplace.  However, recovering addicts prescribed medication as part of a treatment program are likely entitled to full ADA protection, including the right to a reasonable accommodation that does not cause undue hardship to the employer.  This means that employers cannot simply dismiss individuals in such a treatment program as unfit for employment.  Instead, employers should routinely review their policies regarding the use of prescribed medications to ensure compliance with the ADA.

 

Several recent New York City human rights law amendments in the past year have steadily increased worker protections applicable to New York City employers. As is no surprise, the mayor’s office recently adopted yet another new amendment passed by the New York City Council amending the New York City Human Rights Law (NYCHRL) effective October 15, 2018.

What is particularly noteworthy here are the administrative obligations placed on New York City employers under this new law. Once effective, New York City employers are required to engage in a “cooperative dialogue” when an employee requests a reasonable accommodation (whether for disability-related, religious, or other covered reasons) and to document that process. Employers with operations in New York City should be aware of these new changes and grow accustomed to their administrative burdens prior to the enactment’s effective date.

Under the NYCHRL, as most New York City employers are already aware, reasonable accommodations (such as workplace rule changes and unpaid leave) must generally be provided to employees for any covered reasons. The recent amendment expands upon this existing requirement, and requires employers to engage in a “cooperative dialogue” with an employee who requests a reasonable accommodation: (1) for religious needs; (2) due to a disability; (3) as a result of pregnancy, childbirth or a related medical condition; or (4) as a result of domestic violence, sex offenses or stalking. This is similar to already existing “interactive process” requirements commonly applied to disability accommodations.

However, the new amendment now explicitly requires such dialogues by law for all covered reasons found within the NYCHRL. Employers are specifically required to engage in a good faith written or oral conversation with the employee regarding the employee’s accommodation needs, potential accommodations (including alternatives to the accommodation proposed by the employee), and any difficulties that the proposed accommodations could pose for the employer. At the conclusion of this cooperative dialogue, the employer must provide the employee with a written final determination identifying any accommodation that was granted or denied.

That last part, involving required written determinations, is likely to be the most difficult issue for employers (from an administrative standpoint). While documenting accommodation requests is already a best practice, this amendment makes such documentation mandatory. Now, failure to provide a written determination will potentially constitute grounds for an unlawful discrimination finding. Moreover, it is unclear if this written determination requirement would apply to all accommodations, including the littlest and most mundane of accommodations granted in the workplace. For example, would a written determination be required for a request to attend a doctor’s appointment, to leave early for a migraine, or to take a religious holiday? Most likely the answer is “yes” as of now, and any failure to provide a determination could result in liability under the law.

If prior to the effective date additional guidance is issued by the New York City Commission on Human Rights that helps clarify or to mitigate the law, we will prepare a follow-up to this piece. Otherwise, employers should update their employee handbooks and leave policies accordingly, and begin training managers and human resources professionals to comply with these newest legal requirements in New York City.

On April 19, 2017, West Virginia Governor Jim Justice signed a bill legalizing the use of marijuana for medicinal purposes.  With the passage of Senate Bill 386, West Virginia becomes the 29th state to adopt a medical marijuana law.

Trainee lights a joint at work

Employers need not panic.  This does not mean you have to ignore your employee toking in the bathroom or ignore a positive drug test simply because the employee has a medical marijuana card.

The law does contain a broad anti-discrimination provision prohibiting an employer from taking an adverse action against an employee solely because that person possesses a medical marijuana card.  However, the law specifically says that no employer must make an accommodation for the use of medical marijuana in the workplace and employees can be disciplined for being under the influence of marijuana at work.

The law also makes it illegal for any patient to operate or be in physical control of any of the following:

  • chemicals which require a permit from a state or the federal government;
  • high-voltage electricity or any other public utility; or
  • vehicle, aircraft, train, boat or heavy machinery

The law also states that a patient may not perform employment duties at heights or in confined spaces, including mining, while under the influence of marijuana.  In furtherance of addressing safety concerns, the law specifically states that employers may prohibit an employee from performing any task while under the influence of marijuana which the employer deems life-threatening to either the employee or other employees.  Employers may also prohibit employees from performing any duty that could result in a public health or safety risk while under the influence of medical marijuana.

Employers in West Virginia should update drug policies to address the new law.  No person will be issued a card until July 2019 so you have some time, but like with all things, while it is fresh in your minds it is a good idea to have counsel review and revise your policies.

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.

Pillars
Copyright: bbourdages / 123RF Stock Photo

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
Copyright: iqoncept / 123RF Stock Photo

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.

hospital : 3d people - human character and word help 3d render illustration

“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.

talkative : High angle full length portrait of a loquacious long-winded businessman looking up at the camera talking with his mouth open emphasising the point with his finger Stock Photo

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.”