As stated by an assistant attorney general within the DOJ, “We are sounding the alarm regarding the dangers tied to blind reliance on AI and other technologies that we are seeing increasingly used by employers. As technology continues to rapidly advance, so too must [the DOJ’s and EEOC’s] enforcement efforts to ensure that people with disabilities are not marginalized and left behind in the digital world.”

The Americans with Disabilities Act seeks to remove barriers for people with disabilities in everyday activities, including employment. It’s important to remember that the ADA applies to all parts of employment, including how an employer selects, tests, or promotes employees.

In their guidance, the DOJ and EEOC explained that employers are increasingly using AI and other software tools to help them select new employees, monitor performance, and determine pay or promotions. The use of this technology may lead to discrimination, even if it is unintentional. For example, the DOJ explained that some hiring technologies try to predict who will be a good employee by comparing applicants to current successful employees. Because people with disabilities have historically been excluded from many jobs and may not be a part of the employer’s current staff, this may result in discrimination.

Employers must be particularly wary of their AI software screening out applicants with disabilities. According to the DOJ:

Employers also violate the ADA if their hiring technologies unfairly screen out a qualified individual with a disability. Employers can use qualification standards that are job-related and consistent with business necessity. But employers must provide requested reasonable accommodations that will allow applicants or employees with disabilities to meet those standards, unless doing so would be an undue hardship. When designing or choosing hiring technologies to assess whether applicants or employees have required skills, employers must evaluate whether those technologies unlawfully screen out individuals with disabilities.

For example, if an employer uses facial and voice analysis technologies to evaluate applicants, people with disabilities like autism or speech impediments may be screened out, even if they are qualified for the job.

To avoid violating the ADA, employers must ensure that their hiring technologies are evaluating job skills, not disabilities. As explained by the DOJ, “Some hiring technologies require an applicant to take a test that includes an algorithm, such as an online interactive game or personality assessment. Under the ADA, employers must ensure that any such tests or games measure only the relevant skills and abilities of an applicant, rather than reflecting the applicant’s impaired sensory, manual, or speaking skills that the tests do not seek to measure.”

Lastly, employers should be mindful of their obligation to provide reasonable accommodations to individuals with disabilities. For example, if an employer uses an online interview program that does not work with a blind applicant’s computer screen-reader program, the employer must provide a reasonable accommodation for the interview, such as an accessible version of the program.

The agencies provided the following as examples of best practices that employers using hiring technologies may need to implement to ensure that individuals receive needed reasonable accommodations:

• • Tell applicants about the type of technology being used and how the applicant will be evaluated;
  • Provide enough information to applicants so that they may decide whether to seek a reasonable accommodation; and
  • Provide and implement clear procedures for requesting reasonable accommodations and making sure that asking for one does not hurt the applicant’s chances of getting the job.

Bottom Line

AI hiring tools, even if implemented for good-faith reasons such as increased efficiency or to eliminate implicit bias in hiring personnel, may result in discrimination against individuals with disabilities. Accordingly, employers utilizing this type of technology should review the DOJ’s and EEOC’s guidance to ensure their practices are legally compliant.

To review the DOJ’s and EEOC’s guidance, click here and here.

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Altruism is Not a Defense to Disability Discrimination

A car dealership in Sacramento, California is learning the hard way that even if well-intentioned, terminating an employee with a disability so that she can “focus on her health” is not a good idea.  The employee in this case, Aryan Rahimi, was a title clerk working for an automotive group. According to the complaint, approximately two months after Ms. Rahimi was hired, on October 12, 2018, she was hospitalized for extreme abdominal pain.  Ultimately, Ms. Rahimi was diagnosed with pancreatic cancer, but her physician cleared her to return to work on November 1.  Even though Ms. Rahimi’s physician cleared her for work, unprompted, her employer decided that because Ms. Rahimi’s condition was worse than anticipated there was “no way” she would be able to return to work on November 1.  On October 31, 2018, the group terminated Ms. Rahimi, urging her to contact them when she was ready to return to work, and suggesting that she “focus on her health.”

While encouraging Ms. Rahimi to focus on her health may have been well-intentioned, Ms. Rahimi did not request leave beyond her return-to-work date of November 1, and the employer’s attempt to be kind did not shield them from liability under the ADA.  The EEOC sued the employer alleging that the group discriminated against Ms. Rahimi either because of her real or perceived disability. The group agreed to pay Ms. Rahimi $150,000 in lost wages and emotional distress damages.

A Failure to Act Leads to a Failure to Accommodate Claim

Contrast the employer’s rush to conclude that an employee could not or should not work at all, with a recent case in Minnesota where an employee, Beth Layeux, brought suit alleging her employer, Dedicated Logistics Services (“DLS”), failed to accommodate her disability.  After initially performing her job well, Ms. Layeux began to have attendance problems and disclosed to her supervisor that she had anxiety and depression. To no avail, Ms. Layeux attempted to meet HR multiple times to explain the root cause for her excessive tardiness.  Then, after arriving to work six minutes late one day prior to her scheduled meeting with HR, DLS terminated her employment.

In this case, the court concluded that even though Ms. Layeux did not explicitly request an accommodation, there was enough evidence in the record to support a reasonable inference that DLS knew of Ms. Layeux’s disability and her need for an accommodation but failed to take steps to address these issues with her.   Once Ms. Layeux’s supervisor knew that her attendance issues may have been caused by an underlying medical issue, DLS should have met with her to discuss her medical condition and whether an accommodation would have helped her arrive on time and do her job effectively.

Bottom Line

Both cases provide an example of how important it is for employers, once on notice of an employee’s medical issue, to engage with the employee and work together to find an appropriate accommodation.  The automotive group did not meet the requirements of the ADA because it made assumptions about the employee’s ability to work once a medical issue had been disclosed. DLS failed because the supervisor (and arguably others) failed to take action once it became clear that the employee was struggling at work because of her self-disclosed mental health challenges. Both cases illustrate that employers should resist the temptation to assume they know what accommodation might be best or to simply ignore the situation. The solution is easy – when an employee discloses a medical condition, employers should simply say, “How can we help?”

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The guidance explains that COVID-19 may be a disability under the ADA if the virus results in an employee:  (1) having a physical or mental impairment that substantially limits one or more of the individual’s major life activities, (2) having a record of an impairment (as would be likely with long-haul COVID), or (3) having been regarded as having such an impairment.

Specific to COVID, the EEOC explains that the multiple-day headaches, dizziness, and brain fog associated with the virus are all examples of having an impairment under the ADA. Moreover, an employee who contracts COVID-19 does not have to show they experienced virus-related symptoms for a specified period before they may be considered “disabled” under the ADA.

The EEOC guidance notes, however, that not every employee who contracts COVID-19 qualifies as disabled. An individualized assessment is still required to determine whether the employee’s condition meets one of the three definitions of disability under the ADA.

Bottom Line

In light of this new guidance, employers should be on notice that an employee who has COVID-19 may, under certain circumstances, be entitled to the same protections as any other employee with a disability under the ADA.

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In the Kaiser case, an employee, Sharion Murphy, suffered from a number of impairments including PTSD and claustrophobia.  Murphy requested an accommodation from Kaiser to be allowed to enter the building through a non-revolving door.  Kaiser refused Murphy’s numerous requests even though the building Murphy worked in had both revolving and non-revolving doors.  Eventually, Murphy contacted the EEOC to complain about Kaiser’s denial of her requested accommodation.

After pre-litigation conciliation efforts failed, the EEOC filed suit on behalf of Murphy.  In Kaiser’s motion for summary judgment, Kaiser argued that Murphy failed to indicate how the employee’s claustrophobia impacted her ability to perform the essential functions of her job.  In its August 9, 2021, decision, the Honorable Amy Totenberg for the Northern District of Georgia, found Kaiser’s arguments unpersuasive.  The court held that the ADA requires employers to reasonably accommodate qualified, disabled employees by “making existing facilities used by employees readily accessible to and usable by individuals with disabilities.”  42 U.S.C. 12111(9)(A).  Importantly, an employer’s obligation to accommodate an employee extends beyond those that would allow an employee to perform the essential functions of their job.

With the court’s order finding Kaiser liable for violating the ADA, Kaiser agreed to pay Murphy $130,000 and entered into a consent decree agreeing to other remedial measures including training, modifications to employee forms, and allowing the EEOC to monitor its accommodations process.

Bottom Line

Employers must understand that employees are entitled to reasonable accommodations which allow them to access the workplace and enjoy the other privileges and benefits of employment.  Accommodations are not limited to those that allow an employee to perform the essential functions of the job.  Individuals that handle employee accommodation requests must be aware of the various types of accommodations an employer may need to provide.

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According to the CDC, some individuals who were infected with the COVID-19 virus, even if their cases were asymptomatic, report experiencing a wide range of symptoms weeks or months after the initial infection.  These symptoms include tiredness or fatigue, “brain fog,” cough, chest or stomach pain, headache, pins-and-needles feeling, changes in smell or taste, and sleep problems, among others.  The illness is referred to as “long COVID,” “long-haul COVID,” or “post-acute COVID-19.”

To analyze whether long COVID is considered a disability, the departments looked to the definition of disability found in 42 U.S.C. § 12102: “a physical or mental impairment that substantially limits one or more major life activities of such individual, a record of such an impairment, or being regarded as having such an impairment.”

Considering the expansive definitions, HHS and the DOJ determined that long COVID can be a physical or mental impairment under the ADA, and that in some instances, can substantially limit one or more major life activities.  However, the guidance clarified that a person suffering from long COVID may not always exhibit symptoms that substantially limit a major life activity.  For that reason, all assessments of disability must be conducted on a case-by-case basis.

Employees suffering from long COVID have begun filing lawsuits against employers alleging failure to accommodate and disability discrimination under various state and federal laws.  In one such lawsuit, an employee claims that after she contracted COVID-19, she suffered lingering breathing issues and was determined to be a COVID long hauler.  Probert v. Mubea, Inc., No. 2:21-cv-11660 (E.D. Mich. July 21, 2021).  To support her claim of disability discrimination in violation of the Michigan Persons with Disabilities Civil Rights Act, the employee alleges her breathing issues “affected the major life function of breathing” rendering her disabled, that the disability did not impede her ability to perform her job, and that her employer terminated her, in part, because of the disability.  Id.

Bottom Line

Employers should be prepared to field employee accommodations requests related to long COVID and should follow their established accommodation request procedure.  If an employee requests an accommodation, such as additional break time, part-time or modified work schedule, or reassignment, employers can ask questions or request medical documentation to determine whether the employee’s long COVID is, in fact, a disability and whether any accommodation is warranted.

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Pursuant to guidance issued by the Equal Employment Opportunity Commission (EEOC), “[a]s an employer, you are responsible under Title I of the ADA for making facilities accessible to qualified applicants and employees with disabilities as a reasonable accommodation, unless this would cause undue hardship.” In addition, the ADA also makes it unlawful for an employer to discriminate against a qualified applicant or employee with a disability.

Accessible Websites

Websites pose a particular problem because applicants and employees may be unable to apply on, or navigate, an employer’s website. Thus, it is vital that your website is ADA accessible. A website is generally deemed accessible if complies with the World Wide Web Consortium’s Web Content Accessibility Guidelines (WCAG) 2.0 AA, although neither the EEOC nor the Office of Federal Contract Compliance Programs (OFCCP) has officially adopted the WCAG yet. Still, compliance with the WCAG can help prove your good faith effort to insure accessibility, and actually is a topic of consideration during an OFCCP Section 503 focused review of a federal contractor.

The following is a brief summary of some accessibility tips set forth in the WCAG:

Naturally, in addition to websites, employers must ensure that all other aspects of their work environment are accessible to applicants and employees with disabilities. The EEOC has provided comprehensive guidance for employers in this regard.

Lastly, if your business is a place of public accommodation (e.g., restaurant, retail store, bank, etc.) that is open to the public, you have additional obligations to provide accessibility to visitors under Title III of the ADA.

Bottom Line

Website accessibility has been a huge source of litigation in recent years.  Before you fall victim, make sure that your website and workplace are accessible and that you have in place the necessary process to address requests for accommodations.

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Throughout Darrell Hartwell’s 16 years as a firefighter/EMT for Naval Support Activity in Panama City, Florida, he was late for work on a regular basis.  For the most part this was no issue since the Fire Department maintained a Memorandum of Agreement (MOA) with union allowing firefighters to informally exchange an hour of their time with a co-worker at the beginning or end of the shift.   Thus, a firefighter running late could call and ask a co-worker to cover for them while agreeing to return the favor sometime in the same pay period.  Hartwell did this on a constant basis with little attention from management.

Employee’s Tardiness is Alarming

Things changed for Hartwell in 2011 in two very significant ways.  First, the MOA was revoked and firefighters could only swap shifts on an occasional basis, and only with prior approval.  Second, Hartwell got a new supervisor who was not nearly as forgiving about his tardiness.  In fact, Hartwell began receiving regular and increasingly severe disciplinary actions, to the point where he was served with notice that termination proceedings were about to commence.

Hartwell then informed the Department that he had been recently diagnosed with Attention Deficit/Hyperactivity Disorder (ADHD), Depression, and Generalized Anxiety Disorder. He contended that these conditions caused his tardiness because they triggered insomnia for which he took medication that produced morning drowsiness.  Hartwell requested that he be allowed to use an hour of sick leave to cover his tardiness, and that the MOA be reinstated so he could resume informal shift-swapping.  The Department rejected these proposals and proceeded with Hartwell’s termination.

Hartwell sued, claiming failure to afford reasonable accommodation.  After the lower court dismissed the claim summarily, Hartwell appealed to the 11^th Circuit Court of Appeals.

Employee Gets a Wake-Up Call

Hartwell’s claim boiled down to the following proposition: The long history of accommodating his tardiness proved that the accommodation was reasonable and the Department was therefore legally bound to continue it.  The Appeals Court disagreed and affirmed the dismissal.  First, they concluded that regular and timely attendance is an essential function of a firefighter job – you cannot fight fires if you are not present at the scene.  Since Hartwell was not able to perform this essential function either with or without his requested accommodation (late arrival), he was not a qualified disabled person under the Americans With Disabilities Act (ADA) and therefore was not entitled to reasonable accommodation.

In addition, the Court explained that even if an employer elects to accommodate an employee who cannot perform their job functions, they are not required to continue doing so into the future.  If an employee is not legally entitled to accommodation, the employer’s benevolence in offering one is not irrevocable and may be ended without liability.  As such, it was permissible for the Department to decide that though they had generously accommodated Hartwell in the past, they no longer wished to do so.

Finally, the Court noted that even if Hartwell merited accommodation, his request to be allowed to report late to work was an undue burden on the Department.  Requiring other firefighters to stay past their ending time to cover for Hartwell would increase their fatigue and therefore expose them to a greater safety risk in their inherently dangerous job.

Bottom Line

The important distinction in this case is that the employee was not qualified for his job because he could not perform an essential function (reporting to work on time) with or without accommodation.  The fact that the employer let this slide did not mean that they were obligated keep doing so.

In other cases, employees are qualified for their jobs but have received long-standing accommodations that permit them to perform the essential functions.  In those instances, it is more likely that a court could find that the longevity of an accommodation is evidence of its reasonableness.  Employers seeking to claim in those instances that such accommodation is not reasonable must be prepared to demonstrate substantially changed circumstances justifying the discontinuance of the accommodation.

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Marcus Maxwell worked as a Class B Truck Driver for Washington County, Mississippi. He hurt his ankle getting out of a truck but continued working sporadically while undergoing surgeries on the injured ankle.   Eventually, he was released to work light duty but was told there were no light duty jobs available. After being upgraded to “medium duty” work, Maxwell again was told that there were no openings into which he could be transferred.

An Open Question

Thereafter, Maxwell sought to renew his Commercial Driver’s License (“CDL”) with the Department of Transportation but failed the medical exam due to “medications.” He reported this to the company, who promptly terminated him in a letter stating that since he no longer had a valid CDL he could not drive for them, and since there were no other job available, he would be terminated.

Maxwell sued in federal court under the ADA for failure to accommodate, noting that while he was being told there were no openings, an employee (Walsh Wigfall) in another department was on FMLA leave due to a foot ailment.  Wigfall apparently was unable to work without wearing very expensive special shoes that he could not afford.  The Country tried to convince him to buy the shoes and thought insurance might pay part of the cost.  A supervisor even offered to loan him money for the purchase.  Wigfall resisted, so when his FMLA leave ended the County fired him for failure to return from a leave.

A Clear Understanding

Maxwell contended that it was “clear” that Wigfall would not be returning and that the County therefore should have transferred him to Wigfall’s job.  The court disagreed, noting that “[a] position is not considered vacant if the employer has a legitimate reason, unrelated to the employee’s disability, for reserving the position for others.”

The court pointed out that Wigfall’s FMLA leave extended for more than a month after Maxwell’s termination and for three months after Maxwell requested reassignment.  While it may have been “clear” that Wigfall would not come back, it was not certain. Wigfall continued talking to the County about his treatment right up until the end of his leave and never actually provided definitive word on whether he would return. Indeed, he could have changed his mind at the last second and purchased the shoes permitting him to work.

The Court concluded that an employer need not preemptively terminate an employee on leave just to accommodate a disabled co-worker, and that the employee’s position should not be considered open even though it seems likely that the incumbent will not be returning.  Maxwell’s claim was therefore dismissed.

Bottom Line

The Court declined to decide whether the outcome might have been different had the employer known definitively (e.g. with a doctor certifying a permanent disability) that Wigfall would not return.  That could be a closer case.

Nevertheless, this decision is useful in instructing employers that while there is any chance that an employee might return from a FMLA (or other) leave, that employee’s job is not considered open with respect to the obligation under the ADA to consider transfer to an existing vacancy as a possible accommodation.

The post Is a Job “Vacant” When the Employee is On Leave and Unlikely to Return? appeared first on Felhaber Larson.

Rochelle Garrison was a lead sales associate at a Dollar General store and was one of four “key holders” who had to coordinate their schedules to make sure that one of them was available to open and close the store.

Employee Asks For Time Off

As she continued to struggle with migraines, anxiety and depression, Garrison texted her supervisor, Sandra Bell, to ask how she could request a leave of absence.” Bell replied that she was not certain but would ask the District Manager.

Garrison followed up by text a week later and Bell responded with three critical points: (1) there was no leave of absence available; (2) Garrison could remain employed as long as she could perform her job and “not be sick all the time,”; and (3) she should read the employee handbook.

Garrison missed a shift in the following week for health issues and requested vacation for the remainder of that week.  Bell refused to grant the request because two of the other three key holders were scheduled to be gone. Garrison then told Bell that she was quitting in order to help herself “get better.”

Garrison sued for a variety of claims, most notably disability discrimination under the Americans with Disabilities Act (ADA) and interference with her rights under the Family and Medical Leave Act (FMLA).  The trial court dismissed the case and Garrison appealed to the Eighth Circuit Court of Appeals (which covers Minnesota).

There’s No Magic to It

The Eighth Circuit reversed the dismissal of the ADA claim.  They explained that to prevail on the claim, Garrison would have to show:

(1) The company knew she was disabled; (2) she requested an accommodation; (3) the company failed to engage in an interactive process” regarding possible accommodations; and (4) her disability could have been reasonably accommodated.

The Court had no difficulty on the first point, noting that Garrison and Bell had discussed and texted about Garrison’s medical issues and doctor’s appointments.

The Court then explained that while Garrison did not actually use the term “accommodation”, such “magic words” are not necessary.  The determining factor is simply whether the employer was “aware of the need for an accommodation.” In this instance, Bell knew about Garrison’s medical issues, doctor’s appointments and requests for a leave of absence. Thus, a reasonable jury could conclude that Garrison had sufficiently requested an accommodation even though she did not use those precise words.

If Garrison’s request was sufficient to constitute a request for accommodation, it would be reasonable to find that the company did not respond appropriately. Simply referring Bell to the employee handbook, without some sort of further assistance, just was not enough to satisfy the employer’s obligation to engage in an interactive process to consider the accommodation request.

Finally, the Court found that had the company engaged in an interactive process, it is reasonable to conclude that they could have identified a suitable accommodation. Since Bell testified that she would have “made it work” if Garrison had been entitled to FMLA leave, it is reasonable to believe they could also have done so to accommodate Garrison’s disability.

Accordingly, the Eighth Circuit concluded that if this case were to go to trial, a reasonable jury could find for that Garrison met all her obligations under the ADA.  They therefore remanded the case back to the lower court to permit such a trial to proceed.

Same Facts, Different Result

Interestingly, on these very same facts, the Court affirmed the dismissal of Garrison’s FMLA claim.  Unlike the employer’s obligation to initiate the interactive analysis under the ADA, the Court explained that employees seeking FMLA leave generally must adhere to the employer’s specific method for requesting leaves of absence.  Under the company handbook in this case, employees were obligated to notify their manager and then contact the company’s third-party benefits administrator to initiate the process for a leave.  Garrison failed to follow this procedure choosing instead to simply resign.

Therefore, even though Garrison’s supervisor told her that there was no leave available to her, she could still have read the handbook, contacted the administrator and initiated the procedures for a leave without the supervisor’s approval.  Her failure to follow the prescribed procedure doomed her FMLA claim.

Bottom Line

This decision is a bit curious.  If the employee’s words were sufficient to trigger an interactive accommodation process under the ADA, why weren’t they also enough to spark the employer’s obligation to initiate the FMLA certification process? As is often the case, the answer is in the fine print.  The ADA does not require employees to follow any particular process to seek out an accommodation but FMLA does in fact require that the employer’s leave-request procedures be invoked.

This does not mean that employees can be left completely to their own devices.  Once an employer concludes that an employee may be asking for a FMLA leave (despite the absence of “magic words”), the employee should be advised of the availability of FMLA leave and be advised of the proper means of requesting such a leave.  It is then up to the employee to follow the procedure.

Also, it is best not to tell the employee that FMLA is not available when it actually is – the employer got away with that one in this case but a similar result cannot be guaranteed.

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John Kelleher worked as a CCTV Truck Operator For Fred A. Cook, Inc.  His baby daughter suffered from a variety of medical symptoms that would eventually be diagnosed as Rett Syndrome, a severe neurological disease.

Kelleher told his supervisor about his daughter’s condition and that he might need to leave work suddenly on occasion to help care for her.  Right after this discussion, Kelleher was assigned to work exclusively in “the shop” which paid a lower wage than the work he had been performing.

It’s Not Hard To Live With Someone Else’s Troubles

A few weeks later, Kelleher was told that he could no longer leave work immediately after his shift ended because the company required employees to remain on the premises for a period of time in case of emergency.  Kelleher asked if he could work an 8-hour shift for just one week so that he could care for his daughter.  The request was denied, and Kelleher was told that “his problems at home were not the company’s problems.”

Over the weekend, Kelleher’s daughter suffered a seizure requiring emergency hospitalization.  Kelleher told the company that he would not be in on Monday.  When he arrived for work on Tuesday morning, he learned that he had been demoted to a Laborer position that required “shoveling sewer systems.”

Subsequently, Kelleher arrived to work 10‐15 minutes late on one occasion.  He was promptly sent home and told he would be contacted if he was needed.  A month later, he received a letter terminating his employment.

Kelleher filed a disability discrimination charge with the Equal Employment Opportunity Commission (EEOC) and then sued in federal district court under the Americans with Disabilities Act (ADA).  The District Court dismissed the claim without a trial on the grounds that Kelleher was unable to meet the requirements of his job.  He appealed the decision to the Second Circuit Court of Appeals.

No Guilt By Association

Kelleher’s lawsuit pressed a claim commonly referred to as “associational discrimination.”  It is based on the ADA provision making it unlawful to discriminate against “a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association.”

The Company argued that Kelleher’s claim failed because he was not a qualified individual.  They said he essentially admitted this by asking for relief from his regular schedule, which they had no obligation to provide since the ADA only mandates accommodation when the employee is disabled.  Factoring in his other attendance deficiencies, the employer insisted that Kelleher was not a qualified person and therefore was not protected under the ADA.

The Circuit Court disagreed, calling the company’s argument confused.  They explained:

Though the ADA does not require an employer to provide a reasonable accommodation to the nondisabled associate of a disabled person, an employer’s reaction to such a request for accommodation can support an inference that a subsequent adverse employment action was motivated by associational discrimination.

The Court concluded that in this instance, a fact-finder could determine that the Company was simply enforcing strict but legitimate performance standards.  On the other hand, it would also be reasonable to find that the Company overreacted to minimal performance miscues (a single missed day and one 15‐minute late arrival) and mischaracterized the reason for his request for a one-week schedule change.  When combined with the ill-advised warning to “leave his personal problems at home,” Kelleher’s adverse treatment could be seen as a manifestation of the Company’s  animosity toward perceived inconveniences arising from Kelleher’s association with his disabled daughter.  Kelleher should have the chance to prove this in court.

The Second Circuit therefore reversed the dismissal and remanded the case back for a full trial of Kelleher’s associational discrimination claim.

Bottom Line

It is sometimes difficult to glean from a written court decision why a relationship between an employer and employee has gone so far off the rails. The employer in this case seems to have responded rather strongly to the issues posed by their employee but perhaps there is more to that story.

What we do know is that even where an employer might seem to have the right to take certain actions, the manner in which those actions are taken or the words used in taking them could be sufficient to prove that the actions were unlawfully motivated.  Careful decisions and thoughtful words almost always carry the day.

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Kimberly Lowe, a massage therapist at a Massage Envy outlet in Tampa, Florida, asked for time off so she could visit her sister in the West African nation of Ghana. Although the leave was approved initially, co-owner Ronald Wuchko told Lowe right before she was scheduled to leave that he would fire her if she went to Ghana.  Wuchko was aware of an Ebola epidemic in other West African countries and was worried that Lowe would “bring [Ebola] home to Tampa and infect everyone.”  Lowe refused to cancel her trip and Wuchko fired her on the spot.

Que Será, Será

Lowe filed a disability discrimination charge with the Equal Employment Opportunity Commission (“EEOC”), who found in Lowe’s favor.  EEOC then sued the employer on Lowe’s behalf claiming that they violated the ADA in two distinct ways: (1) terminating her because they regarded her as disabled; and (2) terminating her due to her association with people in Ghana whom they believed to be disabled by Ebola.  The lower court dismissed the case, prompting the EEOC to take the case to the Eleventh Circuit Court of Appeals.

Under the ADA, an employer may not discriminate against a person because that person has a disability, has a record of a disability or is regarded as having a disability. To be “regarded as” having a disability, the individual must demonstrate adverse action because of an actual or perceived physical or mental impairment that limits, or is perceived to limit, a major life activity.

The Eleventh Circuit affirmed the dismissal of the claim, ruling that the ADA does not cover an individual whom the employer perceives to be “presently healthy with only a potential to become ill and disabled in the future…” The Court explained that the statute must be read naturally and that an employer simply cannot fire someone because of a perceived impairment if the employer does not actually perceive the employee as having that impairment.

Interestingly, the Eleventh Circuit cited the EEOC’s own interpretive guidance for support.  That guidance provides that a “characteristic predisposition to illness or disease” does not constitute a physical impairment under the ADA. By analogy then, the Court concluded that a “heightened risk of developing the disease Ebola in the future due to her visit to Ghana” also would not qualify as an impairment.

All Alone

The Court then turned to the EEOC’s “association” claim.  The ADA bars employers from discriminating against applicants and employees due to the “known disability of an individual with whom the [applicant or employee] is known to have a relationship or association.”

The Court found no indication that the employer knew that Lowe had an association with a specific disabled individual in Ghana when terminating her employment. The only person whom they know Lowe would be visiting was her sister, who did not have Ebola.  Moreover, Lowe never said she was traveling to Ghana to work with or visit Ebola victims, nor to assist in an Ebola crisis in any way.  Finally, there actually was no Ebola outbreak in Ghana and even if there was, alleging that Lowe might casually come in contact with an Ebola sufferer simply was not sufficient to make out a claim that she “associated with someone with a disability.”

Bottom Line

This is a helpful decision but Minnesota employers should be still cautious.  For one thing, this case arose in the Eleventh Circuit (covering the Southeastern states) and it is not certain that the Eighth Circuit will follow this line of reasoning. Moreover, we can be pretty sure that the EEOC will continue to press their interpretation that the ADA does protect employees from the perception of future impairment.

Remember too that other forms of discrimination may enter the picture.  An employer that screens out employees of a particular protected class (e.g. gender, race, national origin or age) because of a belief that such a group poses a heightened risk of illness or disability will likely end up facing a serious discrimination case sooner or later.

That being said, it is good to see that some courts are choosing to limit application of the ADA to those people for whom the statute was actually enacted to protect.

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Tasha McNeil was a critical call dispatcher in the Union Pacific Railroad’s 24-hour call center. Dispatchers respond to calls about incidents on or near railroad property that might impact the safety of employees or members of the public.

Work Shift Includes Overtime

In order to maintain continuous coverage in the call center, dispatchers are not allowed to end their shift until the next shift’s dispatcher arrives.  They also must remain beyond shift’s end if they are on a call or are otherwise actively working to resolve an issue.  At times, dispatchers have to work up to four hours of overtime if another employee fails to report for work.

In February 2014, McNeil went on short-term disability leave. She was cleared by her doctor to return to work in June on a part-time basis working four shifts per week from 6:00 a.m. to 2:15 p.m.  She could then return to a full time schedule in August. The company arranged to accommodate this restriction but McNeil opted instead to remain on out on leave.

In August 2014, McNeil submitted medical paperwork verifying that she could return to full time work on September 2. Her physician wrote, however, that she should work “only morning shifts and no overtime.” The paperwork did not indicate any specific duration to this restriction but McNeil verbally assured the company that it would last only until January.

In response to the paperwork, the company sent McNeil a letter stating that they could they were not able to accommodate her at that time.  McNeil called a company manager to find out why she could not return since her restriction was temporary. The manager responded that the paperwork did not specify how long the restriction would remain in place and that she would have to submit an updated medical verification stating that it was temporary. McNeil never submitted the suggested verification and after her long-term disability benefits ended in October 2015, she was terminated.

Employee Says Overtime Not Essential

McNeil sued in federal court alleging various claims, including discrimination in violation of the Americans with Disabilities Act (ADA).  The lower court dismissed, finding that the ability to work overtime was an essential function of the dispatcher position.  The job was specifically designed to insure adequate staffing such that relieving McNeil from the overtime requirement would either have forced co-workers to put in excessive overtime or would have left the call center understaffed.  Either way, the accommodation would present a heightened safety risk.

McNeil appealed to the Eighth  Circuit Court of Appeals on the following grounds:

 – Since the company had been willing to accommodate her inability to work overtime on a temporary basis in May of 2014, the overtime requirement obviously was not an essential job function;

– Her restrictions were temporary and therefore could have been accommodated;

– Other employees were not terminated despite the inability to work overtime; and

– The company failed to engage in an interactive process to obtain complete medical information and/or examine other job placement as an accommodation.

Court Finds Undue Burden

The Eighth Circuit affirmed the lower court’s dismissal of the case, explaining first that the willingness to grant a temporary accommodation does not undermine an employer’s contention that granting the same accommodation on a permanent or indefinite basis would pose an undue burden.  Therefore, the company’s offer to accommodate McNeil’s reduced schedule for two months did not mean that their refusal to do so on an ongoing basis was unreasonable.

The court paid no regard to McNeil’s contention that her restrictions were temporary.  They observed that the medical paperwork did not support this contention and she never complied with the company’s suggestion that she submit updated, clarifying medical documentation. Thus, the company was entitled to interpret her restrictions as indefinite.

The court also rejected McNeil’s claim that the overtime requirement could not be an essential job function because other employees were accommodated despite restrictions on overtime.  The court explained that the three employees that McNeil referenced could all work some overtime.  One employee was able to work “an occasional 12 hour shift” while another could put in “10 hour days as tolerated.” A third was restricted to “[o]ccasional (up to 33% of the time) early call in or overtime.” Thus, all three could be counted on to finish end-of-shift calls and occasionally come in early or stay late until their replacement arrived.  McNeil, on the other hand, could do no extra work, thereby presenting a very different and more burdensome accommodation issue.

Finally, the court rejected McNeil’s argument about the interactive process, noting first that it was she who failed to interact effectively by not taking the necessary steps to update her medical documentation to advance the communication between her and her employer.

In addition, they found that the record did in fact reflect that McNeil had been referred to the company’s “Disability Prevention and Management Team” which would help her learn about other vacancies within the company and assist her in applying for them. Since McNeil never followed up on this referral, she could not credibly claim that the company was non-responsive

Bottom Line

As we previously reported in Court Says Accommodation Not Required For Employee Who Can’t Work Overtime, the ability to work overtime can be an essential job function for which accommodation is not needed. To make that case, employers must (as the Union Pacific did in this case) make a compelling argument that overtime is critical to the job’s effectiveness.  Moreover, the need to work overtime should be included in job descriptions and recruitment materials.

In the right case, this defense will carry the day.

The post Eighth Circuit Again Says Overtime Restriction Need Not Be Accommodated appeared first on Felhaber Larson.

As Regional Sales Manager for UPS, Michael Lansdale traveled quite a bit and therefore was given a corporate credit card to use for work-related expenses. Using the credit card for personal purchases was explicitly prohibited under UPS policies.

UPS Ships Employee Out

UPS noticed inconsistencies in Lansdale’s credit card use and expense reports, which prompted an internal investigation.  UPS’s Security Investigator and HR Manager questioned Lansdale about the credit card and expense reports, and also about his personal life and drinking habits. Lansdale eventually signed a statement admitting that he used the credit card to hide alcohol-related purchases from his wife. The next day, UPS fired Lansdale.

Lansdale sued under the Americans with Disabilities Act (ADA) and the Minnesota Human Rights Act.  He claimed that he was fired only after UPS learned that he drank too much.  Therefore, he was discriminated against either because of his disability (alcoholism) or because UPS perceived him as disabled.  Lansdale further contended that the interview questions about his drinking habits violated the ADA’s ban on disability-related inquiries. UPS countered that Lansdale was terminated for cause for failing to honor company policy regarding corporate credit card use.

After a full trial, a jury found for UPS on all counts. Lansdale then filed post-trial motions with Judge John R. Tunheim arguing that the jury’s verdict was inconsistent with the evidence presented and that the judge made legal errors during the course of the trial.

Motion To Overturn Jury Verdict Returned to Sender

Judge Tunheim first addressed Lansdale’s argument about the disability-related inquiries by finding that even if the inquiries were prohibited, Lansdale failed to prove they were the reason he was fired. The jury had sufficient basis to conclude that Lansdale’s termination resulted from the company’s investigative evidence of Lansdale’s violation of the credit card policy, and from his written confession of that violation.

As for the jury’s dismissal of the discrimination claims, the judge noted that while both Lansdale and his doctor testified that he drank more than he should, the doctor never provided a formal diagnosis of alcoholism and Lansdale failed to offer any expert testimony to persuade the jury that he actually was an alcoholic.  Moreover, he offered no evidence that his drinking impaired a major life activity – a requirement for establishing that a medical condition is a recognized disability.  Therefore, the jury was justified in finding that Lansdale was not disabled.

Judge Tunheim explained further that even if Lansdale was an alcoholic, or was perceived as such by UPS, there was more than enough evidence from which the jury could conclude that it was Lansdale’s job-related misconduct that caused his termination, not the fact that he suffered from (or might have been perceived as suffering from) a disability.

Finally, Lansdale argued that it was wrong that he was prevented from offering any evidence at trial relating to UPS’s failure to accommodate him.  Judge Tunheim disagreed since Lansdale never requested an accommodation from UPS.  The judge noted that it is the employee’s duty to alert the employer to the need for an accommodation and to provide sufficient information to the employer regarding the nature of the disability and its restrictions. Simply having a disability is not sufficient to obligate an employer to initiate the accommodation process.

Since Lansdale failed to show that the jury had no reasonable basis for their decisions, or that the judge ruled improperly in any determinative way, the jury verdict in favor of UPS was upheld.

Bottom Line

No matter how many smoke screens the Lansdale tried to put up at trial, the judge had a clear view of the fact that UPS offered a cogent explanation and sufficient evidence of a legitimate basis for termination. That’s a package that usually delivers a winning defense.

We thank Summer Associate Kau Guannu for her substantial assistance in preparing this article.

The post Court Delivers Bad News to UPS Employee Claiming Disability Discrimination appeared first on Felhaber Larson.

James Graham, Jr., worked as head mechanic and maintenance supervisor for Arctic Zone Iceplex, an ice rink and recreational facility in Westfield, IN.  His duties included maintaining the ice rink driving the Zamboni, a vehicle that smooths the surface of the ice.

Employee is Skating on Thin Ice

Graham was not exactly employee-of-the-month material.  He generated complaints from customers and co-workers about his attitude, and he often failed to complete his job tasks in a timely manner.  However, Arctic Zone never issued him any disciplinary notices for his behavior or job performance.

At one point, Graham took a 3 month leave of absence due to a job-related injury.  He returned with various medical restrictions, including the need to work sitting down.  In response, Arctic Zone assigned him to perform skate sharpening, a job which they believed could be performed entirely while sitting down.  Graham disagreed and felt that this job was outside of his medical restrictions but he but never informed the company.  When his restrictions were lifted, Graham was returned to his regular position but assigned to the evening shift.  Arctic Zone said he was needed during the evening due to seasonal needs but Graham viewed it as a demotion.

A few months later, Graham crashed the Zamboni, producing “over two feet of jagged plastic” sticking out into the ice rink.  Arctic Zone thereupon terminated Graham citing the following reasons:

• poor attitude  about  his  change in position;
• poor attitude toward customers;
• not completing his work on time;
• insubordination; and
• the Zamboni accident, which threatened customer safety and cost revenue while the rink was repaired.

Accommodation Claim Gets a Cold Shoulder

Graham sued in federal court under the Americans with Disabilities Act, claiming that Arctic Zone failed to accommodate his disability and discriminated against him.   The lower court granted Arctic Zone’s motion for early dismissal and Graham appealed to the Seventh Circuit Court of Appeals.

On the accommodation claim, Graham contended that his assignment to skate sharpening was inadequate because the job could not be performed sitting down as his restriction required.  The court disagreed, explaining that accommodation requires an interactive process between the employee and employer.  Part of that process demands that the employee provide sufficient information to the employer to allow them to ascertain the appropriate accommodation.  An employer cannot be held liable for failure to accommodate if the employee fails to comply with this obligation.

In this case, Graham never informed Arctic Zone that he felt skate sharpening required him to stand.  The court deemed this a “textbook example” of failing to give the employer sufficient information to let them consider possible accommodation.  They therefore affirmed the lower court’s dismissal the failure-to-accommodate claim.

Discrimination Claim Is Frozen Out

As for the discrimination claim, the court explained that since Arctic Zone had articulated legitimate, nondiscriminatory reasons for the termination, Graham had to show that these reasons were pretextual. In this regard, the court observed that the issue is not whether the employer’s stated reasons were wrong or unfair but rather, whether the employer “honestly believed” in the reasons offered for the termination.

Graham claimed that all of the behavioral and performance-related reasons in the termination notice had to be pretextual because he never received any prior disciplinary actions for them.  The court countered, however, that the company’s “decision to let something slide without a formal response does not mean that it went unnoticed or untallied.”  An employer does not forfeit the right to address wrongdoing now just because they failed to do so earlier. The court concluded that in light of the evidence of Graham’s wrongdoing, a reasonable jury could not conclude that Arctic Zone was lying about the reasons for termination simply because they had not raised these issues previously.

Graham then attacked the company’s reliance on the Zamboni accident by noting that Arctic Zone overstated the significance of the matter – it created only minor damage.  In addition, he argued that a non-disabled employee had a similar, but much more costly accident but was not terminated.   The court responded that the other accident did not result in a hazard to their customers while Graham’s incident left the rink unusable until it was repaired.  Moreover, the employee in question had been an excellent performer without any previous incidents in his work record.  As such, the two employees were not similarly situated enough to permit a jury to conclude that the reasons offered by Arctic Zone for the more serious consequences handed down to Graham were pretextual for disability discrimination.

Bottom Line

This is an interesting decision that overlooks the lack of supportive documentation and still gives the employer the win.   This is probably attributable to the fact that the employee never offered any evidence of a wrongful motive on the employer’s part.  He just argued that the employer’s evidence was not as strong as it could be. Even if that was true, the court still found the employer’s evidence to be sufficiently persuasive.

Obviously, this is not a signal to stop documenting employee performance or to show up in court without solid proof of your lawful decision-making.  Instead, this case simply shows that good decisions made for the right reasons can still carry the day even if all the i’s aren’t dotted and the t’s aren’t crossed.

The post Zamboni Driver’s Disability Claim Gets Icy Reception in Court appeared first on Felhaber Larson.

Tori Evans worked as an administrative assistant at the Austin, MN, office of Cooperative Response Center, Inc. (CRC), an alarm monitoring service.  As the sole administrative employee, attendance was a critical factor in her job since many of her reception, billing, and clerical responsibilities needed to be performed on a daily basis and other employees would have to be pulled off their jobs when she was absent.

CRC maintained a no-fault absence policy that assigned “points” when an employee was absent without advance notice.  Employees received progressive discipline as they accrued points, up to termination upon the 10^th assessed point within a rolling 12-month period.  Points were not assessed for absences under an approved FMLA leave.

Employees were required to report all intended absences (including those qualifying as FMLA intermittent leave) to the supervisor or manager before the beginning of the shift.  They also had to inform the Human Resources Department if they wished to take a FMLA qualifying leave.

Employee is Out…and Out…and Out…

Evans was approved for an intermittent FMLA leave in early 2016 for mouth sores and related symptoms. In June 2016, she was approved for another FMLA leave due to an autoimmune disorder.  Her medical certification for this leave stated that she would need to miss up to four hours of work once or twice a month for medical appointments, and would likely have one or two absences a month for flare-ups.

In approving the leave, CRC informed Evans that absences beyond the FMLA-approved frequency would count under the attendance point system and reminded her that the policy regarding reported intended absences still applied to her intermittent leave days.

Thereafter, Evans used more than 30 FMLA days and incurred an additional 11 unplanned absences that counted as points under the attendance policy.  These points were assessed for:

• Absences for FMLA conditions that exceeded the projections in the FMLA certification;
• Absences for non-FMLA reasons; and
• Failing to report her absences in accordance with the company policy.

Her final two points were assessed for (1) an absence because she lost her voice, and (2) an early departure for a fever, neither of which were covered under the FMLA certification.  Accordingly, Evans was terminated on March 27, 2017.

You Should Have Been There

Evans sued CRC in federal court under federal and state law discrimination laws alleging that she was fired due to her disability and that CRC failed to accommodate her.  She also claimed that CRC interfered with her FMLA rights by assigning her attendance points for FMLA-related absences.  CRC filed for summary judgement and Minnesota Federal District Court Judge Ann Montgomery dismissed the case on all counts.

Judge Montgomery first addressed the disability discrimination claim, noting that Evans had to demonstrate that she was a qualified disabled person by establishing that she could perform the job in question.  The judge explained, however, that the Eighth Circuit Court of Appeals (which covers Minnesota) has found repeatedly that “regular and reliable attendance is a necessary element of most jobs.” In light of the impact caused by Evans’ excessive and unpredictable absences, Judge Montgomery dismissed the claim, because Evans was unable to perform the essential function of regular and reliable attendance.

Since Evans was not a qualified disabled person, Judge Montgomery also dismissed the failure to accommodate claim, because accommodation is only required for someone meeting the qualified disabled person standard.  In addition, the only accommodation that Evans sought was the ability to use more FMLA time than the amount for which she had been approved. However, the request to be allowed to miss more work would not have facilitated (and actually was antithetical to) Evans’ ability to perform the essential function of maintaining regular and reliable attendance.  Therefore, the requested accommodation was not reasonable.

You Should Have Said Something

Evans’ FMLA claim centered upon her contention that her last two absences should have alerted the employer to the fact that she required more FMLA leave.  Judge Montgomery pointed to two critical FMLA regulations that applied: the first explicitly permits employers to require adherence to their normal call-in and notice procedures; the second states that an employee seeking FMLA treatment for an absence must either reference the qualifying condition or identify FMLA as the reason for the leave – merely “[c]alling in sick without providing more information will not be considered sufficient notice to trigger an employer’s obligations under the Act.”

The Judge found that the two absences in question did not relate to the reasons for her first FMLA leave (mouth sores) or the second leave (autoimmune disorder).  As such, it was proper for CRC to consider them as non-FMLA absences.  In the alternative, if Evans truly believed that the absences triggered CRC’s FMLA obligations, she failed to comply with company policy requiring employees to tell HR that they needed a FMLA leave.  Either way, it was proper for CRC to consider these absences as non-FMLA protected and therefore, subject to attendance points and their natural consequences.

Finally, Evans argued that she should not have been limited to just the number of absences cited in the certification.  Judge Montgomery noted that the FMLA regulations do provide that when the circumstances of a leave change, such as the duration or frequency of absences, employers should seek recertification of the leave.  However, the record reflected that CRC did seek recertification and Evans’ doctor reaffirmed the original number of likely absences set forth in the certification.  Thus, Evans’ contention in this regard had no merit.

Bottom Line

This is a welcome decision that reminds us that reasonable attendance policies and call-in procedures will often be given deference by the courts.

Note – Shortly after this article was posted, the 8th Circuit Court of Appeals handed down a decision in Higgins v. Union Pacific Railroad declaring that attendance is an essential function of the job of locomotive engineer.  This is just further affirmation of the Court’s inclination to rule this way in regard to most jobs.

The post Minnesota Judge Says Good Attendance Is An Essential Job Function appeared first on Felhaber Larson.

Sharonia Barton worked as a dental hygienist at Unity Health System’s St. Mary’s campus in Rochester, New York. Upon returning from leave after carpal tunnel surgery, she had a new officer manager (Laurel Tschetter) and a new co-worker (Patrizia Farsace).

Barton alleged that Farsace made several offensive comments to her regarding her race (African American).  She complained to Tschetter who promised to “handle it” but according to Barton, nothing was actually done, prompting her to make additional complaints.

I Need to Leave

Sometime later, Tschetter conducted Barton’s performance evaluation which was generally positive but noted Barton’s tendency toward defensiveness, inflexibility and critical comments about the physicians at the clinic.  Barton was upset over what she perceived as false criticisms in the review.  She therefore applied for and received a medical leave of absence for work-related stress.

While on leave, Barton met with a Human Resources representative regarding her concerns about discrimination. She then met with Unity’s Senior Director for Practice Management, who suggested that they meet together with Tschetter to help the two of them get their working relationship back on track. However, that meeting never took place because Barton extended her medical leave of absence.

Because of the uncertainty of Barton’s return, the clinic did not replace her and tried to meet scheduling and patient care needs with existing staff.  However, when they were overwhelmed with an additional 300 patients after another area clinic closed, they hired a new full time hygienist to fill Barton’s position.  Barton was informed by letter that she would remain on a leave and should stay in contact with Unity so they could work collaboratively on her return to active duty.

I’ll Come Back to Work But Not With Them

Approximately nine months after beginning her leave, Barton submitted a note from her doctor indicating that she was prepared to return to work.  However, the note suggested that Barton not be returned to work with Farsace or be supervised by Tschetter.  Unity looked for open positions at their other clinic locations but found nothing.  They did, however, offer Barton the opportunity to take a vacant dental medical secretary position.  This would get Barton back to active duty without having to work with Farsace or Tschetter, and would give Barton the opportunity to consider and bid on other openings at Unity whenever they arose.

Barton declined and insisted that Tschetter and Farsace be terminated or relocated so that she could return to her original job.  Unity refused this request and with no other openings to offer Barton, they terminated her employment.  She then sued for race and disability discrimination under federal and state law. The lower court dismissed the case and Barton appealed to the Second Circuit Court of Appeals.

The Second Circuit affirmed the lower court ruling, dispensing first with the race discrimination claim by noting that while Barton tried to show that Tschetter was biased against her, there was no evidence that Tschetter was actually involved in the termination decision.

On the disability discrimination issue, the appeals court explained that Barton could not establish that a reasonable accommodation existed that would have allowed her to perform the essential functions of her job. For one thing, Barton only was willing to accept one form of accommodation – transfer to a dental hygienist position at another Unity location so she did not have to work with Tschetter and Farsace – yet was unable to prove that any such vacancies existed when she was ready to return.

You Could Have Reassigned Me Even Though I Wasn’t Working

Barton argued that two vacancies did come up while she was on leave and she could have been transferred to one of them.  The court disagreed, explaining that Barton never updated Unity on her condition and therefore, the employer could not have known when Barton could return or whether she might have restrictions that would require accommodation.  As such, the accommodation that Barton sought in this regard was not reasonable.

The court noted that Unity at all times was prepared to fulfill their obligation to engage in an interactive process but Barton offered no opportunity for further review because she failed to remain in contact during her leave.  Then, when she did seek to return, Unity did the best they could by reviewing vacancies and offering Barton a good job and the chance to review and seek other vacancies as they occurred. The court concluded, “In the circumstances, it appears that Unity made a good faith effort to accommodate Barton. The law requires no more.”

Bottom Line

This case is a textbook example of how employers should approach the interactive process with an employee on a medical leave. The employer encouraged Barton to stay in touch even after they filled her job and then worked diligently with her to find her a suitable job.  When there was no opening equivalent to her former position, they did the next best thing by offering a job that would get her back to work and back into the work environment.  The fact that Barton demanded a different accommodation which was not feasible did not change the fact that Unity made a good faith effort to accommodate Barton.

Interestingly, the appeals court did not comment on Barton’s insistence that she be returned to her original job and that her supervisor and co-worker be reassigned.  It can only be assumed that they found that request so unreasonable as to be unworthy of attention.  We agree.

The post Employer’s Accommodation Duty: Stay in Touch and Do the Right Thing appeared first on Felhaber Larson.

Cindy Tinsley, a long-time employee of Caterpillar Financial Services, worked her way up to Business System Analyst III reporting to Team Leader Amy Clendenon and manager Paul Kaikaris. In 2015 she received a negative performance evaluation and a Performance Improvement Plan from Kaikaris and Clendenon. Tinsley claimed that this was in retaliation for her having objected to Kaikaris allowing her co-workers to bounce stress balls off the ground in the work area.  She contended that the noise was a trigger for her post-traumatic stress disorder (“PTSD”).

I Can Work, I Just Can’t Work For Him

Thereafter, Tinsley wrote the Human Resources Department complaining about the stress of her position, her midyear review, and the hostile work environment that Kaikaris created (with specific reference to the ball-bouncing).  She said that she could continue performing her job responsibilities but only if she was transferred to a different manager.  Otherwise she would need a medical leave of absence.  While the company granted her a medical leave (eighteen weeks in total) they consistently denied her request for a new manager, which ultimately led to Tinsley’s decision to resign.

Tinsley filed a lawsuit in federal court claiming that the company discriminated against her in violation of the Americans with Disabilities Act (“ADA”) by failing to accommodate her request for a new manager.  She further alleged that the failure to grant this request amounted to a constructive termination.   After the lower court dismissed the case, Tinsley appealed to the Sixth Circuit.

The Appeals Court explained that to be disabled under the ADA, an individual must have a medical condition that substantially impairs one or more major life activities.  Tinsley’s only claimed impairment was in regard to her ability to work.  In such cases, the ADA requires a showing that the employee is restricted from performing a broad range or class of jobs, not just one job in particular.

The Court of Appeals concluded that Tinsley had not demonstrated that she was substantially impaired in her ability to perform a broad range of jobs and therefore, she was not disabled under the law.  To the contrary, all of her problems seemed to stem from Kaikaris’ management style and not the elements of the actual job itself. The Appeals Court noted:

– Tinsley explicitly told Human Resources that she could remain in her job if she had a different manager;

– Tinsley’s primary complaint about the job was that Kaikaris allowed her co-workers to bounce the stress balls, which impacted her PTSD;

– Tinsley’s doctor said she could return to work “at full capacity” but suggested that she be allowed to switch managers.

Is “Stressful Work” a Broad Range of Jobs?

Tinsley argued that her PTSD did substantially limit her from performing a broad range of jobs, namely those that produce high levels of stress. The Appeals Court was not persuaded, responding that a “class of jobs” refers to the nature of the work itself (e.g. truck driving) or to the job-related requirements (e.g. lifting, standing, etc.), and not to the conditions or byproducts of the work.

Moreover, the Court hearkened back to Tinsley’s insistence that she could perform the job but for the fact that Kaikaris was overseeing it.  As such, she obviously could handle the stress of her job and probably other jobs as well; she just could not do so where her stress level was dictated by the fact that Kaikaris was her manager.

Accordingly, Tinsley’s limitations related only to a unique aspect of one job, namely the identity of her manager. This does not demonstrate the inability to work in a broad range or class of jobs.  Therefore, Tinsley was not disabled under the ADA and could not pursue her claim.

Bottom Line

This case provides a good framework for analyzing disability-related demands for transfers to new supervisors.  While it is conceivable that a certain managerial style might be common enough to contribute to a finding of impairment in a broad range of jobs, it seems pretty clear that the inability to work for a one specific individual is not likely to be considered sufficient to articulate a covered disability under the ADA.

The post Hating Your Supervisor is Not a Disability appeared first on Felhaber Larson.

Heather Trautman worked for Time Warner Cable in Texas on an 8:00 am to 5:00 pm schedule.  She began experiencing anxiety and panic attacks while driving to and from work in heavy traffic.  She therefore asked if she could revise her schedule so that she could work at the office from 7:00 am to 2:00 pm, then finish her remaining work hours at home.  The company declined the request, explaining that her job required her to be on site, especially during the department’s busy time in the early afternoon hours.

Employee Seeks Alternative Route

Trautman then suggested that she could come in from 7:00 am 11:00 am, then head home and be available to work through the busy afternoon rush.  Time Warner again said no but did offer that she could move her schedule up by an hour so that she still worked a full day but could leave by 4:00 pm.

Trautman did not give this a try.  Instead, she just kept submitting doctor’s notes and FMLA requests affirming her difficulties with her daily commute but never really addressing whether she could or could not perform her actual job responsibilities. At the same time, she continued racking up attendance infractions for late arrivals and early departures, and she was eventually terminated for excessive absenteeism.

Trautman sued in federal court on a variety of claims, the most interesting being an alleged failure to accommodate in violation of the Americans with Disabilities Act (ADA).  The lower court dismissed the claim and Trautman appealed to the Court of Appeals for the Fifth Circuit.

Accommodation Request Hits a Detour

One of the big questions presented in this case was whether the ability to commute effectively is a work function for which accommodation might be necessary.  The Appeals Court dodged that issue, however, and decided instead that even if accommodation was required, Trautman failed to show that her employer failed to offer one.  They explained that Time Warner met their duty to engage in an interactive process by offering the proposed one-hour change in her work schedule.

Unfortunately, Trautman never took them up on that offer, nor did she investigate public transportation or ride-sharing options.  She also never took any initiative to alter her work environment to reduce her anxiety, such as more frequent breaks or a different location where she would not be able to see the busy traffic through her office window.  She simply chose to keep leaving early and incurring attendance infractions.  The Court therefore affirmed the dismissal with the conclusion that the ADA does not permit “an employee to leave work early and then sue her employer for being unreasonable.”

Bottom Line

This case aligns with the majority of other federal court decisions on this issue.  However, the Equal Employment Opportunity Commission (EEOC) believes that accommodation is in fact required, and the Eighth Circuit Court of Appeals in which Minnesota sits has not yet ruled one way or the other.

Therefore, Minnesota employers responding to a request for commuting accommodations should bear in mind that the EEOC will likely rule against you if you decline the request, and you do not know how well your refusal will be received by the Eighth Circuit.  Until there is more certainty, Minnesota employers should carefully consider engaging in the interactive process regarding commuting issues and giving serious thought to possible accommodations

While the request in the Trautman case may have been a bit extreme, modified working hours, purchasing bus passes and other similar considerations might be useful roads to travel in preserving an employee’s ability to work when commuting issues and disabilities intersect.

The post Court Refuses to Order Employer to Accommodate Commuting Anxiety appeared first on Felhaber Larson.

Andrea Sessoms took a bereavement leave from her job at the University of Pennsylvania (UPenn) when her mother died after a long illness. She alleged that when she returned to work, her supervisor, Maria Colavita, began criticizing her in front of other staff, raising her voice and rolling her eyes when talking to Sessoms, and demonstrating a lack of regard for Sessoms’ personal circumstances.

Accommodation Requested

Sessoms began experiencing memory loss and high blood pressure, which she though contributed to increasing errors at work. Sessoms claimed that after telling her supervisor about this, Colavita said she did not care about Sessoms’ medical issues. Sessoms reported this remark to her department director and a human resources employee, but she found their responses unsympathetic and unhelpful.

After Colavita directed her to sign a “coaching record” regarding unsatisfactory job performance, Sessoms became upset and went out on a medical leave of absence under the Family and Medical Leave Act (FMLA). In preparing for her return to work, Sessoms requested the following accommodations:

• A part-time schedule that would gradually allow her to build up to full time hours;
• A transfer to a lower stress department and office; and
• Assignment to a different supervisor.

Request Granted (Sort Of)

UPenn agreed to the part time schedule and offered other options as well, but they denied the request for a transfer and a different supervisor. Sessoms apparently balked at any return-to-work arrangement that required her to work for Colavita, leading UPenn to decide that their only option was to terminate her employment. Sessoms thereupon sued UPenn for disability discrimination/failure to accommodate under the Americans with Disabilities Act (“ADA”).

After the lower court dismissed the case, Sessoms appealed to the Third Circuit Court of Appeals, who affirmed the dismissal. First, the appeals court explained that the employer had acted in good faith by offering various accommodations, including the part time schedule that Sessoms requested. They then noted that Sessoms rejected these offers, seeking instead a transfer to a different department and supervisor.

The court concluded that Sessoms did not meet her burden of showing “the existence of an equivalent-level, vacant position for which the employee could qualify.” Moreover, even if such a position existed, the court explained that “reasonable accommodation does not entitle an employee to a supervisor ideally suited to their needs.” Since the employer offered appropriate accommodations that would have allowed Sessoms to return to work, the court ruled that UPenn’s denial of the preferred accommodation did not violate the ADA.

Bottom Line

The ADA mandates that disabled employees be accommodated (absent an undue burden) but it does not say that employees get to select the accommodation they want.  Sometimes the employee’s desired accommodation will be too costly or administratively burdensome, or simply not as effective as other alternatives.  For example, an employee with a 20lb lifting restriction may ask to be relieved from lifting 40lb packages.  The employer can decide, however, that it is more workable to revise their packaging so that they do not exceed 20lbs, thereby meeting the restriction.

Of course, if the employee’s desired accommodation poses no real burden for the employer, that option should be considered since it offers the greatest likelihood for employee satisfaction and conflict-free resolution of the issue.  Ultimately, however, it is the employer’s call as to which accommodation is selected.  As long as that selection is reasonable, the ADA’s requirement is satisfied.

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Jerry Lee Faidley began working at UPS as a package car driver in 1987, making residential and business deliveries.  After suffering various injuries over the years, Faidley had hip replacement surgery in 2011.  Though he returned to work the following April with no restrictions, he soon began experiencing pain in his back.  Faidley returned to his physician, who issued a certificate limiting him to working no more than 8-hour shifts.

Eight Hours is Not Enough

Faidley asked that he be able to continue in his position but be assigned no more than 8 or 8.5 hours per shift.  He wrote:

I really believe that UPS should put [m]e back to working the delivery driver position i have held for 25 years. During the time that i held that position i rarely had to work overtime. In fact, i regularly earned the production bonus because i completed my stops in eight hours or less. There are around 100 drivers at the Des Moines center and i am sure that any additional work could be managed by other drivers who want to work overtime. I would appreciate it if the company would reconsider its position that all drivers have to work overtime.

UPS denied this request on the grounds that the essential functions of this position including being able to work 9.5-hour days and sometimes even more.  They suggested that he bid on other positions that could be performed within 8 hours, such as carwasher or porter.  They also talked about the “feeder driver” job, which required working more than 8 hours a day but would not require as much walking, lifting or climbing in and out of trucks.  Since all of these jobs were subject to the seniority provisions of the collective bargaining agreement, Faidley would have to follow and abide by the contractual job bidding process.

Unfortunately, Faidley was unable to obtain reassignment to any of the alternative full-time jobs either because there were no openings or because more senior employees also bid on and ultimately received those positions.  UPS did offer Faidley a part-time position but since accepting the offer would affect his union seniority rights, he declined and chose to remain on medical leave.

In early 2013, Faidley was able to return to a full time loader/preloader position but experienced so much pain that he went back to his doctor, this time receiving permanent restrictions that substantially limited his ability to perform available full time positions at UPS.  Faidley elected to retire from UPS in November, 2013.

Overtime is Essential

Faidley’s legal claims followed a somewhat complicated path, including union grievances, a first lawsuit alleging state law violations and then a second lawsuit under the Americans with Disabilities Act (ADA).  The claims were subsequently consolidated in federal district court in Iowa, which then granted summary judgment (early dismissal) to UPS.  Faidley appealed, but after receiving a partial reversal from a three-judge panel of the Eighth Circuit, the entire Eighth Circuit upheld the district court and dismissed the case in its entirety.

In dismissing the case, the Appeals Court first affirmed that UPS did not violate the ADA by refusing Faidley’s request for an 8-hour work day as a package car driver. Being able to work more than eight hours a day was an “essential function” of the position since workloads are unpredictable (especially during holiday season) and there are weather and traffic issues that can lengthen the working day almost without notice.   If Faidley were to reach his 8-hour limit while still on the road, another driver would have to be dispatched to meet him or timely deliveries would not be made.

The court further concluded that the denial of the feeder position also was permissible under the ADA because again, working 9.5 hours a day was an essential function of that job. They explained that “[t]he ADA does not require an employer to permit an employee to perform a job function that the employee’s physician has forbidden.” While the company did discuss the possibility of reassignment to the feeder job because it was less strenuous, this subjective opinion was insufficient to overcome the doctor’s unambiguous hours-related restriction.  UPS was under no obligation to explore an accommodation that was beyond what the employee’s doctor said he could do.

Bottom Line

It is not uncommon for employees to receive medical certificates restricting them from working more than 8 hours in a day.  If an employer contends that accommodation is not feasible because additional hours are or will be necessary, mere speculation will not be sufficient.  As UPS did, the employer must bring forward evidence based on past performance (or in some cases a verifiable expectation of increased need in the immediate future due to business changes, seasonal patterns, etc.) in order to establish that accommodation is not reasonable or constitutes an undue hardship.

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While this is a chronic (some might say annual) affliction that produces varying degrees of mental anguish, it is not a recognized medical condition that would be covered under the Americans with Disabilities Act (ADA).  The same is true for that odd condition known as “Packer Mania.”

What is Seasonal Affective Disorder?

This is also the time of year when we see increased manifestation of  “Seasonal Affective Disorder.” (SAD), a recurring form of depression that crops up at a certain time of year for those who are afflicted.  While some people doubt the legitimacy of this condition, it is generally recognized as a valid diagnosis.

SAD occurs mostly in northern regions where shorter days and limited sunlight trigger the affliction.  Symptoms typically include those most often associated with depression, such as low energy, sleep disruption, appetite changes, difficulty concentrating and feelings of hopelessness or despair.  It is estimated that 5% of the population of the United States suffers from SAD, the vast majority of them being female.

Because SAD appears to be caused by the lack of exposure to sunlight (and corresponding decreases in serotonin), it is usually treated by increasing the sufferer’s proximity to natural sunlight and/or exposure to special lamps that simulate the sun’s beneficial effects.

Do I Have to Accommodate?

As with any assertion of medical impairment, an employee claiming to suffer from SAD may (and should) be required to submit verification by the employee’s health care provider.  If the provider verifies that the condition exists and that it substantially impairs one or more major life activities (e.g. sleeping, thinking, concentrating), the employer may be covered under the ADA.  In that event, the employer will be required to undertake an interactive analysis to consider whether and to what extent the employee can be accommodated to permit performance of the essential functions of the job.

At least one federal appeals court has ruled that SAD is a recognized disability under the ADA.  In that case, the Seventh Circuit Court of Appeals upheld a jury verdict and award of monetary damages in favor of a teacher who claimed that her school unlawfully refused her request to be moved from a windowless classroom as an accommodation.

Accommodation of employees with SAD is often relatively straightforward.  Employers should evaluate whether they can move the affected employee to a work location with more windows or other exposure to natural light.  More frequent breaks allowing the employee to step outside can also be effective, as might a change in schedule allowing the employee to wake up in the daylight and get to work later.  Employers also have purchased specialized lamps or allowed the employee to bring in such a lamp from home.

Bottom Line

Let’s face it – many of us feel a twinge of apprehension as the first snowflakes signal the arrival of yet another long Minnesota winter.  However, those with a bona fide diagnosis of SAD cannot just be dismissed as having the “winter blues.”  Instead, they are entitled to consideration for reasonable accommodation just like any other disabled employee.

They might also be entitled to rights and protections under the Family and Medical Leave Act (FMLA) if they are certified as having a serious medical condition.

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Employees seeking protection under the ADA must prove, of course, that they have a disability, which means that they have a medical impairment that substantially limits one or more major life activities. The 2008 amendments to the law expanded the list of major life activities to include cognitive skills (e.g. thinking, concentrating, learning) as well as major bodily functions (such as brain, respiratory, circulatory) such that virtually every medical condition likely would impact on a major life activity.

Nevertheless, in a recent federal Tenth Circuit Court of Appeals decision, the court sided with the employer who accepted the diagnosis of depression but challenged whether the impact of the condition impaired any of the employee’s major life activities.

No Question About the Diagnosis

Long-time employee Steven Russell was transferred to a new position but struggled in the job due to the increased amount of math skills that were required. As the stress from the job began to build, Russell suffered from what he deemed a nervous breakdown, causing him to take a leave of absence and begin treating with a psychiatrist.

Russell’s psychiatrist diagnosed him with Major Depressive Disorder and Panic Disorder. He wrote the company to state that work-related stress “played a role” in Russell’s disability, with much of the stress relating to his difficulty with the more complex math skills that the new position required.  The psychiatrist did not identify any particular restrictions imposed upon Russell, however, and recommended only that Russell return to work in a different job.

The company’s medical director sought clarification relating to the specific nature of Russell’s impairment and about any activities that might be impacted. After speaking with Russell’s psychiatrist, the medical director concluded that Russell’s inability to handle the math involved with his job was not caused by any particular mental or physical impairment.  He just was not good enough at math.  As a result, Russell had no medical restrictions preventing him from performing his assigned job duties and no need for accommodation so he was told he should return to work.

Russell resisted because he did not want to return to a job that stressed him out so much.  The company gave him several months to secure another position, but when he was unsuccessful in doing so, he was terminated.  Russell then sued for disability discrimination claiming that he was disabled and could have been accommodated by being placed into a different job.

Big Question About the Disability

Russell asserted that he met the definition of “disabled” under the ADA because his medical condition limited him in the activities of sleeping, breathing, concentrating and working.  The employer did not disagree that he was limited but argued that the test is whether he was “substantially” limited in those activities.  Since nothing in the doctor’s letters to the company or in his conversations with the medical director indicated substantial limitations, the company urged that Russell simply was not covered by the law.

The lower court agreed with the company and tossed the case on an early dismissal motion. Russell appealed to the Tenth Circuit Court of Appeals but to no avail. The Appeals Court first noted that Russell’s only proof of substantial impairment in any major life activities was his own sworn statement to that effect.  They correctly observed that a litigant’s statement is merely a declaration, but it is not proof.  Instead, Russell needed some form of medical testimony explaining how his medical condition created substantial limitations.

Russell then pointed to notes from his doctors verifying that he had difficulty sleeping.  Again, the court considered Russell’s “proof” inadequate since those notes merely attested to the fact that certain medications he had been taking caused sleeplessness so he was told to stop taking those medications. The Appeals Court concluded that this did not prove that the actual medical condition impacted his ability to sleep.

In the absence of any real evidence verifying a major life activity was substantially disrupted by his medical condition, Russell could not prove that he was disabled under the ADSA and the Tenth Circuit therefore affirmed the lower court’s dismissal of the claim.

Bottom Line

This case is the first glimmer that the question of whether an employee is disabled under the ADA is not a slam dunk just because the employee suffers from a medical condition.  There still needs to be proof that the condition substantially impairs a major life activity.

Given the lengthy list of what constitutes a major life activity under the ADA, the courts likely will continue routinely finding that employees with legitimate medical diagnoses are in fact disabled under the law.  The real battles will therefore still be fought over whether and to what extent reasonable accommodation can be provided.

Still, this case offers a bit of a road map for employers to argue the inapplicability of the ADA if the facts line up just right.

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Does the ADA require the employer to rescind the termination and give the employee another chance?  The courts say no, as we saw last week in a case from a federal appeals court.

You Can’t Fire Me

Janna DeWitt worked for Southwestern Bell as a customer service representative. When she got the job in 1997, she told the company that she had Type I diabetes and needed to monitor her blood sugar levels regularly.  The company had no problem allowing her to take breaks and have snacks in order to raise her blood sugar levels.  They also granted her multiple medical leaves associated with her health condition.

The main part of DeWitt’s job was to answer calls from customers regarding their telephone service. In 2010, she mistakenly allowed a customer’s service to continue despite the fact that the customer had already called to cancel.  This apparently is a substantial violation of company policies,  and DeWitt received a one-day disciplinary suspension along with a Last Chance Agreement that promised termination if she committed another such infraction.

Just two months later, DeWitt was charged with hanging up on two different customers, again a serious infraction.  DeWitt claimed she did not remember the incidents because of low blood sugar  episodes when those calls came in.  Nevertheless, she was fired, prompting her to sue for violation of the Americans with Disabilities Act (ADA).  Among her claims, DeWitt asserted that the company failed to accommodate her by excusing the dropped calls that resulted from her low blood sugar episodes.

Oh Yes I Can

After the lower court dismissed the claim, DeWitt appealed to the Tenth Circuit Court of Appeals.  However, the Tenth Circuit upheld the dismissal on the grounds that this sort of “retroactive leniency” is not a reasonable accommodation required under the ADA.   Specifically, they explained that the law “does not require employers to reasonably accommodate an employee’s disability by overlooking past misconduct—irrespective of whether the misconduct resulted from the employee’s disability.”

The Circuit Court based their decision in part upon the Equal Employment Opportunity Commission’s (EEOC) Enforcement Guidance on Reasonable Accommodation. The Guidance explains that the ADA is “always prospective” and that “an employer never has to excuse a violation of a uniformly applied conduct rule that is job-related and consistent with business necessity.”

In addition, they observed that other Circuit Courts of Appeal had ruled similarly, including the Eighth Circuit (in which Minnesota sits) who declared that requests like DeWitt’s are not disability accommodations but rather, “a second chance to better control her treatable medical condition. That is not a cause of action under the ADA.”

Therefore, even though the employer knew of the Dewitt’s underlying disability, the fact that she never requested an accommodation that might assist her in not dropping calls meant that the termination for such misconduct was appropriate.

Bottom Line

This is a great reminder for employers who often must respond to employees trying to save their jobs at the last second by blaming their performance deficiencies on medical conditions.

Of course, this is not a free pass for employers to ignore medical issues affecting an employee’s job performance.  If an employee receiving disciplinary action short of termination divulges the existence of a medical condition, the employer must act prospectively by engaging in the interactive process to determine whether and to what extent an accommodation might be required going forward.

Even if the employee has not specifically asked for an accommodation at this point, the employer should still inquire about a possible need for accommodation so that they can not be cited later for ignoring the disability. However, if the employee waits until the termination meeting to request an accommodation for the cause of their poor performance or misconduct, the termination may proceed.

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While seeking to explain the rights of workers with mental health conditions under the Americans with Disabilities Act (ADA), this document offers some unsettling glimpses into the EEOC’s overly expansive view of an employer’s obligation to make workplace accommodations for employees’ medical conditions.

The document is written in a question-and-answer format featuring the following questions:

Is my employer allowed to fire me because I have a mental health condition?  

Obviously, the answer is “no”  but the EEOC takes it a step further by reminding us not to rely on “myths and stereotypes” in deciding to fire someone. Instead, there must be “objective evidence” that the employee cannot do the job or poses a health or safety risk, even with reasonable accommodation.  The amount of evidence required is unclear but be forewarned – the EEOC typically views this sort of evidence very skeptically, especially where it is anecdotal or not documented.

Am I allowed to keep my condition private?

The document states that while medical conditions are generally confidential, employers may inquire about those conditions in four different circumstances:

(1) when an individual requests an accommodation;

(2) for pre-placement medical exams under the conditions established by the ADA;

(3) for purposes of affirmative action plans targeting persons with disabilities; and

(4) when there is “objective evidence” that the employee is unable perform the job or poses a safety risk in the workplace because of the medical condition.

What if my mental health condition could affect my job performance?

This is where it gets interesting.  Instead of citing language from the ADA or its regulations, EEOC dumbs it down to say only that there might be a right to accommodation if it “would help you do your job.” A reasonable accommodation is then described merely as “some type of change in the way things are normally done at work.”

Curiously, there is no acknowledgment that the ADA requires accommodation only if it permits the individual to perform the essential functions of the job.  Hopefully, this is attributable to mere oversight or overly aggressive editing, and is not a signal that the essential function requirement no longer applies.   Otherwise, consider the case of an employee who is supposed to produce 50 units per hour but can only produce 20 due to a mental health condition.  If there was some sort of change that helped the employee produce 30 units per hour, the absence of an essential functions analysis would mean that this change would be considered a reasonable accommodation to which the employee is entitled because it would “help him do his job.”  Surely this is not what the EEOC intended.

It also must be noted that this portion of the resource document fails to mention that an accommodation need not be offered if it poses an undue hardship.   This seems to minimalize this critical  defense to an accommodation demand and offers an optimistic but legally unsupported assessment of an employee’s right to obtain a specific accommodation.  Fortunately, the concept of undue hardship is addressed later in the document, although not specifically by name.  In fact, the phrase “undue hardship” never appears anywhere in the entire document.

How can I get a reasonable accommodation?

This is pretty straightforward – we are told that an employee must ask for an accommodation in order to get one. In fact, the EEOC actually does employers a favor here by stating “[b]ecause an employer does not have to excuse poor job performance, even if it was caused by a medical condition or the side effects of medication, it is generally better to get a reasonable accommodation before any problems occur or become worse.”  This is helpful since employees often believe that they may not be held accountable for poor performance if a medical condition is the underlying cause.

What will happen after I ask for a reasonable accommodation?

This is another helpful inquiry since this is where the EEOC verifies the employer’s right to seek written verification of the medical condition and the need for an accommodation. Interestingly, the EEOC then provides a link to another document entitled The Mental Health Provider’s Role in a Client’s Request for a Reasonable Accommodation at Work, which explains to health care professionals the legal basis for the employee’s visit and what information employer’s might require to determine whether and to what extent they can accommodate the employee.  The EEOC advises employees to give this document to their health care provider when they seek an accommodation.

This is also where the EEOC finally gets around to the possibility that an employer need not grant the accommodation if it poses an undue hardship.  Even then, they refuse to use the term, stating instead that an accommodation backed by sufficient medical documentation must be granted in the absence of “significant difficulty or expense.”  In other words, an undue hardship.

What if there’s no way I can do my regular job, even with an accommodation?

Finally, the EEOC addresses the possibility that a job accommodation may not be possible if the employee still can not perform the essential functions of the job.  They immediately shift gears to say that the employee may then be entitled to a leave of absence if the leave will “help you get to a point where you can perform those functions.” They offer no guidance, however, on how long such a leave might last or what progress must be made toward return to work in order to show that continuing the leave is reasonable.

The final two questions address what to do if the employee feels harassed or discriminated against, and the answers mainly advise the employee to follow the company’s reporting procedures and perhaps contact the EEOC.   No surprises there.

Bottom Line

Remember that this is only an informal guidance and does not have the force of law.  Nevertheless, it offers very important clues about how the EEOC will approach a charge of unlawful failure to offer a reasonable accommodation and it is not a pretty picture.

When an employee seeks an accommodation, employers should carefully and meaningfully engage in the interactive process to seek possible accommodations.  Be creative and inclusive, and do not just speculate on the cost or difficulty of an accommodation.  If you think that an accommodation may be too expensive, cost it out in very precise terms and document the analysis. If a proposed change appears too difficult, examine the reasons why and document those as well.

The EEOC seems ready to pick a fight over accommodation decisions involving mental health conditions.  They are more likely to do so with an employer who has not done their homework.   Don’t be that employer.

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Whitney Stephenson was a senior pharmaceutical representative for Pfizer, Inc.  Actually, she was a world class pharmaceutical rep whose achievements garnered her a spot in the company’s “Hall of Fame,” and the designation of “Pfizer  Master.”

Company Sets Up Roadblock 

Stephenson’s job required that she drive around the region to give presentations to health care providers and encourage them to prescribe Pfizer-made drugs to their patients.  Unfortunately, she developed an eye condition that impaired her ability to drive.  She could still make the presentations and work effectively with her customers but she was no longer able to drive to her assignments.

Stephenson requested an accommodation in the form of an assigned driver.  After all, she wasn’t hired to drive – she was hired to make presentations and she could still do so quite effectively once she arrived at her location.  The company declined, however, claiming that driving a car was an essential function of her job and that hiring a driver just for her was “inherently unreasonable.”  They expanded on this in court, explaining that they would face “significant increased risk and liability related to vehicular accidents, workers compensation and misappropriation of and/or lost drug samples.”

Pfizer did offer to accommodate Stephenson by giving her the chance to transfer to different positions within the company that did not require her to travel.  Stephenson rejected that opportunity, however, and sued the company for failing to accommodate her as required under the Americans with Disabilities Act (ADA).

Employee Gears Up For Litigation

The key issue was whether driving was an essential function of the job.  If so, the company had no legal to duty to accommodate her.  On the other hand, if driving was not an essential function, the company would have to come up with a reasonable accommodation that would permit Stephenson to complete the truly essential parts of her job, namely presentations to the doctors and advocacy of Pfizer products.

The lower court dismissed the case but the Fourth Circuit Court of Appeals reversed, noting that the ADA identifies two critical factors for evaluating if a job function is essential:

–  the employer’s judgment of the essential functions; and

–  if a written job description has been prepared before recruitment or interviews of job candidates.

Court Puts Employee in the Driver’s Seat

The Appeals Court zeroed in on the fact that Stephenson’s job description did not list driving as one of her duties, nor did it identify possession of a valid driver’s license as a requirement.  Moreover, five of the seven postings for that job in the past year failed to state that a valid driver’s license was required (the other two did in fact include this requirement).

Overall, the appeals court was not prepared to say for sure whether driving was an essential function of Stephenson’s job or not.  Instead, they reversed the dismissal, steered the case back to the trial court and left it to the jury to decide which path this case should take.

Bottom Line

The turning point in this case obviously was the disconnect between the company’s stated reason for denying the accommodation and the lack of documentation to back it up.  While this one factor may not be the sole determinant in all cases, it certainly makes good sense to bolster the potential for using the job description as evidence of a job’s essential functions.  Any job that requires regular operation of a motor vehicle away from the home office should list “driving” as an essential function in the job description. A valid driver’s license should also be included in the minimum required qualifications.

This case, and others like it, remind us that if an employee is unable to drive and seeks an accommodation, don’t just dismiss the request out of hand.  Like any other accommodation request, give it serious consideration, examine the alternatives and document your reasons for denying the request if in fact that is your decision.  Or, perhaps get an Uber account.

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BNSF Railway maintained a policy preventing anyone with a Body Mass Index (BMI) of 40 or higher from obtaining employment. According to the Centers for Disease Control and Prevention (the CDC), a BMI between 25-30 is considered overweight and over 30 is obese.  BNSF stoutly defended their policy as a legitimate means of screening out applicants likely to develop significant physical problems in the future.

After his conditional job offer, Melvin Morriss (5’10” and 285 pounds) reported for his post-offer medical examination and listed that he had no medical conditions or limitations. When the results of the exam reflected that he had a BMI of 40.9, BNSF withdrew their job offer.

Slim Pickings

Morriss sued under the Americans with Disabilities Act (ADA), claiming alternatively that obesity is a disability and/or that BNSF perceived it as such.  The trial court ruled heavily in favor of the employer and dismissed the case, leading Morriss  to appeal to the 8th Circuit.  Unfortunately for him, the court served up another helping of disappointment in ruling that in the absence of an underlying physiological condition, Morriss’ weight is merely a  physical characteristic that is not considered to be an impairment under the ADA.

Morriss didn’t fare any better is his claim that BNSF regarded him as disabled.  The court explained that nobody – not BNSF, the examining doctor or even Morriss himself – regarded him as having an impairment of any sort at the time of his application.  Instead, he simply was someone with a BMI that was above the threshold of what the employer considered acceptable, and a decision not to hire someone whose unhealthy habits might lead to medical issues in the future does not violate the ADA.

Court Chews Out the EEOC

One particularly tasty tidbit in this case was the 8th Circuit’s rejection of the Equal Employment Opportunity (EEOC) Compliance Manual that takes the position that “obesity alone” could be an ADA-protected impairment.  The court found  no basis in the law for this statement and noted that it contradicted regulations that EEOC had issued earlier.

This is particularly noteworthy since courts typically side with administrative agencies when interpreting the laws that such agencies are authorized to enforce.  In recent years, the EEOC has aggressively sought to expand the scope and application of the laws they oversee (e.g. Title VII, the ADEA and the ADA) so having the court temper their enthusiasm with a serving of reality may help curb EEOC’s appetite in the future.

Bottom Line

Given how much the scope of the ADA seemed to expand after the 2009 amendments, it is comforting to see a court limiting the law’s application in this regard.  It gives us food for thought on how other physical characteristics or unhealthy life choices may be viewed in the future when employees claim that such characteristics or choices are actually protected disabilities.

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In EEOC v. Flambeau, Inc., the employer established a wellness program that required employees enrolling in the employer’s health plan to complete the wellness program’s health risk assessment and a biometric test.  The risk assessment included a questionnaire about the employee’s medical history, diet, mental health, social wellbeing, and job satisfaction.  The biometric test was similar to a physical examination in that it recorded the employee’s height, weight, blood pressure, and required a blood draw.

None of the specific results were given to the company.  Instead, the information gathered was used by the program administrators to identify health risks and medical conditions among the workforce participants.

One of the employees failed to complete the wellness program’s test and therefore was dropped from the medical plan. The employee filed a union grievance, a complaint with the Department of Labor (DOL) and a disability discrimination charge with the Equal Employment Opportunity Commission (EEOC).  The employer and the DOL settled the dispute by agreeing that the employee could be reinstated retroactively to the health insurance plan if he complied with the plan’s testing obligations and paid the required plan premiums.

EEOC Claims Subterfuge

Nevertheless, the EEOC sued the company contending that the program violated the Americans with Disabilities Act (ADA) ban on employer-mandated medical examinations.  The employer countered that the wellness program fell within the ADA’s safe harbor for insurance benefit plans, which allows employers to establish and administer the terms of a benefit plan for purposes of underwriting, classifying, or administering risks, and that the wellness program constituted a term of its benefit plan.

Federal District Court Judge Barbara Crabb concluded that the wellness requirement was a term of the employer’s health plan and that it was intended for the purposes authorized under the ADA’s safe harbor provision. The court was heavily influenced by evidence that the data derived from the wellness program was utilized by consultants to forecast insurance costs, determine whether to purchase stop-loss insurance, and set plan premiums for participants, with differentials for whether the participants was a tobacco user or not.

In particular, Judge Crabb rejected the EEOC’s contention that the plan was a subterfuge for the employer’s desire to illegally collect employee medical information. The judge explained that the ADA does not prohibit the collection of such information and that a benefit plan requirement is not a subterfuge unless it involves a “disability-based distinction” that is used to discriminate against disabled individuals.  In this instance, no such distinction existed since all employees seeking insurance had to supply the wellness program data and there was no evidence that such data was used to make disability-based decisions regarding employees’ benefits.

Bottom Line  

The EEOC has not been as successful as they would have hoped in challenging wellness programs as violations of the ADA. We can expect, however, that they will continue to challenge such plans if they perceive that employees are compelled to divulge medical information that they otherwise would wish to keep confidential.  We may also see EEOC regulations sometime in the future as an alternative method of imposing greater uniformity upon employers.

For more information, please contact Michael McNally at mmcnally@felhaber.com.

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It is well known that the ADA requires employers to consider granting disabled workers reasonable accommodation, including the possibility of “reassignment to a vacant position.” This simple phrase has divided the federal courts on the precise scope of the employer’s obligation.

Some courts have ruled that the obligation to reasonably accommodate requires that a disabled employee be directly placed into an existing vacancy for which they are minimally qualified even if there are more qualified applicants also pursuing that job (the “minimally qualified” standard). Others, including the 8^th Circuit Court of Appeals in which Minnesota sits, require such placement only if the employee is the most qualified person for the position (the “most qualified” standard”).

SENIORITY SYSTEM GETS FIRST CLASS TREATMENT

Regardless of which standard is followed, courts must observe the United States Supreme Court ruling that in the absence special circumstances, a requested accommodation (such as a job transfer) that conflicts with established seniority rules is not “reasonable.”

With this in mind, we turn to Dunderdale v. United Airlines, a 7^th Circuit Court of Appeals (which follows the “minimally qualified” standard) decision addressing the question of what constitutes the type of special circumstances to justify a reassignment as an accommodation notwithstanding the existence of a bona fide seniority system. In that case, United Airlines Ramp Serviceman Michael Dunderdale became disabled and bid into a “Matrix” position, a job that the company specifically reserved for their permanently injured ramp servicemen.

At some point, the Airline changed their policy in accordance with their collective bargaining agreement (“CBA”) to permit any employee to bid into the Matrix job if their seniority permitted. As a result, more senior non-disabled employees began bidding into the job, thereby bumping Dunderdale out of the position.

Dunderdale was then placed on a leave of absence during which he asked United on three different occasions to accommodate his disability by placing him into specifically designated “no-bid” jobs that he believed he could perform despite his medical restrictions. The company declined these requests because there were no openings in those jobs. When Dunderdale’s leave expired and his employment ended, he sued United in federal court claiming a failure to accommodate in violation of the ADA. The trial court ruled in favor of the company and Dunderdale appealed to the 7th Circuit.

Dunderdale claimed that the decision to change the policy reserving Matrix positions for disabled employees represented a failure to accommodate him and that he should have been allowed to remain in that job. He further suggested that United’s decision to change the policy without anyone having ever complained about the job being off limits to nondisabled employees demonstrated that this was indeed a special case.

REASSIGNMENT DEMAND IS GROUNDED

The Appeals Court disagreed, noting first that seniority systems are important and that disrupting them undermines employees’ expectations of consistent and uniform treatment. As such, exceptions should be recognized only when the employer has failed to maintain consistency in the system, such as by changing the system or making exceptions. In those instances, employees already have diminished expectations that the system will be followed and it therefore is appropriate to require an employer to also make an exception for a disabled employee.

In Dunderdale’s case, the court concluded that his “special” circumstances were not all that special. They found no tendency on United’s part to disregard or work around the seniority system. In fact, the decision to open the Matrix positions to all employees was intended to strengthen the system and enhance employee expectations for uniform treatment. That nobody had complained about the job being off limits was immaterial – United had legitimate business reasons for making the change and the Court declined to second-guess them.

Dunderdale then argued that United violated the ADA by not assigning him to one of the no-bid jobs, especially since openings arose in those jobs while he remained out on leave. Again, the Court disagreed, first by noting that when the requests were made, no vacancies existed so there was no job to which he could be assigned.

The Court then explained that even though the no-bid jobs changed hands occasionally, the company was not required to maintain a constant vigil for jobs opening up that might be suitable for Dunderdale. Instead, it was Dunderdale’s obligation to keep abreast of vacancies and make his accommodation request in conjunction with those openings. Since he failed to do so, his claims failed and the dismissal of his lawsuit was upheld.

BOTTOM LINE

Given the clarity of the Supreme Court’s decision favoring seniority systems in accommodation cases, this decision to uphold United’s seniority system is not surprising. However, the conclusion that employees are responsible for requesting openings and that employers need not monitor those openings on a constant basis is a very favorable development.

While this case arose elsewhere and does not technically apply to Minnesota cases, the federal courts often are influenced by their counterparts in other jurisdictions so there is reason for optimism that the federal courts in Minnesota will also choose to follow this rule when evaluating the duty of Minnesota employers to watch for openings suitable for their employees on disability leave.

For more information, please contact Lynn Mueller at lmueller@felhaber.com.

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