Tag: ADA

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An Employee’s Disability Is Not a ‘Get Out of Jail Free’ Card for Workplace Misconduct

Jon Hyman The Practical Employer

Does a medical leave of absence grant an employee a free pass for pre-leave misconduct discovered during the LOA?

This question is squarely at the center of the court’s decision in Williams v. Graphic Packaging International (6th Cir. 10/31/19) [pdf]

James “Randy” Williams worked as a department manager for Graphic Packaging. In late 2014 or early 2015, Williams told his supervisor, plant manager Eddie Lee, that he had been re-diagnosed with prostate cancer. In September 2015, Williams requested time off for treatment, which the company granted from Sept. 14 through Nov. 23, 2015. During that leave, however, several of Williams’ subordinates lodged complaints against him of inappropriate treatment. The company investigated, and concluded that “Williams had been using manipulative and coercive tactics to control his employees and prevent them from communicating with upper management.” As as a result, shortly after Williams returned to work, the company fired him.

Williams sued, claiming (among other things) that firing on the heels of a return to work after cancer treatment is tantamount to disability discrimination.
The 6th Circuit court of appeals disagreed.

The evidence demonstrates that Graphic Packaging terminated Williams’s employment after receiving complaints from an employee, which were later corroborated by interviews with fellow employees, an internal investigation, and depositions from Graphic Packaging upper management, Human Resources employees, and employees who reported to Williams. The record reflects that Williams violated Graphic Packaging’s Core Values by mistreating employees both publicly and privately, limiting access to upper management, and propagating troubling and salacious rumors concerning upper management. Williams has even admitted that he committed at least some of the acts which so clearly violated Graphic Packaging’s Core Values.

No employee gets a free pass on workplace misconduct just because he or she suffers the misfortune of having cancer (or any other disability). The company concluded that the allegations against Williams (which its internal investigation corroborated, and many of which Williams himself admitted) merited termination. Those allegations included Williams telling his subordinates that he “owned” them; spreading an unsubstantiated rumor that Lee had molested his own daughter; cheating on a mandatory safety exam; and forbidding his subordinates from speaking to plant management.

Cancer and other ADA-protected disabilities are not “get out of jail free” cards for workplace misconduct. Do your due diligence, and treat the employee the same as you would have treated him or her if the disability didn’t exist. If the misconduct warrants termination, so be it. Terminate, and defend your legitimate, non-discriminatory decision. Otherwise, you risk setting a precedent that the misconduct is OK, which will make it that much more difficult to hold others accountable for that same misconduct in the future.

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Best Practices for ADA Compliance

employee compensation

This summer marked the 29th 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.

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Are Hangovers the Next Frontier of Your FMLA Headaches?

Jon Hyman The Practical Employer

A German court recently ruled that a hangover qualifies as an “illness.”

Which got me thinking … are hangovers the next frontier of your FMLA headaches?

Thankfully, the answer to this question is almost certainly “no.”

But it’s worth reviewing the FMLA’s definition of “serious health condition” to see how I reach that conclusion.

The FMLA defines a “serious health condition entitling an employee to FMLA leave” as “an illness, injury, impairment or physical or mental condition that involves inpatient care …or continuing treatment by a health care provider.”

  • “Inpatient care” means “an overnight stay in a hospital, hospice, or residential medical care facility, including any period of incapacity … or any subsequent treatment in connection with such inpatient care.”
  • “Incapacity” means an “inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefore, or recovery therefrom”
  • “Continuing treatment by a health care provider” means “a period of incapacity of more than three consecutive, full calendar days, and any subsequent treatment or period of incapacity relating to the same condition, that also involves” either “treatment two or more times, within 30 days of the first day of incapacity by a health care provider,” or “treatment by a health care provider on at least one occasion, which results in a regimen of continuing treatment under the supervision of the health care provider.”

It’s difficult to imagine a hangover meeting any of these criteria. No hangover should ever require an overnight stay, continuing treatment of three or more days, or a regimen of supervised continuing treatment, even if an employee feels so ill that he or she cannot work or perform other regular daily activities as a result.

HR folks and leave administrators, rest easy knowing that you will not have to grant FMLA to your hungover employees.

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No-fault Attendance Policies Offer No Cover When the ADA or FMLA Are Involved

Jon Hyman The Practical Employer

An employee suffering from epilepsy, migraines and heart condition asks (with a medical note) for two unpaid days off from work to treat symptoms related to her disabilities.

Instead of granting the leave, the employer assigns the employee points under its no-fault attendance policy and fires her for exceeding the allowable number of attendance points. The EEOC has sued the employer, alleging disability discrimination.

A no-fault attendance policy assigns points each time an employee is absent, with corresponding levels of progressive discipline automatically imposed at certain point levels. Employers like these policies because they simplify attendance issues.

These policies, however, carry, a certain degree of risk — namely in the handling of absences protected by the FMLA or ADA. If the FMLA or ADA protects an employee’s absence from work, an employer would violate the statute by counting the absence as part of a no-fault attendance policy. And, in this case (assuming the medical note is legit), and for this reason, it appears this employer has a big problem with the EEOC.

On a more basic level, where’s the humanity in denying two days off for an employee to deal with medical symptoms, especially when the request is accompanied by a doctor’s note?

The ADA requires reasonable accommodations. Unless the employee is a serial abuser of unpaid days off, it’s hard to imagine a situation in which two days is not a reasonable request.

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When Alcohol Is Involved, the ADA Distinguishes Between ‘Having a Disability’ and ‘Disability-related Misconduct’

Jon Hyman The Practical Employer

Alcoholism is an ADA-protected disability.

Yet the ADA does not require that employers accommodate alcoholics by permitting them to drink, or otherwise be intoxicated, on the job.

Case in point? Dennis v. Fitzsimmons (D. Col. 9/5/19).

Jared Dennis was employed as a deputy in the Summit County, Colorado, Sheriff’s Office. He’s also an alcoholic. While on administrative suspension following his wife’s allegation of domestic violence, Dennis got drunk at home the night before his criminal arraignment. The following morning, he failed his intake breathalyzer. Thereafter, the Sheriff’s Office terminated him for, among other rules violations, conduct unbecoming of an officer and being impaired while on duty.

Dennis sued his former employer for disability discrimination, claiming that it fired him because of a protected disability — his alcoholism.
The court disagreed, and dismissed Dennis’s lawsuit.

It is generally recognized that alcoholism can constitute a disability entitling the employee to protection under the ADA…. The more difficult question is whether Deputy Dennis has come forward with evidence that his termination resulted from his disability, rather than his conduct.…[W]hen the disability at issue is alcoholism, the ADA … draw[s] a distinction between “having a disability” and “disability-caused misconduct.”

It is undisputed that the SCSO based its decision to terminate Deputy Dennis’ on the fact that he reported for his arraignment in an intoxicated state. Thus, there is no dispute that SCSO’s decision arose from his unsatisfactory conduct on the morning of July 28, not from his abstract status as an alcoholic. As noted, the ADA … do[es] not extend protection to actions of alcohol-influenced misconduct, even if the employee’s alcohol use is related to the disability of alcoholism. Accordingly, Deputy Dennis has not come forward with evidence that indicates that his termination was based on his status as a disabled person (as opposed to his conduct).

Addiction is a protected disability. But it does not mean you have to permit its use to accommodate the disability. Under the influence at work does not equal a disability, ever.
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EEOC Settlement Teaches Lesson on Extended Leaves of Absence as ADA Accommodation

Jon Hyman The Practical Employer

An employee tells you that he was recently diagnosed with prostate cancer and needs a few weeks off for treatment, surgery and recovery.

Assume either you’re not an FMLA-covered employer or that the employee is not FMLA eligible.

Do you …

(a) Fire him.

(b) Deny the request and force him to quit to have the surgery.
(c) Grant the request, but ask the employee to provide medical information supporting the disability, the need for time off, and an expected return-to-work date.

I hope you picked “c.”

An Atlanta distributor of industrial supplies chose “a,” and it cost them $75,000 to settle an EEOC lawsuit. From the EEOC’s news release:

“Medical leave is a widely recognized accommodation, and in Mr. Smith’s case, could easily have been granted, preventing the firing of a valuable employee. However, instead of accommodating him, Vallen fired him less than 24 hours before his surgery,” said Antonette Sewell, regional attorney for the EEOC’s Atlanta District Office. …

Darrell Graham, district director of the Atlanta office, said, … “An employee should not be forced to risk termination for seeking leave to treat a medical condition, which can be a perfectly reasonable accommodation under federal law.”

Takeaways?

1. Unpaid time off can, and often does, qualify as a reasonable accommodation under the ADA, whether or not the FMLA applies. Moreover, if you fail to consider it as a reasonable accommodation, you’ve likely violated the statute.

2. Firing someone who asks for a few weeks off for cancer surgery is awful. It’s even more awful if you wait until the day before the surgery to do the firing.

3. Given the egregiousness of the violation, $75,000 seems light (although I don’t know all of the particulars of this employee’s damages).

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This Disability Discrimination Lawsuit Was No Party

Jon Hyman The Practical Employer

Party City has agreed with the EEOC to pay $155,000 to settle an ADA lawsuit the agency filed on behalf of a rejected job applicant on the autism spectrum and suffering from severe anxiety.

According to the lawsuit, the individual had been receiving services from Easter Seals of New Hampshire to build up her self-confidence, including working and applying for a job. These services included a job coach.

When the Party City interviewer learned that the woman accompanying her to her interview was a job coach, the EEOC alleged that his entire attitude changed.

The hiring manager told the job coach that Party City had hired people with disabilities with job coaches in the past and that it had not gone well, and made disparaging comments about those emp­loyees. Although both the applicant and the job coach explained to the hiring manager that the applicant had been successful shadowing others in previous retail jobs, the hiring manager was uninterested in either the applicant’s abilities or in the limited role the job coach would play. … The hiring manager tried to cut the interview short by telling the job coach in a patronizing tone, “Thank you for bringing her here,” while the applicant was still in the room. The hiring manager also stated, in the applicant’s presence, that the Party City employee who had encouraged the applicant to apply would hire anyone, and would “even hire an ant.”

Per EEOC regional attorney Jeffrey Burstein, “Federal law requires employers to consider disabled job applicants based on their abilities, not on demeaning stereotypes.” Adds Kevin Berry, director of the EEOC’s New York District Office, said, “Allowing this applicant to work with a job coach in her early weeks of employment would not have caused an undue burden on Party City. The ADA requires employers to make this type of reasonable accommodation so as to enable qualified people with disabilities to join the workforce, which is a win-win for everyone.”

Four takeaways from this lawsuit and settlement:

    1. An employer’s obligation to consider and offer reasonable accommodations does not just extend to employees, but also to applicants. Employers cannot shirk their ADA responsibilities just because the person needed the accommodation is just an applicant.
    2. Past bad experiences with other employees or applicants are not a valid reason to deny a reasonable to a current employee or applicant. Reasonable accommodations are individualized, and must be considered on an individual-by-individual basis. Telling someone that you can’t offer an accommodation because of past bad experiences with others is a recipe for an expensive (and difficult to defend) lawsuit.
    3. A job coach is potential reasonable accommodation you must consider when presented by a disabled employee or applicant. You have to then engage the individual in the interactive process and determine how to offer that accommodation, if possible.
    4. Party City did the right thing by recognizing that it mishandled this applicant and settling this lawsuit through early mediation. It could have avoided the whole problem, however, by ensuring that those involved in hiring for its stores understand their reasonable accommodation obligations to disabled applicants. Indeed, I’d go so far as to say that no one should be doing any interviewing or hiring without ADA and reasonable accommodation training. This risk is just too great.
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ADA Does Not Require a New Supervisor as a Reasonable Accommodation

Jon Hyman The Practical Employer

Cindy Tinsley was so stressed.

How stressed was she?

Tinsley was so stressed that even something as simple as her co-workers at Caterpillar Financial Services bouncing stress balls off the ground would trigger her post-traumatic stress disorder.

Tinsley, who worked as a business system analyst for Caterpillar Financial, believed that the stress of her job was causing her to suffer adverse health issues. She emailed her supervisor, Paul Kaikaris, asking to be removed from a particular project, claiming that her “many [work] responsibilities … [were] causing [her] to be stressed beyond what [she was] physically able to handle,” which “negatively impact[ed her] work, sleep, and overall health.”

Kaikaris met with Tinsley and said he would see what he could do to take work off her plate. Six days later, however, Tinsey submitted a doctor’s note requesting four days off for a “confidential medical condition.” Upon her return, Kaikaris, good to his word, met with her and reassigned some of her projects.

Her job performance, however, continued to suffer. Kaikaris informed Tinsley that she was not following the prescribed methodology for completing her work, the quality of her work was subpar, and she had been leaving work early without prior approval. A poor formal mid-year review and a performance improvement plan followed.

In response, Tinsley claimed that Kaikaris rated her poorly and assigned the PIP in retaliation for her complaints that he had enabled a “hostile work environment” by permitting co-workers to bounce stress balls off the ground. Thereafter, Tinsley began submitting doctors’ notes ad seriatum requesting more time off for “mental and emotional duress brought on by an over-excessive workload, unrealistic deadlines, a hostile work environment and a manager’s reckless indifference to [her] mental and emotional well-being.” Those notes culminated in the company granting a five-week FMLA leave of absence.

At the end of Tinsley’s FMLA leave, her doctor cleared her to return to work “at full capacity.” However, because of her “post-traumatic stress disorder,” her doctor recommended that Caterpillar Financial return her “in a different work environment and specifically under a different manager.” The company refused the transfer or managerial change, but did permit her to take an additional eight weeks of medical leave (totaling 18 for the year).

At the end of that leave, and with Tinsley still insisting on a new manager, Caterpillar Financial decided that it had enough. It told her that it could not accommodate her “confidential” medical condition and that it did not believe that her request for a transfer to a different supervisor was a reasonable accommodation.

In Tinsley v. Caterpillar Financial Services, the 6th Circuit agreed.

Tinsley has asserted that her impairment (PTSD) impacted only the major life activity of working.… Thus, we must now examine whether Tinsley’s PTSD sufficiently limited her ability to perform a class of jobs or a broad range of jobs. The evidence demonstrates that it did not.… [T]he record is replete with undisputed evidence showing that Tinsley’s issues stemmed directly from Kaikaris’ management style as opposed to the responsibilities of a broad range of jobs. The clearest example of this is when Tinsley told Human Resources that she would be able to continue in the same position so long as she was under the direction of a different supervisor because her disability was triggered by “the way [Kaikaris] managed … with all the balls bouncing.” … Tinsley’s diagnosis does not limit her ability to work a broad class of jobs; rather, it relates solely to her ability to work under a specific manager. Accordingly, she is not “disabled” pursuant to the ADA and was thus not entitled to a reasonable accommodation of additional time off or a transfer.

The ADA covers working as a major life activity. However, for an employee to be “substantially limited” in that major life activity, it is not enough to be unable to perform the specific job. The employee must be “significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills, and abilities.”

This court reached the absolute correct result. It wasn’t that Tinsley couldn’t work as a business system analyst but that she just could not work under Kaikaris. Her own doctor said as much when he released her to return to work “at full capacity.”

If faced with a disabled employee claiming a substantial limitation in their ability to work, examine the request carefully. The ADA’s coverage of disabilities is broad. However, it is often difficult for an employee to establish “working” as a substantially limited major life activity. And, unless the employee cannot work in a class or broad range of jobs, the ADA does not cover them and you don’t have to offer to accommodate.

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Firing an Employee Because of His Heart Problems? Rethink That One

Jon Hyman The Practical Employer

Jonathan Baum worked as a scheduler for Metro Restoration Services.

In late 2014, he began to suffer cardiac problems. Over the course of the next several months, he went to the ER fearing a heart attack, had a heart catheter implanted, had an echocardiogram and wore a heart monitor. He occasionally also missed work for medical tests and treatments and sometimes worked remotely. His boss, and the owner of Metro, Patrick Cahill, was aware of Baum’s medical issues.

Following a work day on which Baum had worked remotely from his home, Cahill fired him. The expressly stated reason: “health issues and doctors’ appointments.”

Oops.

Baum then sued for disability discrimination.

Even with all of Baum’s cardiac issues, the 6th Circuit held that he could not establish that he suffered a physical impairment that substantially limited one or more major life activities. Therefore, Baum did have a legally protected actual disability. Baum had failed to identify a medical expert to testify and establish whether his cardiac problems substantially limit his cardiovascular and circulatory functions.

So do Baum’s impairments limit his cardiovascular and circulatory functions? They might. But to conclude that they did, a jury would need to understand them—how they function, and what that means for Baum. And to understand them, jurors would need an opinion from someone with “scientific, technical, or other specialized knowledge”: expert testimony.

Because Baum failed to disclose his doctor—or anyone else with specialized medical knowledge—as an expert witness, he lacks the evidence he needs. And without that evidence, he hasn’t created a factual issue over whether he is actually disabled.

Case closed, right? Not so fast.

The ADA does not only protect actual disabilities, but also perceived disabilities. On this latter claim, Metro had a huge problem.

Unlike actual disability claims, an employee proceeding on a claim of perceived disability need not prove a limitation of a major life activity, but only that the employer took an adverse action “because of an actual or perceived physical … impairment.” Thus, the lack of a medical expert was not fatal to this claim.

Baum argues that a jury could find that Metro fired him because Cahill thought Baum was disabled. For support, he relies on Cahill’s knowledge of Baum’s catheter, CAT scan, trip to the ER, and period where he wore a heart monitor. Baum also points to Cahill’s stated reason for firing him: his “health issues and doctor’s appointments.” …

Cahill’s knowledge of Baum’s medical issues—alone—is insufficient to carry the day.… But Baum has more—he has Cahill’s stated reason for firing him: his “health issues and doctor’s appointments.” That statement is what creates a factual dispute and makes it material. Giving Baum the benefit of the doubt, a jury could find that Cahill meant what he said. And if a jury so found, it could also find that Cahill perceived Baum to have a physical impairment and fired Baum because of that perception.

In other words, employers, it’s not the best idea to tell your employee that you are firing them because of their medical issue. It will not end well for you.

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The 7th Nominee for the Worst Employer of 2019 Is … the Disability Debaser

Jon Hyman The Practical Employer

The 7th nominee for the Worst Employer of 2019 is an employer that (allegedly) permitted a nearly year-long campaign to malign and harass an employee living with ADHD and Tourette’s syndrome.

Melinda Crooke worked as a line worker for Herbruck Poultry Ranch, an egg farm in western Michigan. As noted above, she has ADHD, which causes her to be overtly talkative and sometimes confused, and Tourette’s syndrome, which manifests in head twitches, facial tics, uncontrolled arm movements, and occasional swearing. According to the lawsuit the EEOC filed on her behalf, all of her co-workers knew of her disabilities.

Crooke claimed that as soon as her supervisor learned of her disabilities, her harassment at the hands of said supervisor and some co-workers began. They called her “Mindy Tourette’s,” “Gabby,” “Motormouth,”and “Wandering Wanda.” They mocked her Tourette’s syndrome by biting their tongues and making exaggerated hand movements. And, after she complained to HR, the mockery only worsened. For example, her supervisor sped up the production line to make it harder for her to keep up, and followed her into the bathroom during breaks to berate her for wasting time. When she complained again to HR, she claims she was told there was nothing anyone could do.

As a result, she quit her job and went to the EEOC, which has now filed suit on her behalf. According to EEOC Trial Attorney Dale Price, “An employer cannot condone a work environment where an employee with an impairment is ridiculed because of it. It must step in to stop such behavior.”

Otherwise, you not only might get sued, but you just might end up as one of the nominees for the Worst Employer of 2019.

Previous nominees:

The 1st Nominee for the Worst Employer of 2019 Is … the Philandering Pharmacist

The 2nd Nominee for the Worst Employer of 2019 Is … the Little Rascal Racist

The 3rd Nominee for the Worst Employer of 2019 is … the Barbarous Boss

The 4th Nominee for the Worst Employer of 2019 is… the Flagrant Farmer

The 5th Nominee for the Worst Employer of 2019 is… the Fishy Fishery 

The 6th Nominee for Worst Employer of 2019 Is … the Diverse Discriminator