accommodation – Workforce

October 15, 2020

What we’ve got here is a failure to communicate

An employee suffers an injury that prevents her from operating a motor vehicle. With no means of transportation to travel to and from her workplace, the employee calls off work, believing that her absences were excused. They weren’t, and the employer fires her for excessive absences.

She sues, claiming disability discrimination, in part because of the company’s failure to accommodate her inability to drive.

n Hazelett v. Wal-Mart Stores, the 9th Circuit Court of Appeals concluded that the employee’s ADA claim should have survived summary judgment.

[I]t appears that Wal-Mart failed to participate in the interactive process required under the ADA.… Wal-Mart failed to provide Hazelett two requested accommodations: that she be given leave until July 17, 2015, in her FMLA Medical Certification when she would be released to drive, and two, an assignment to an alternative job to which she could commute.

What we’ve got here is a failure to communicate. Once an employer becomes aware of the need for a reasonable accommodation, the ADA obligates it to engage in an interactive process with the employee to identify and implement appropriate reasonable accommodations. That process requires communication and good-faith exploration of possible accommodations. An employer cannot dismiss, without discussion, accommodations. An employer cannot even rely on state workers’ comp laws or standards. The interactive process is mandatory, period.

Communication between an employer and a disabled employee is the key to avoiding problems under the ADA. Do not commit the cardinal ADA sin of failing to communicate. Talk with your employees. You’d be surprised how many problems you can head off with a simple conversation.

July 2, 2020May 16, 2022

Employee claims his remote work request got him fired

An employee suffers from high blood pressure and lives with his 81-year-old mother. He’s an engineer and began working from home for his employer in mid-March when his state shut down non-essential businesses. His employer, however, remained open, and several weeks later required him to return to in-person work in the office. He refused, requesting continued work from home. The company refused that request and fired him for job abandonment. The employee sued for disability discrimination.

The employer argues that the employee’s high blood pressure is not a disability warranting accommodation, and it has no obligation to accommodate the employee because he lives with his elderly mother.

Also read: Permanent working from home works well if you have the right technology

As to the latter argument, the employer is likely correct—it doesn’t have to accommodate an employee because of the employee’s association with someone with a disability, even if that family member falls into one of the COVID-19 high-risk groups.

I also think, however, that this employer may have issues with the denial of the employee’s work-from-home request for his own alleged disability. It’s possible that this employee was entitled to work from home as a reasonable accommodation. We don’t know, however, because the employer never asked for any medical information from the employee as to the need for the request.

According to Tchankpa v. Ascena Retail Group, “Employers are entitled to medical documentation confirming the employee’s disability and need for accommodation.” If on-site attendance is presumed to be an job essential function (as noted by the Tchankpa court) then an employer would have to consider offering an accommodation to meet that essential function. Telework might be one such accommodation. But the employer won’t know that unless it engages in the interactive process with the employee.

And that’s where this employer failed. The employee asked for an accommodation and the employer refused it without consideration and without gathering the necessary information from the employee.

Also read: Keys to effectively managing a remote workforce

So, yes, you might be able to deny an employee’s work from home request. To be clear, in most cases I don’t think you should. But it is possible. You just have to do it the right way, which will always include the interactive process to determine if the employee is disabled and if the request is medically indicated to permit the employee to perform the essential functions of the job. For high-risk employees with a doctor’s note, however, denying the request takes a huge legal risk.

December 5, 2019June 29, 2023

Does It Violate the ADA to Work an Employee in Excess of a Work Restriction?

Rita Morrissey is a licensed practical nurse who worked for 15 years for The Laurels of Coldwater, a skilled nursing and rehabilitation center.

In 2012, she injured her back outside of work and submitted a note to her employer from her primary care physician limiting her to no more than 12 hours of work per shift. Coldwater refused the accommodation, telling Morrissey that it would not accommodate any medical condition that did not stem from a work-related injury.

Over the next three-plus years, Morrissey worked more than 12 hours eight different times, but it does not appear she was mandated to do so. Indeed, on each occasion, she worked no more than 15 extra minutes.

Morrissey’s situation escalated in January 2016, when Coldwater mandated her to work a 13.5-hour shift. Morrissey testified that she reminded her manager about her 12-hour work restriction, but the manager responded that she had “no control” over the situation. Five days later, Coldwater management again told Morrissey she had to work more than 12 hours, this time a 16-hour shift to cover for another nurse who had called off from work. Morrissey walked off the job and never returned.

In Morrissey v. Laurel Health Care Co. (6th Cir. 12/3/19) [pdf], the 6th Circuit concluded that Morrissey had presented more than sufficient evidence to overcome her ex-employer’s motion for summary judgment on her failure to accommodate claim.

Viewing the evidence in the light most favorable to Morrissey, it shows that: (1) Coldwater had a blanket policy of denying accommodations for all non-work related disabilities, (2) Coldwater knew that Morrissey was under a twelve-hour work restriction, (3) Morrissey requested an accommodation, (4) Coldwater forced her to work beyond that restriction on January 31, 2016, and (5) Coldwater attempted to do so again five days later. On these facts, Morrissey’s overages from 2012-2015 are inconsequential. But, Coldwater’s argument improperly ignores the fact that it forced Morrissey, a disabled employee, to stay and work in excess of her physician instituted medical restriction—and attempted to do so again five days later. The record shows that Morrissey asked Coldwater for an accommodation due to her disability, and Coldwater did not accommodate her. She was not required to establish anything more for her claim to ripen.

What can we learn from this decision?

1. An employer’s obligation to provide reasonable accommodation under the ADA is not limited to work-related injuries. The ADA’s definition of disability extends to work and non-work injuries and illnesses. An employer who refuses to accommodate an employee’s non-work injury because it’s not work-related is asking for a lawsuit.
2. Blanket policies are risky under the ADA. The ADA calls for flexibility and reasonableness. Applying a blanket, across-the-board policy does not per se violate the ADA, but it should be done with caution and counsel.
3. An employer violates the ADA when it requires a disabled employee to work outside the bounds of their work restrictions.

October 29, 2019October 28, 2019

Best Practices for ADA Compliance

This summer marked the 29^th anniversary of the original Americans with Disabilities Act.

I have Type 1 Diabetes, which makes me a beneficiary of the ADA (as amended). The ADA protects my right to wear my insulin pump on a plane, eat a snack when my glucose is low and bring needles when I go to court. As an individual, I rely on ADA protections on a daily basis.

As an attorney, I regularly counsel employers who feel overwhelmed by administering such a technical law.

Put succinctly, Title I of the ADA requires employers to make certain reasonable accommodations for otherwise qualified individuals with disabilities. This is easier in theory than practice. Even a letter-perfect ADA policy might be insufficient if management is not properly trained or if employees are not given guidelines for how to raise the need for a potential accommodation. There are, however, some steps employers can take to protect themselves and their employees.

The ADA requires employers to engage in an “interactive process” with an employee who signals a potential need for an accommodation.

If a company doesn’t know about the problem, it’s difficult to address the issue or provide the accommodation. Clear policies outlining how employees should request an accommodation are essential. This typically includes specific direction on whom to contact and how. Employees at all levels should be educated on how to address a possible accommodation need.

By contrast, policies that are silent on this point or that direct employees to an “immediate supervisor” or “management” could foster dead-end conversations with someone who inadvertently misinforms an employee or ventures to make his or her own determination of whether the individual has a legally protected disability, creating significant liability for the company.

The corollary is training management at all levels on how to respond to an employee’s remark that “the fluorescent lights give them migraines” or that they “can’t stand at the register for the whole shift.” If the employee’s communication could indicate a need for a medical accommodation, liability could arise for the company even if the individual to whom it is disclosed is not serving in an official HR role.

Also read: A Textbook Lesson on the ADA’s Interactive Process

Consider the company that recently landed in hot water when a well-intentioned but misinformed supervisor unequivocally informed an employee that she could not miss work or take a leave of absence to treat her anxiety. The employee subsequently resigned. By failing to direct the issue through the proper channels, the supervisor misinformed the employee, failed to fulfill the company’s legal obligations, caused the employee to resign and led to costly litigation that could have been avoided with an ADA-compliant response.

Well-intentioned employers may also miss the mark determining whether the individual has a “disability.”

While it may seem straightforward, ADA protections extend to conditions that may not be visible, and the determination is highly fact-specific. For example, migraines, irritable bowel syndrome and mental health issues may be considered disabilities in the right circumstances.

While employers may request certain medical information under appropriate circumstances, it should be handled with care to avoid legal violations for mishandling medical information. This, again, makes it essential to direct employees to the appropriate recipient for such a disclosure.

Even if an individual has a legally protected disability, the ADA does not require that an employer automatically provide the requested accommodation. It does, however, require an accommodation that is reasonable, i.e., one that does not pose an undue hardship for the employer.

Reasonableness is a fact-specific determination that should be made through an interactive process between the employer and the individual. Depending on the circumstances, it could include anything from a modified work schedule to providing accessible workplace equipment, or even a leave of absence from work. The fact that it would cost the company money, or that co-workers will be jealous, or that you’ve always scheduled shifts for specific eight-hour windows, does not automatically mean that the accommodation is unreasonable.

Returning to the example above about the employee with anxiety, the company was not under an obligation to give the employee precisely what she requested. What was not permissible, however, was her supervisor’s immediate rejection of the accommodation that she requested without further dialogue about what she needed to do her job.

Also read: An Expensive Lesson on Disability Harassment

To avoid liability, employers should position employees to navigate complicated medical issues when they arise. At a minimum, everyone should be trained to direct inquiries to the same, central location, such as HR or a member of upper management. Finally, legal advice should be sought when the answer is in doubt; it is cheaper to resolve an issue on the front end than to clean up in litigation.

November 3, 2016June 29, 2023

Employers, Do Not Ignore Obvious Disability Accommodations

All the way back in 2014,

An employee must ask for ADA accommodation to receive it.

That is, an employee must ask for an accommodation unless the employee’s need for an accommodation is so obvious that the employer cannot reasonably turn a blind eye toward it.

Case in point? Kowitz v. Trinity Health (8th Cir. 10/17/16).

Roberta Kowtiz worked for Trinity Health as a respiratory therapist and lead technician in its blood gas laboratory. She also suffered from cervical spinal stenosis, a degenerative spinal disease, for which she took a 12-week FMLA leave. She returned to work with restrictions that included max eight-hour shifts and no lifting more than 10 pounds. In the interim, Trinity updated the training requirements for Kowitz’s department to include renewed CPR training. Kowitz’s work limitations, however, prevented her from completing the training, a failure which resulted in her termination.

In her ensuing ADA lawsuit, the appellate court concluded that Kowitz’s failure to request a reasonable accommodation relative to the CPR training was not fatal to her ADA claim.

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.

What is the key takeaway for employers? You cannot ignore what you know about an employee’s disability and the potential need for an accommodation. Instead of ignoring the employee, you must engage in the interactive process with that employee to determine the need for, and feasibility of, the accommodation, whether or not the employee actually requests it.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.