Remote Work as a Reasonable Accommodation

Under both the Americans with Disabilities Act and the Minnesota Human Rights Act (“MHRA”), employers have an obligation to provide reasonable accommodations to qualified employees with disabilities, unless doing so would impose an undue hardship. Remote work has long been recognized as a potential reasonable accommodation, particularly where an employee’s essential job functions can be performed from a location other than the employer’s premises.

The question is rarely whether remote work can be an accommodation—it is whether it is reasonable under the circumstances. Factors such as the nature of the job, the employer’s operational needs, and the employee’s specific limitations all play a role. An employee whose disability makes a daily commute painful or medically inadvisable, for example, may be entitled to work remotely—even if the rest of the team is expected to be on-site. The fact that the employee happens to be working from a cabin on Gull Lake rather than a home office in the suburbs does not, by itself, change the analysis.

Minnesota’s New Interactive Process Requirements

Employers in Minnesota should pay particular attention to recent amendments to the MHRA, which now impose more specific obligations around the interactive process. Under the amended statute, when an employee requests an accommodation—or when the employer has reason to know that one may be needed—the employer must engage in a timely, good-faith interactive process to identify an effective accommodation. Although for some managers and supervisors, it feels like it should change the analysis.

The amendments clarify that the interactive process is not optional and is not merely a best practice. It is a legal obligation. An employer that simply denies a remote work request without engaging in the back-and-forth required by the statute risks liability, even if a legitimate business reason for the denial exists. The law expects a dialogue, not a unilateral decision.

This is particularly relevant in the summer remote work context. An employee who says, “I’d like to work from the cabin this summer because my chronic pain flares up with the commute,” has arguably put the employer on notice that an accommodation may be needed. The employer cannot simply say “no” and move on. Instead, it must explore the request, discuss alternatives and genuinely evaluate the request.

Practical Tips for Employers

As the summer months approach and accommodation requests arrive—whether framed casually or formally—employers should keep the following principles in mind.

First, treat any request that references a medical condition or limitation as a potential accommodation request, regardless of how it is worded. Employees are not required to use magic words like “reasonable accommodation” or “ADA” to trigger an employer’s obligations.

Second, engage in the interactive process promptly and in good faith. Ask questions, request supporting medical documentation where appropriate, and explore whether remote work—or some hybrid arrangement—would allow the employee to perform the essential functions of the job.

Third, evaluate the request on its merits. The fact that an employee wants to work from a vacation property does not make the request frivolous. If the employee has a qualifying disability and can perform the essential functions of the job remotely, the location of the remote workspace is generally not the employer’s concern—so long as the employee remains available, productive, and in compliance with any applicable policies regarding data security, responsiveness, and work hours.

Fourth, push back when appropriate. Depending on the circumstances, the employer may have opportunities to collect information about the accommodation request (including medical documentation) and explore the medical necessity of the request. But this must be done carefully so as to not unintentionally create legal risk.

Conclusion

It is beyond question that summer at the cabin is a Minnesota tradition. For some employees, working remotely during the warmer months is a matter of convenience; for others, it is a matter of medical necessity. Employers who fail to distinguish between the two—or who dismiss accommodation requests without engaging in the interactive process now required under the MHRA—expose themselves to legal risk. The best approach is a familiar one: listen, engage, and make individualized assessments grounded in the specific facts of each situation. As always, reach out to our team if you have questions or need advice and counsel relating to these issues.

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Due to the pandemic, ISS’s staff, including Moncrief, were working in the facility on a rotational basis, resulting in Moncrief and other employees working from home four days per week. When ISS required all its staff to return to working at the facility five days per week, Moncrief requested an accommodation to continue working from home two days per week and be allowed frequent breaks while working onsite.

Even though other HSE Managers were allowed to continue working from home, ISS denied Moncrief’s request.  Almost one month after denying Moncrief’s requested accommodation, her supervisor contacted HR recommending that Moncrief be removed and replaced due to performance issues and then ultimately terminated her employment.

The EEOC argues that Moncrief was a qualified individual with a disability, who could perform all essential functions of her position with an accommodation and that ISS’s practices deprived Moncrief of equal employment opportunities due to her disability.  The EEOC seeks back pay, compensation for past and future pecuniary and non-pecuniary losses, and punitive damages.

Bottom Line

While the outcome of this lawsuit remains to be seen, employers should take heed.  ADA-eligible employees may argue that, because they could telework during the pandemic, they should continue to be permitted to telework as a reasonable accommodation.  Employers should be prepared to address what is different, and why continued telework accommodation is not reasonable if they are going to deny such a request.

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The Equal Employment Opportunity Commission (EEOC) recently issued a Guidance document entitled “Use of Codeine, Oxycodone, and Other Opioids: Information for Employees.” While not breaking any new legal ground, the Guidance is a powerful reminder to employers that opioid addiction often constitutes a disability that entitles the individual to the rights and protections of the Americans with Disabilities Act (ADA), including the right to reasonable accommodation.

Legal Background

The ADA considers a person addicted to alcohol or drugs to be disabled and therefore entitled to legal protection if that person:

1. Has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs, or has otherwise been rehabilitated successfully and is no longer engaging in the illegal use of drugs;
2. Is participating in a supervised rehabilitation program and is no longer engaging in such use; or
3. Is erroneously regarded as engaging in such use, but is not engaging in such use.”

Significantly, the statute explicitly provides that “individuals currently engaging in the illegal use of drugs” are not protected under the ADA. The withholding of protections for current illegal drug users was intended to balance the desire to help those afflicted with a disease with the urge to condemn illegal behavior.  This would create a bright line for employers seeking to understand their obligations toward chemically dependent employees.

However, the drafters of Minnesota’s Human Rights Act elected not to draw that same distinction between recovering persons and current users. Instead, they crafted the state law to omit any reference to the illegal nature of the drug at issue and to focus exclusively on whether the chemically dependent employee can perform the job by stating:

For the purposes of this subdivision, “disability” excludes any condition resulting from alcohol or drug abuse which prevents a person from performing the essential functions of the job in question or constitutes a direct threat to property or the safety of others.

Thus, Minnesota employers must bear in mind when reading the EEOC Guidance that its advice regarding former drug users also applies to employees whose addiction and current use of opioids does not interfere with the employee’s work or pose a direct threat to property or safety.

When considering the new EEOC Guidance and the overall issue of the impact of opioids on the workplace, employers should remember that all of this applies only to persons actually suffering from chemical dependency – the causal and/or voluntary use of opioids (or any other substance) is not protected under federal or state law.

Possible Termination

According to the Guidance, if an employee is lawfully using opioids and is not otherwise disqualified under a specific federal law, an employer may not take adverse action against an employee without first “considering if there is a way for [the employee] to do the job safely and effectively.” In other words, the employer must offer reasonable accommodation. (Again, remember that in Minnesota, this obligation exists regardless of whether the employee’s use of opioids is lawful).

Thus, as with other disabilities, the Guidance reminds employers that employee addiction to opioids, either past or present, is not a basis for employment decisions. Instead, it is the starting point for evaluation of whether and to what extent such addiction affects performance and/or safety, and if so, whether a reasonable accommodation can be identified to overcome the performance or safety concern.

In evaluating whether the employee’s addiction poses a performance or safety issue, there must be objective evidence and not merely remote or speculative concerns. Especially in the case of safety risks, employers should consult medical and occupational experts, and may request medical evaluations, although under Minnesota law, such evaluations may be required only with the consent of the employee, and of course, the employer must pay for this exam.

Accommodations

The Guidance recognizes that employees may be entitled to accommodation either because they are using opioids to treat pain arising from a current disability or the addiction itself has become a disability. In either case, however, the accommodation must facilitate the employee’s ability to perform the essential functions effectively and without safety risks.  As such, merely ignoring the performance or behavioral deficiencies caused by opioid abuse is not within the range of required considerations.

Employees may also be entitled to accommodation if they have recovered from opioid addiction and need to attend a support group meeting or therapy session in order to avoid a relapse.  While it is permissible to ask the employee to try to schedule such sessions outside of working hours, declining to allow the employee to miss work to attend them poses a significant risk of being considered a failure to accommodate.

Lastly, remember that the need to be off work for opioid addiction treatment likely would qualify for leave under the Family and Medical Leave Act (FMLA). Therefore, the first 12 weeks that an employee needs to be off would be job protected.  If additional time off is needed, leave could be provided as an accommodation.  The employee’s job would still be held open for the employee’s return unless and until the employer determines that doing so is an undue hardship.

Bottom Line

The EEOC’s Guidance really does not offer new answers or perspectives on the issue of dealing with employees suffering from opioid addiction. Moreover, Minnesota employers have been subject to a stricter standard than what the ADA imposes for some time.

Nevertheless, the Guidance is a good reminder of best practices and provides solid recommendations on accommodation issues for such employees.

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George Clark, an insulin-dependent Type II diabetic, worked as a personnel manager for Champion National Security, Inc., a security staffing company.  In addition to handling recruitment, hiring, discipline and terminations, Clark oversaw training on company policies, including the “alertness policy” which provided: “[S]leeping or giving the appearance of sleeping at any time while on duty or on the client’s property (including breaks) is considered a terminable offense.”

Security Alert?

At one point, Clark’s manager Paul Bents heard that Clark was witnessed going into his office, closing the door and snoring loudly enough to be heard through the door.  The next month, Bents received an anonymous picture of Clark appearing to be asleep at his desk. Bents declined to take any action at that time due to the unknown identity of the reporting employee and the lack of corroborating evidence.

Some months later, an employee reported to Bents that Clark was sleeping at his desk. Bents went to the office and snapped a picture of Clark in full repose. Clark then woke up and claimed that he did not remember coming to work that morning.  He then said that he must have experienced a diabetic emergency and was going to the hospital.

Bents emailed the snapshot to Corporate Human Resources Director Jeff Mays along with the other employee’s statement of what he saw. Mays immediately contacted Clark, who was still at the emergency room, and fired him for violating the alertness policy.  Clark protested that he was not sleeping and instead had passed out due to low blood sugar, but Mays stood firm and confirmed the termination decision.

Clark sued under the Americans with Disabilities Act (ADA), claiming that he was discriminated against because of his disability and that he was denied an opportunity to seek accommodation by being fired so abruptly.  After the lower court dismissed his claims, Clark appealed to the Fifth Circuit Court of Appeals.

If You Snooze, You Lose

The Fifth Circuit upheld the decision to dismiss Clark’s claims.  As for the discrimination claim, the court explained that a claimant under the ADA has to demonstrate that he is “qualified” for the job.  To be qualified means being able to perform the essential functions of the job with or without reasonable accommodation.  Clark clearly could not perform without accommodation since, as the court so aptly explained, “maintaining consciousness is a basic element of any job.”

Clark failed to show that he could perform the essential job functions with accommodation because he did not identify any suitable accommodations that would have allowed him to be successful.  The Appeals Court reasoned quite succinctly that this was “probably because interviewing, hiring, training, disciplining, and terminating security guards requires him to be awake.”  Since Clark could not stay awake with or without accommodation, he was not a qualified individual and he therefore could not invoke the protections of the ADA.

The Court also dismissed Clark’s claim that he never had a chance to request an accommodation or engage in an interactive process because he was summarily terminated. They explained that he had plenty of opportunities to request an accommodation for his disability-induced sleeping but failed to do so until he was terminated.  The Court concluded that this sort of “after-the-fact, retroactive exception” to a critical work policy is not a proper accommodation request under the ADA.

Bottom Line

As this case demonstrates, when an employee is terminated for misconduct, the ADA does not require the termination to be rescinded just because the employee finally gets around to explaining that the misconduct and the disability are related.

Of course, the employer should be sure that they had no previous knowledge of this relationship, and it always is reasonable to listen to the employee and consider whether a second chance is warranted.  Otherwise, the employer should not lose any sleep over the termination decision.

The post Letting Employees Sleep on the Job is Not a Reasonable Accommodation appeared first on Felhaber Larson.

Edward Youngman worked as a youth counselor at the Peoria County Juvenile Detention Center (the “Center”). Following surgery for removal of a pituitary tumor, a portion of his pituitary gland, and his thyroid, he developed hypothyroidism and related complications.

Just Do the Math

After the Center decided to cross train all counselors on their various areas of operation, Youngman was assigned to work in the Control Room.  This area was described in the decision as “packed with electronic equipment that emitted various humming, beeping, or buzzing noises and required the operator to make rapid turning movements in order to monitor multiple video screens, some of which displayed multiple camera feeds from around the detention center.”

Youngman began suffering headaches, dizziness, and head and neck pain. He provided a doctor’s note from his primary physician indicating that he was experiencing motion sickness and should not be assigned to the Control Room.  The Center then sent him for a fitness for duty examination with the county’s physician, who reported that Youngman should not view multiple televisions or monitor screens, avoid rapid alternating movements and flashing lights, and not engage in commercial driving.

Youngman asked if he could continue working but not be assigned to the control room.  The Center said this was not possible (the decision never explained why they felt that way) and placed Youngman on a medical leave of absence under the Family and Medical Leave Act (FMLA).  After his FMLA leave concluded, the Center filled Youngman’s job but continued his medical leave until he could return to work in an available opening.  After some time passed, Youngman sued the Center in Federal Court for failure to accommodate his disability under the Americans with Disabilities Act (ADA) and corresponding state law.  The trial court dismissed the claim and Youngman appealed to the 7^th Circuit Court of Appeals.

Accommodation Demand Does Not Add Up

Youngman had some legitimate concerns, mainly with respect to why the Center refused to modify their cross-training requirement so he could skip the Control Room, and why they never proposed any alternatives other than simply putting him on a leave of absence.  However, Youngman never got that far because the Appeals Court affirmed the dismissal based on one threshold and overriding principle – the limitation that Youngman wanted the Center to accommodate (seasickness symptoms) was not actually caused by his disability (hypothyroidism).

The Court explained that while Youngman most likely did suffer from a cognizable disability and also had obvious medical limitation affecting his job performance, he never produced proof that the disability and the limitations were related.  In fact, Youngman’s own physician testified that he found no connection between motion sickness and Youngman’s hypothyroidism (or the medications that he took to control it).

The Court concluded that in the absence of such evidence, Youngman could not prove that the Center’s failure to accommodate his limitations was discrimination “based on” his (unrelated) disability.

Bottom Line 

There is a simple equation that needs to be followed in every situation where accommodation is requested: Factor A (the medical condition in general terms) + Factor B (the actual restrictions imposed by the condition) = Factor C (accommodation decision).  If the employer is not aware of the medical condition (Factor A), they cannot complete the equation because they do not know if accommodation is required.  Similarly, if they know the condition but not the actual restrictions (Factor B), they cannot determine what the right accommodation(s) might be.

Sometimes, health care providers try to solve the equation for the employer but get the math wrong.  They tell the employer what the condition is and then direct that the employee not work in a certain department, not perform a specific job responsibility.  And yet, that doctor has never seen the job being performed or visited the work site – how then can that doctor know what the employee can or cannot do, or whether the employer might know of an accommodation that will allow the employee to work?

Similarly, as in the Youngman situation, the doctor will identify the restrictions that an employee has but fail to link them to any sort of identifiable medical condition/disability.

The key for the employer is to get the right information.  Find out in very general terms (you don’t need an extended or detailed diagnosis) what the medical condition is and what restrictions are imposed by it. That gives you the necessary link to know that there is a disability at issue and accommodation must be considered.

It’s as simple as A, B, C.

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Minneapolis firefighter Keith Daniel injured his ankle during an on-duty rescue.  Daniel’s doctor prescribed that he wear “tennis shoes with arch support + high rescue boot high ankle” to relieve his pain and stabilize his ankle.  Daniel thereupon filed a claim for workers’ compensation benefits to pay for the shoes and to cover wages lost as a result of the injury.

It’s All About the Shoes

Initially, Daniel was allowed to wear the shoes and received compensation for them (and for the lost wages as well).  However, 6-8 weeks later, the Deputy Fire Chief told Daniel that he could no longer wear the tennis shoes because they violated the Department’s policy requiring that firefighters must wear, while in the fire station “plain toe, black leather boots that do not interfere with response time.”

Soon thereafter, Daniel reinjured his ankle and then seriously injured his shoulder while climbing down from a fire truck.  Daniel was offered light duty but was still not allowed to wear his prescribed shoes.  Daniel claimed that if he could not wear the shoes, the light duty job did not meet his physical restrictions, whereupon he was placed on medical leave until his work restrictions allowed him to wear shoes that complied with the Department’s policy.

Daniel eventually sued the City under the Minnesota Human Rights Act claiming, among other things, that the City failed to reasonably accommodate him by denying him the ability to wear the prescribed shoes.  He also sued under the Workers Compensation Act but settled that claim, signing a settlement agreement that covered all of the various injuries he suffered at work, including the ankle injury for which the tennis shoes were prescribed.

Exclusive Doesn’t Actually Mean Exclusive

With the workers compensation claim behind them, the City filed a motion to dismiss the Human Rights Act claims.  They contended that dismissal was required in accordance with the 1989 Minnesota Supreme Court decision in Karst v. F.C. Hayer Company (“Karst”) which determined that the Workers Compensation law was the exclusive remedy for any claims arising out of injuries in the workplace.  This was based on language in that statute professing that in regard to workplace injuries, the Act’s remedial provisions replace any other liability “. . . on account of such injury.”

Although the trial court denied the motion to dismiss, the Minnesota Court of Appeals reversed and dismissed the case citing the controlling precedent of Karst.  They ruled that under Karst, Daniel could not seek any other type of remedy for his workplace injury except under the Workers Compensation statute.  Daniel then appealed to the Minnesota Supreme Court.

The Supreme Court reversed again and ruled that Daniel could pursue his discrimination claims.  In so doing, they explicitly overruled Karst because it wrongly placed the emphasis on whether the employee had a remedy for a workplace injury instead of addressing the nature of that injury.  The Daniel court explained that the Workers Compensation law was never intended to focus on all harms stemming from workplace injuries. Instead, the concept of workers compensation was an “industrial bargain” whereby traditional fault-based litigation was replaced with a no-fault system designed to provide quicker relief to workers.  As such, the workers compensation law was intended to provide redress only for the actual personal injuries  – physical and mental – that an employee endured as a result of getting hurt at work.

Discrimination is More Than a Personal Injury

A discrimination claim, however, addresses very different sorts of harms, most notably the loss of dignity and self-worth occasioned by intentional acts with wrongful motives.  They also seek to vindicate and enforce the civil rights of the general public – the right of individuals and society as a whole to be free from the harmful effects of discrimination.  The Minnesota Supreme Court concluded that these are not the types of injuries upon which the legislature would have sought to impose limitations.

The Supreme Court therefore overruled Karst and held that Daniel’s discrimination claims are not barred by the exclusive-remedy provision of the workers’ compensation statute. To rule otherwise, they said, would “thwart the Legislature’s intent to protect the civil rights of disabled employees under the Human Rights Act”.

The Court did offer one concession to employers by ruling that to the extent that the workers compensation and discrimination claims are both filed, the employee is not entitled to double recovery for the same harm.  Therefore, for example, an award of back pay under the Human Rights Act would preclude a similar award under the Workers Compensation Act.

Bottom Line

Since disability discrimination claims regarding workplace injuries could always be brought under the federal Americans with Disabilities Act (ADA), why is this decision is so troubling?  For one thing, the damages provisions under the Minnesota Human Rights Act are more extensive than they are under federal law so an employee’s ability to bring a concurrent state law claim raises the stakes substantially.  In addition, the state law has a slightly longer filing period so more claims can get filed.

Finally, the ADA applies only to employers with 15 or more employees while the state law applies to all employers.  Therefore, those that can least afford more liability are affected most dramatically by this ruling.

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Gary Brunckhorst was a long-term employee of the City of Oak Park Heights, Minnesota. In 2014, he contracted Fournier’s gangrenous necrotizing fasciitis, a rare, life-threatening disease commonly known as “flesh-eating” bacteria. He underwent multiple surgeries and spent months in care facilities but was left with long-term injuries. During this period, Brunckhorst requested and was granted FMLA leave.

After three months of leave, the City Administrator informed Brunckhorst that he had exhausted his FMLA leave but that he was eligible for up to ninety days of unpaid leave under a city ordinance. Brunckhorst’s request for this leave was granted, as were multiple requests for extension of the leave.

Employee Gets Two Options and Chooses Neither

Meanwhile, the Oak Park Heights City Council determined that Brunckhorst’s position was no longer needed, in part because its duties had been absorbed by other employees. The City Administrator told Brunckhorst that he could either accept a severance package or move into a different, lower-paying position. Brunckhorst declined both alternatives, stating instead that he wanted to remain in his original position.  He therefore remained out on leave.

Eventually, the City Administrator sent Brunckhorst a letter requesting that he submit a request for whatever reasonable accommodations he needed for the new position and that he return to work in that new job by a specified date or be terminated. Brunckhorst’s attorney responded, stating that Brunckhorst should return to his original position on a reduced schedule and be allowed to work from home. However, while the accompanying physician’s report confirmed the restriction to four-hour work days, it said nothing about working from home. After continuing efforts to negotiate Brunckhorst’s return failed, the City terminated him for failure to return from his leave.

Brunckhorst sued under the Americans with Disabilities Act (ADA) and the Minnesota Human Rights Act alleging that the City failed to offer a reasonable accommodation, failed to engage in the required interactive process, and terminated him in retaliation for complaining of disability discrimination. The federal district court granted the city’s motion to dismiss and Brunckhorst appealed the dismissal to the Eighth Circuit Court of Appeals.

Court Affirms Dismissal With Some Teasers

 The Eighth Circuit affirmed the dismissal, but did so with some rather intriguing pronouncements:

– First, they said Brunckhorst was not entitled to reinstatement to his original position because he did not return to work before his FMLA leave expired. Standard accommodation analysis suggests that holding the job open for some period of time after the legally-mandated FMLA leave expires is advisable, and the Equal Employment Opportunity Commission (EEOC) has issued an Enforcement Guidance Memo indicating that doing so is required. The Court explicitly declined to follow the EEOC’s guidance, dismissing it as non-binding authority.

–  In addition, the Court noted that there was no medical reason why Brunckhorst had to be reinstated to the original job since the alternative, lower-paying position offered to him met his medical restrictions. This could be read to suggest that if an employee has been granted a medical leave as an accommodation, an employer does not breach the duty of reasonable accommodation by offering that employee a lesser job upon the employee’s return to work. However, it is perhaps more plausible that the Court was just using some imprecise language to dispense with a Brunckhorst’s unreasonable demand that he was entitled to reinstatement to a job that no longer existed.

– Finally, the Court reasoned that working remotely was not reasonable or required since Brunckhorst had testified that working from home was merely his preference, not a medical restriction. There was nothing in the medical documentation supporting a need to work from home and Brunckhorst failed to show that he could have performed the essential job functions remotely.  Unlike the Court’s rulings discussed in the two preceding paragraphs, however, the Court’s analysis of the work-at-home accommodation request was quite straightforward and consistent with routine accommodation precedent.

The Court also dismissed Brunckhorst’s contentions that he was fired because of the existence of his disability.  Given the amount of leave offered to him, as well as the extensive negotiations regarding his return, the Court found it very unlikely that the City was motivated by unlawful motives in terminating him after he rejected their proposal to return him to work.

Bottom Line

The language of this decision is too uncertain to alter standard practices regarding whether to hold a job open as an accommodation once a FMLA leave concludes, or whether an alternative, but lesser-paying position might be a reasonable accommodation upon a return to work.   As to the first issue, it is clear that the employer acted very reasonably in holding the job open well after the FMLA leave expired.  Thus, the Court may not have been suggesting that the employer need not have held the job open; they have just been responding to the EEOC’s  fairly extreme position that doing so is absolutely required until it constitutes an undue hardship to do so.  We will have to see what the Eighth Circuit says as more such cases come before them.

As to the second issue, the Court was not actually called upon to evaluate whether Brunckhorst should have been returned to his former position instead of getting a different offer because the former job no longer existed.  Thus, the Court’s musing on whether the two jobs both met the employee’s restrictions was not central to the case and is not inherently reliable.  We are better off waiting until the Court has the chance to squarely address a case where the employer is called to defend a decision denying reinstatement to the former position when that position was still available.

Still, there is cause for hope that the Eighth Circuit might be open to giving employers greater flexibility in disability accommodation matters.

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Mark Richardson, a bus driver for the Chicago Transit Authority (CTA), sought to return to work after a medical leave of absence.  Richardson presented a certificate from the CTA’s third-party medical services provider stating that he was fit to return “subject to clearance by CTA’s safety department.”  The CTA then insisted that Richardson, who weighed almost 600 pounds, undergo a safety assessment to insure that he could perform his job tasks properly.

Employee Deemed Unsafe to Drive

The safety assessment determined that Richardson was unable to perform tasks required for safe operation of the vehicle.  In particular, he could not properly use the required hand-over-hand method of turning the steering wheel, and he was unable to keep his foot from depressing both the brake and the gas pedal at the same time. This determination, combined with the fact that Richardson exceeded the bus manufacturer’s recommended allowable weight, led the CTA to conclude that he did not meet their safety standards.  His employment was therefore terminated.

Richardson sued under the ADA claiming that because of his weight, the CTA implemented a different safety assessment than the one they ordinarily use.  Richardson argued that this was discriminatory because of his disability (obesity)  In the alternative, he contended that even if obesity is not a recognized disability, the CTA perceived it to be a disabling condition, thereby bringing him under the ADA’s protection for persons “regarded as” having a disability.

The CTA countered, however, that an assessment was required by the medical provider’s conditional return-to-work authorization, and also by the need to specially assess his abilities given Richardson’s size.  They further argued that since obesity is not a recognized disability, he had no basis to sue regardless of how the assessment was handled.

Underlying Disorder is Required

Judge John Robert Blakey of the Northern District of Illinois granted the CTA’s motion to dismiss the case. Judge Blakey explained that while there is not complete unanimity of opinion, the majority of courts (including the Eighth Circuit which includes Minnesota) have ruled that obesity by itself is not a recognized disability under the ADA.  Instead, ADA protection is warranted only if the obesity is caused by “some underlying physiological disorder or condition.”  To rule otherwise, Judge Blakey observed, would equate a mere physical characteristic such as height, left-handedness, etc., with an actual physical impairment, which goes beyond the stated purpose of the ADA.  Since Richardson presented no evidence of an underlying disorder that caused his obesity, he was not disabled under the ADA.

Richardson’s “regarded as” claim was dismissed on essentially the same basis.  Judge Blackey explained that when an employee claims discrimination based on a perceived disability, the condition that is perceived must itself be a disability that is cognizable under the ADA.  If the perceived condition is not a disability, the employee obviously cannot be regarded as disabled.  Since obesity is not a disability, Richardson could not have been unlawfully regarded as disabled when he was terminated.

Richardson has appealed this decision to the Seventh Circuit.  He is receiving support from a number of influential medical and advocacy groups, some of whom have submitted friend-of-the-court briefs urging the court to recognize obesity itself as a covered impairment regardless of the presence of underlying physiological causes.  They cite updated scientific and medical recognition that obesity itself is a disorder that negatively affects various body systems, thereby coming squarely within the ADA’s definition of a disability. While precedent may still favor affirmance of the lower court, the arguments advanced by Richardson’s advocates are compelling and are sure to be given serious consideration.

Bottom Line

Evolving medical and societal views often influence the courts, just as we have seen in regard to sexual harassment and the #MeToo movement.  If the Seventh Circuit becomes the first appeals court to rule that obesity is a covered disability even in the absence of underlying physiological causes, we may see a surge in other courts following suit.  This will open up new avenues for claims and new demands for accommodation by employees whose size impairs their ability to perform their jobs.

We will watch for the Seventh Circuit’s decision in this matter, which we expect some time in the late summer of fall.

Note: On June 12, 2019, the Seventh Circuit Court of Appeals affirmed the lower court ruling and dismissed the case.

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Sheena Lipp worked in a production capacity for Cargill Meat Solutions Corp. (“Cargill”). She suffered from a lung disease that impaired her ability to breathe or physically exert herself, and periodically experienced flare-ups causing her to miss up to four days of work.  Cargill consistently accommodated Lipp’s restrictions, including observing limits on the number of hours she worked in a week and granting permission to miss work during her flare-ups.

Employee Takes Family Leave

Independent of her own medical issues, Lipp requested and received permission to take a nine-month leave to tend to her ailing mother.  Once this leave exceeded her leave entitlement under the Family and Medical Leave Act (FMLA), Lipp began incurring points under Cargill’s attendance system that assesses a point for every absence and results in the start of progressive discipline once the employee reaches seven points.  Consequently, Lipp’s point total jumped from 8 to a whopping 194.

When Lipp returned from her leave, she received several disciplinary warnings as well as a Last Chance Agreement, which told her that while she had already far-surpassed the point total for termination, she could retain her job unless she accumulated additional attendance points.  She was assured, however, that she would not be assessed a point for missing work due to her continuing flare-ups.  Indeed, within a week, she was absent for that reason and after returning and submitting a doctor’s note verifying her absence, she did not receive a point or a warning.

Two weeks later, Lipp called in to report another absence and identified “vacation” as the reason even though she had no vacation balance.  Cargill promptly terminated her employment under the Last Chance Agreement, at which time Lipp claimed that she mistakenly cited the wrong reason for the absence and that it was actually due to her medical condition.  Cargill gave her a chance to submit medical verification but she failed to do so, so her termination remained effective.

You Aren’t Qualified If You Don’t Show Up

Lipp sued under the Americans with Disabilities Act (“ADA”) and corresponding state law claiming that Cargill refused to accommodate her by waiving the attendance point and discriminated against her based on her disability.  The trial court granted Cargill summary judgement (early dismissal), prompting Lipp to bring the case to the Eighth Circuit Court of Appeals.

The Appeals Court sided with Cargill, explaining first that the ADA required Lipp to establish that she was a “qualified individual,”, meaning a person “who, with or without reasonable accommodation, can perform the essential functions” of his or her job.  In this regard, the Court observed that regular and reliable attendance is an essential function of most jobs.  Since Cargill’s  policy called for termination after nine absences, and since Lipp missed 195 days for reasons unrelated to her own disability, she simply could not establish that she met the qualifications to perform her job even though her absences had been authorized.

As for the failure to accommodate claim, the Court observed that Cargill had accommodated Lipp extensively in the past.  In regard to the final absence, Lipp never advised Cargill of the need for accommodation until they had already decided to terminate her.   Even then, when Lipp finally did divulge that her final absence was disability-related, Cargill offered to accommodate her upon receipt of verification, which Lipp failed to provide in a timely fashion.  Thus, Cargill did offer an accommodation but Lipp failed to meet the reasonable conditions (medical verification) for taking advantage of that offer.  As a result, the appeal was denied in full.

Bottom Line

While it is not true in every single case, attendance is an essential function in the vast majority of jobs.  Thus, when an employee seeks accommodation (perhaps through a leave of absence or relaxation of attendance standards), the employer may seek verification of the medical reason for the accommodation.  If that verification is not forthcoming, the employer has the right to deny the request.

In this case, the employer acted very generously in allowing the employee to return under the Last Chance Agreement, continue missing work due to her medical issues and especially try to salvage her employment after reportedly missing a day for non-medical issues.  Her failure, however, to follow through after the company’s very reasonable offer to excuse the absence upon submission of a doctor’s note made the termination an easy call and, according to the Court, a legal one.

The post The Importance of a Doctor’s Note in a Disability Discrimination Case appeared first on Felhaber Larson.

Janice Hustvet worked as an Independent Living Skills Specialist, a role with direct interaction with clients who were treated as if they had “compromised” or “fragile” immune systems. In 2013, Hustvet’s former employer merged with Allina Health System (Allina). As a result, Hustvet and others were to become Allina employees but needed to successfully complete health assessments before being placed into their positions.

During Hustvet’s assessment, Allina learned that she was not immunized for rubella. Allina informed Hustvet that she would need to develop immunity to rubella by receiving one dose of a Measles, Mumps, Rubella vaccine (MMR vaccine).

Vaccination is a Sticking Point for Employee

Hustvet refused the MMR vaccine, stating that her “health is of the utmost concern” and that she had “several cases of mumps and measles, the MM part of the MMR” in the past.  Therefore, she needed to limit her “exposures.” Since a vaccine that only covered rubella was not available, Hustvet’s refusal to become immunized was recorded as a voluntary resignation from her job.

Hustvet sued Allina under the Americans with Disabilities Act (ADA) and the Minnesota Human Rights Act (MHRA) alleging that the initial medical examination was unlawful.  Further, she alleged disability discrimination for failure to accommodate her, and retaliation for her opposition to an unlawful immunization policy. The lower court dismissed her claims on summary judgement (early dismissal) and Hustvet appealed to the Eighth Circuit Court of Appeals, but her appeal was denied on all counts.

In regard to Hustvet’s claim that the exam was not lawfully permitted, the appeals court noted that the ADA allows employers to require medical examinations for current employees if the examination is “job-related and consistent with business necessity.” Siding with Allina on this issue, the court explained that the fundamental purpose of the screening was to make sure that employees who might come into contact with clients:

• were immune to communicable diseases;
• did not have communicable diseases that could be spread to clients; and
• could wear a respirator in the event of a disease outbreak

These were all necessary to the safe and effective operation of Allina’s business.

Alternatively, the court observed that the ADA and the MHRA permit employers to conduct medical inquiries for prospective employees after a conditional job offer has been issued.  Having just received an offer from Allina following the merger, Hustvet was essentially a new employee subject to medical testing under these circumstances.

Court Injects Common Sense into Accommodation and Retaliation Claims

Turning to Hustvet’s failure to accommodate claim, the Court concluded that she had not proved that she suffered from a disability so no accommodation was required.  While Hustvet argued that  her chemical sensitivities or allergies to the MMR vaccine was a bona fide disability, the Court determined that she:

has never been hospitalized due to an allergic or chemical reaction, never seen an allergy specialist, and never been prescribed an EpiPen. Nor has she ever sought any significant medical attention when experiencing a chemical sensitivity, taken prescription medication because of a serious reaction, or had to leave work early because of a reaction.”

As a result, Hustvet could not establish a disability for which accommodation was needed.

Finally, the Court ruled that Hustvet was fired due to her failure to comply with Allina’s immunization policy.  Since that policy was lawful, her opposition to it was not protected.

Bottom Line

This is a critical victory for Minnesota’s health care employers who have determined that employees need to be tested for and immunized against communicable diseases.  The Eighth Circuit has made it clear that a health care employer has a legitimate business need to test and immunize, and employees will have to argue something far more compelling than simply “I don’t want to do it.”

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At some point, the school district implemented a policy requiring that security officers no longer be permitted to be seated while working.  The District required that security personnel walk around the premises on a continuous basis to provide a greater presence within the school and to offer greater vigilance and increased response time if incidents occurred.

Walking Through The Issue

Subsequently, Ammons developed plantar fasciitis, an inflammation of the tissue that runs across the bottom of the foot and causes significant discomfort. She therefore asked to be able to sit at a chair and desk for ten minutes of every hour in order to relieve her discomfort.  The District denied this accommodation, however, stating that being able to walk on a continuous basis was an essential function of her job.  Ammons therefore was placed on medical leave status due to her inability to remain on her feet all day.

Ammons sued under the Americans with Disabilities Act for failure to accommodate her medical condition, claiming that walking on a continuous basis was not an essential function of the job.  The District then brought a motion for summary judgement (early dismissal).  The judge who ruled on that motion noted that the following factors were relevant in determining what constituted an essential function of a particular job:

(1) the employee’s job description;

(2) the employer’s opinion;

(3) the amount of time spent performing the function;

(4) the consequences for not requiring the individual to perform the duty; and

(5) past and current work experiences.

District’s Explanation Does Not Sit Well With the Judge

The judge found the job description particularly noteworthy since it did not actually identify the amount of walking that was required for the job.  While security personnel were expected to walk the premises and deal with issues of safety and security, the document did not support the conclusion that someone who needs to sit for a few minutes each hour could not do the job effectively. In fact, quite the opposite – the job description specifically called for the security officer to maintain “an orderly post” and remain “at the post at all times unless otherwise directed by a supervisor.” The judge concluded that this contemplated that a security officer would indeed be stationary for some period of time, thereby undermining the contention that constantly walking around the school was necessary.

The judge also was dubious of the District’s opinion that “a seated security officer has reduced capacity to respond to security threats.”  There was testimony in the record that other security officers had not been disciplined for occasionally sitting while on duty, thereby creating “a factual dispute about whether the administration at the school actually applied the policy to all security officers.”

With additional questions arising out of the other three factors, the judge concluded that the District had not proven that the ability to walk on a continuous basis was an essential function of the job.  He therefore denied the motion to dismiss and allowed the case to proceed to trial.

Bottom Line

A job description should describe the job – it’s that simple. Therefore, if a task is not included in the job description, or it is included but not identified as essential, the employer is unlikely to be able to persuade anyone that the task is nevertheless an essential function of the job.

Be sure to revisit job descriptions on a regular basis and identify the essential functions of each job.  In addition, make sure that those functions are being treated as essential and that employees are actually performing them.

In short, when it comes to job descriptions, be sure to talk the talk AND walk the walk.

The post Judge Walks All Over Employer’s Claim That Security Guard Can’t Sit On the Job appeared first on Felhaber Larson.

Many employees rush to divulge their medical condition in the belief that if they get the words out first, they cannot be let go.  However, a recent Minnesota court decision seems to slam the lid on that sort of thinking.

Customer Complaint Flows From Employee’s Behavior

James Tyner’s job as a broadband technician for Century Link called for him to set up telephone, Internet, and television services for customers.  Due to his diabetes, Tyner often had a sudden need to urinate and was not always able to locate and use a restroom in time.  He therefore kept a bottle in his company van so that he could relieve himself if suitable facilities were not immediately available.

While pulling the van into a customer parking lot, Tyner needed to go and used the bottle while parked (unfortunately) next to the complex manager.  The manager saw what was happening and complained by telephone to Tyner’s supervisor.

In a subsequent discussion, Tyner told his supervisor for the first time that he was diabetic and needed to urinate frequently.  After further investigation, the company determined that Tyner’s conduct was unacceptable and terminated him for violation of their Code of Conduct and their Employee Handbook.

Tyner sued for disability discrimination under the Minnesota Human Rights Act claiming that Century Link had failed to accommodate him.  He argued that he could have performed his job satisfactorily if the company allowed him to use a disposable urine relief bag or adult undergarments.  The matter was then transferred to federal district court.

CenturyLink brought a motion for summary judgement (early dismissal) claiming that Tyner never requested an accommodation and therefore was not protected from termination for otherwise inappropriate behavior.

If the Decision is Made, Employer Need Not Hold It

Federal Judge Donovan Frank ruled in favor of Century Link and dismissed the claim.  He first concluded that when Tyner informed his supervisor of his diabetes and the need to use the bottle for termination, he was merely explaining or justifying his behavior, not seeking an accommodation. Defending one’s self or asking for a second chance is not the same as a request for accommodation.

Even if Tyner had requested accommodation, Judge Frank determined that he failed to demonstrate the existence of an accommodation that would have allowed him to perform the essential functions of his job.   His desire to use a relief bag was essentially no different than his past use of the bottle, neither of which would prevent him from having to relieve himself in public when the urge to urinate struck him.

As for the use of adult undergarments, Judge Frank explained first that since Tyner had never raised this subject with the company, they cannot be found to have denied him the use of those items.

Moreover, a request to wear adult undergarments was not actually a request for accommodation because it was completely up to Tyner to decide whether or not to wear them – he did not need his employer’s approval for that.

Finally, Judge Frank determined that even if Tyner’s actions could be construed as a request for accommodation, the request was not timely.  The judge explained “An employer is not required to excuse past workplace misconduct even if it is the result of an employee’s disability.”

Bottom Line

Certainly, employers must be sensitive and responsive to legitimate requests for accommodation and they should use an interactive process to make appropriate decisions.  Moreover, if a disability results in behavior that warrants discipline but not termination, accommodation must be considered prospectively.

However, this case reaffirms that Minnesota employers can not be required to accommodate disabilities of which they are not aware, nor must they refrain from termination decisions simply because they finally learn of the disability after the terminable behavior occurred.  If a decision has been made (and has been documented so that you can prove the decision was made before you learned of the disability), you should be good to go.

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After completing her Family and Medical Leave Act (FMLA) leave for a back injury, Cynthia Kottke submitted medical paperwork restricting her from lifting more than 10 pounds, or from squatting or standing for long periods.  The paperwork stated, however, that she could perform the essential functions of the job if she was permitted intermittent periods of sitting.  Her employer, national pet supply retailer PetSmart, granted this request and Kottke returned to work.

Some weeks later, Kottke submitted a note from a different doctor that added more restrictions and stated that it was unlikely that Kottke’s medical condition would ever improve.  Based on this discouraging report, PetSmart terminated Kottke’s employment.

Two Letters Should Be Read as One

Kottke sued in federal court under the Americans with Disabilities Act (ADA), contending that the company unlawfully refused to accommodate her and discriminated against her based on her disability. PetSmart denied the claims and sought immediate dismissal on the grounds that they were entitled to rely on the last doctor’s letter in concluding that Kottke would never be able to perform the essential functions of her job.  As such, she was not a qualified disabled person and was not afforded protection under the ADA.

The judge disagreed, noting first that the second letter came from a different medical provider and that it did not indicate that the previous letter was no longer valid or that the previous restrictions had been changed.  Moreover, the second letter did not in any way indicate that there were no accommodations reasonably available that might work for Kottke.  Therefore, the company should have sought to clarify Kottke’s status in relation to the two letters and determined whether she still might be seeking some sort of accommodation.  The judge wrote:

PetSmart’s layperson understanding of the medical information contained in the [second letter] and the meaning of the letter was not sufficient to justify the summary termination of the interactive process. PetSmart thus failed to complete its obligation to engage in the interactive process with Kottke.

As a result, the judge declined PetSmart’s motion to dismiss the claim.

Bottom Line

It is important to remember that was just a decision on a motion for early dismissal, and the judge may simply have been reluctant to decide the case without hearing all of the evidence.

Still, this is a troubling result since it is difficult to imagine how an employer should be expected to accommodate a permanent condition that renders her unable to perform the essential functions of her job.  If that is the case, what is the point of engaging in the interactive process?

Perhaps the real takeaway is that no matter how certain the employer might be that no accommodation is possible, it is still best to go through the interactive process and document that everything that could have been done was in fact done.  It may feel like just going through the motions but as we saw in this case, it could actually help in the case of a motion to dismiss.

The post Employer Failed to Accommodate Worker Even Though Doctor Said She Could Never Perform Her Job appeared first on Felhaber Larson.

For most employers, the only thing scarier than flying snakes and spiders is the thought that employees might show up at work claiming that they need to have Fido, Fluffy or Snake-eyes close at hand.  Fortunately, the accommodation standards governing air carriers like Delta differ from those governing employers under the American’s with Disabilities Act (“ADA”).  Nevertheless, employers are too often confounded by accommodation requests relating to animals. While the exact contours of the law are not entirely clear, there are some general guidelines that will help any employer assessing an accommodation request relating to having an animal at work.

Service Animals vs. “Support” Animals

A “service animal” is specifically defined by a portion of the ADA regulations applicable to “public accommodations.”  Specially, it means a dog that is specifically trained to do work or perform tasks for the benefit of an individual with a disability.  28 C.F.R. § 36.104.  That is, the animal is trained do work or perform tasks for the benefit of an individual with a disability, such as a seeing eye dog, hearing or signal dog, or a psychiatric service dog.

The definition of “support animal” is much less exacting; it generally includes emotional support animals, comfort animals, and therapy animals.  Unlike a service animal, a support animal is not limited to dogs, it is not required to have specific training, and its work or tasks need not be directly related to the individual’s disability.

The distinction is critical because the ADA does not specifically address “support” animals.  This is not to say that an accommodation obligation with respect to “support” animals.  It means only that the law is unclear in this area and employers would be best-served to follow the interactive process.  The “interactive process” is a mechanism employers and employees use to determine whether there is an accommodation that will allow a particular disabled individual to perform the essential functions of a particular job. It may be useful to think of the interactive process as a dialogue with an employee about a specific issue-what he or she needs to perform the essential functions of a particular job and whether the employer can or will provide it.

Accommodating Employees with Service Animals

While every accommodation request should be addressed via the interactive process, requests related to service animals are more likely to be considered a reasonable accommodation.  In fact, the comments from the original EEOC regulations following the ADA’s passage in 1992, specifically mention “guide dogs” as a possible accommodation.  Courts reviewing this issue generally agree that barring service dogs into the workplace may violate the employer’s accommodation obligation under the ADA.

Nevertheless, if the disability is not obvious, such as an employee with Post Traumatic Stress Disorder (PTSD), the employer may request medical documentation to establish the existence of a disability and how the animal helps the individual perform his or her job.  The employer should then engage in an interactive process with the employee designed to address the extent to which co-worker allergies or fears might pose issues and how such issues can be alleviated.

Of course, a request for a service animal need not be granted if it poses an undue burden or safety risk to the employee or others.  For example, one federal appeals court ruled that an employee’s request to have his service dog present at his factory job posed legitimate safety concerns for the employer.

It is critical to note that employers can not insist of “certification” of service animal status because no such process exists.  While some registries exist on a voluntary basis to assist employers in identifying bona fide service animals, there simply is no centralized registration service that issues verified service animal credentials.

Analyzing Accommodation Requests for “Support” Animals

Even though therapy or emotional support animals are not addressed by the ADA regulations relating to employment, employers should respond to such requests like it does with any other accommodation request – namely, by engaging the interactive process.

First, the employer should request information about the employee’s disability and work restrictions. The request should also include information about the animal, including: how the animal helps the individual perform his or her job, whether the animal is housebroken, whether the animal is vaccinated in accordance with state and local laws, how it will be cared for during the day, and whether there are any concerns regarding workplace safety.

Also, remember that the ADA does not require employers to adopt the accommodation that the employee seeks, nor must they choose what seems to be the most reasonable option.  Therefore, employers should research and discuss with the employee any potential alternative accommodations in case there might be another effective means of accommodating the employee with less inconvenience than allowing a support animal onto the premises.

Courts have brought a fair degree of skepticism to the evaluation of whether support animals are “reasonable” accommodations.  One court required proof that the therapy or emotional support animal alleviated one or more of the restrictions afflicting the disabled employee and eventually ruled that the employee had not established a sufficient proof that having a 10-week old puppy at work would reduce the stress that aggravated his Crohn’s disease.

Bottom Line

Requests for support or comfort animals in the workplace are increasing.  While you might have visions of countless animals running amok in your shop, don’t just dismiss the request out of hand.  Instead, engage in a valid interactive process to determine whether the employee has a valid basis for seeking accommodation.  If so, work collaboratively to ascertain whether the request is reasonable, whether alternatives exist and whether a workable solution can be found.

The post From Service Dogs to Comfort Snakes – What Must Be Allowed at Work? appeared first on Felhaber Larson.

Raymond Severson worked several years in a physically challenging job for Heartland Woodcraft, Inc., of West Bend, Wisconsin. In June 2013, Severson took a 12-week leave under the Family Medical Leave Act (“FMLA), for a long-standing back problem.  At the very end of his leave, Severson had surgery on his back, which would require that he be off work for another two to three months.

Severson asked Heartland to continue his leave of absence but the company declined. Instead, they terminated his employment and invited him to reapply when he had recovered sufficiently to return to work.  Severson opted not to return and instead sued the company under the Americans with Disabilities Act (“ADA”) for failing to accommodate his need for a continuing leave of absence. The lower court dismissed the claim, prompting Severson to appeal to the U.S .Court of Appeals for the Seventh Circuit.

Accommodation Applies Only to Actual Work

In an unusually direct and succinct ruling, the Seventh Circuit affirmed the lower court and decided in favor of the employer, declaring that “the ADA is an antidiscrimination statute, not a medical-leave entitlement.” They first reminded us that the ADA only prohibits discrimination against a “qualified individual on the basis of disability” and that a “qualified individual” is one who can perform the essential functions of their job with or without accommodation.

They then determined that the obligation to provide reasonable accommodation applies only to workplace adjustments that will allow the employee actually to perform their work.  Someone seeking time off the job obviously cannot work and therefore is not a “qualified individual” for whom accommodation is required.  As such, a long term absence cannot be a reasonable accommodation under the ADA.

EEOC is Still Wrong

In issuing this decision, the Seventh Circuit rejected the long-standing position of the Equal Employment Opportunity Commission (EEOC) to the effect that a long term leave of absence is a reasonable accommodation if it is:

– of a definite, time-limited duration;

– requested in advance; and

– likely to enable the employee to perform the essential functions of the job upon return to work.

The Appeals Court concluded that the EEOC’s position is more of “effective accommodation” rather than “reasonable accommodation” and that the two are not identical.

The court did leave open the question of whether a short term absence could fall within the ADA’s definition of a reasonable accommodation.  In fact, they referenced one of their earlier cases recognizing that an absence of a few days or even a few weeks might be viewed in the nature of a part-time or modified work schedule of the type that the ADA identifies as possible accommodations.  However, they deemed the need for a medical leave spanning multiple months as something that “removes a person from the class protected by the ADA” and concluded “Long-term medical leave is the domain of the FMLA.”

Minnesota Employers – Read This Before Celebrating

This could be a true game changer but several cautions are in order:

→ At present, this decision only applies to employers in the Seventh Circuit (Illinois, Wisconsin and Indiana).  A similar decision is on the books for Tenth Circuit employers (covering the western plains states).  Employers in Minnesota (which sits in the Eighth Circuit) therefore cannot count on similar decisions from our federal courts at present.

→ Regardless of where the employer is located, we expect the EEOC to continue pressing their interpretation until either the U.S. Supreme Court rules on the matter or the EEOC changes their stance (which is conceivable in light of the changed composition of the EEOC if and when their new leadership is confirmed).

→ This decision only relates to continuing absences of a few months or more – short term absences, as explained above, might still be considered reasonable accommodations.

→ In all cases and in all federal circuits, the employer should still first engage in the interactive process to determine if there is an accommodation that will permit the employee to remain at work instead of on a leave or whether there are existing vacancies into which the employee can be transferred in order to allow them to stay at work.

Bottom Line

Some experts have labeled this the Holy Grail for employers but let’s not get ahead of ourselves.  As explained above, this decision had not been adopted in the Eighth Circuit, so Minnesota employers should not be guided by this decision just yet.

In a delicious bit of irony, however, the EEOC office in Minnesota has for many years applied pro-employee Seventh Circuit precedent to cases arising here because they are considered a regional office that is part of the larger Chicago District.   Let’s see them try to spin this new development where Seventh Circuit precedent now favors employers!

With two federal circuits adopting this position now, and with a hopefully kinder and gentler EEOC, employers throughout Minnesota and the rest of the country have reason for real optimism that we may soon have greater certainty about whether and to what extent long term absences must be accommodated.

The post Court Says Long Term Leave is Not a Reasonable Accommodation appeared first on Felhaber Larson.

The Equal Employment Opportunity Commission (EEOC) says yes but an increasing number of federal courts would disagree.

Most recently, a federal judge in Texas refused to follow the urging of the Equal Employment Opportunity Commission (EEOC) suggestion that a disabled employee must automatically receive reassignment to another position even ahead of more qualified applicants.  Instead, in EEOC v. Methodist Hospitals of Dallas, Judge A. Joe Fish ruled that requiring a disabled employee to compete evenly with nondisabled applicants for a job is not a violation of the Americans with Disabilities Act (ADA).

Accommodation v. Competition

The EEOC sued Methodist Hospital in September of 2015 on behalf of Adrianna Cook, a patient care technician who was diagnosed with an annular tear and degenerative disk condition in her back.  She was given medical restrictions and was placed on light duty, but when she finally was returned to her previous position, she lasted only a single day before concluding that she could not meet her job requirements.  The hospital then placed her on a leave of absence, during which Cook applied for eight open positions that fit her physical restrictions.  Each time, she lost out to another candidate and eventually was terminated from employment.

The EEOC sued the Hospital on Cook’s behalf, claiming that they had not met their duty to offer Cook reasonable accommodation.  They argued that even if Cook could no longer perform her existing job even with accommodations, the Hospital was required to place her into an existing vacancy for a job for which she was qualified.  The federal district court disagreed, supporting Methodist’s policy of hiring the most qualified candidate for a vacant position, regardless of whether or not they are disabled.

Judge Fish’s decision aligns with previous decisions from the Eighth and Eleventh Circuit Courts of Appeals.  Indeed, the Eighth Circuit (in which Minnesota sits) has been a leader in articulating that while the ADA requires the employer to assist disabled employee in locating and applying for vacancies, the rights of those disabled employees do not outweigh the rights of more qualified candidates to compete successfully for vacant jobs.  They explained their position in this regard by stating that the ADA is not an affirmative action statute for the disabled.

Judge Fish predicted that the Fifth Circuit (which includes Texas) would become the next appeals Court to embrace this limitation on the employer’s duty to accommodate disabled employees.  It is not certain whether the EEOC will appeal this decision.

Bottom Line

There continues to be disagreement amongst the various Federal Appeals Courts on this issue so case decisions will conflict depending upon which court is asked to rule.  Still, this is another decision that seems to bode well for employers in the Fifth Circuit and which evens out the playing field a bit more.

For employers in Minnesota, the law remains on your side although the EEOC continues to believe that their interpretation of the ADA is correct in this regard.  The are likely to remain aggressive on this issue.

The post Court Says Disabled Employee Does Not Get Automatic Reassignment appeared first on Felhaber Larson.

A recent Eighth Circuit case cautions employers that their knowledge of the FMLA condition may trigger an obligation to engage in the interactive process under the Americans With Disabilities Act (ADA) based on the employee’s implied request for an accommodation.

Ask Me Anything

Roberta Kowitz worked for Trinity Health (the Hospital) as a respiratory therapist in the cardiopulmonary department and as a lead technician in the blood gas laboratory. Kowitz has a degenerative spine disease and took a leave under the Family and Medical Leave Act (FMLA) for a corrective neck surgery.  After exhausting her FMLA leave, Kowitz returned to work on October 19 with various temporary restrictions (including limiting her to 8-hour shifts and a 10-pound lift).  Her Return to Work form stated these restrictions should be in place for a little over a month (until November 29).  The Hospital honored these restrictions.

Following her return, on November 19, the Hospital issued a memo to the cardiopulmonary department employees regarding the need to maintain up-to-date basic-life support (BLS) certifications, requesting updated copies of the employees’ certifications by November 26. The memo stated:  “If you are not up to date on your BLS you will need to submit a letter indicating why you are not up to date and the date you are scheduled to take the BLS class.”  Kowitz was one of several employees who had allowed their certification to lapse.

Shortly after the deadline passed, Kowitz sent a letter to the Human Resources Department and her supervisor stating that she would “not be able to do the physical part of BLS” until her doctor cleared her to do so. (She had taken and passed the written portion.)  She stated she had a doctor’s appointment on December 2 and would provide an update that day.  Kowitz concluded with:  “Thank you for understanding my condition.  It has been very stressful for me these past months.  I am trying my best but at the same time I want to protect the surgery I had on my neck.  I do go home after a[n] 8 hour shift and I have a lot of tightness in my neck and times when we are very busy, I have pain.”

Actions Can Speak Louder Than Words

On December 2, Kowitz’s doctor determined she needed at least four additional months of physical therapy before she would be able to complete the physical portion of the BLS exam. Kowitz left her supervisor a voicemail with this information.  The next day, the Hospital told Kowitz she was fired because she was unable to perform BLS.  Kowitz then sued for disability discrimination under the ADA.  After her claim was dismissed by the lower court on a motion for summary judgment, she appealed to the Eighth Circuit Court of Appeals, which hears cases from Minnesota.

The Appeals Court first ruled that while having having this certification was an essential function of the job, there was a critical fact dispute regarding (1) whether she could have performed this essential function with an accommodation and (2) whether the Hospital failed to reasonably accommodate her. Kowitz argued that she could have been accommodated by either allowing her additional time to complete the certification or reassigning her to a position that did not require BLS. The Hospital countered, however, that Kowitz never requested an accommodation so they had no obligation to engage in the interactive process to discuss these (or any) options.

The judges sided with Kowitz, explaining that since the Hospital was aware of the context of her FMLA leave, they also knew about her disability. Kowitz made clear in her letter and voicemail that she could not complete the BLS certification because of the disability.  Although she “did not ask for a reasonable accommodation of her condition in so many words,” the Court held that a fact-finder needs to determine whether “her notification to her supervisor that she would not be able to obtain the required certification until she had completed physical therapy implied that an accommodation would be required until then.”  Since it was reasonable to believe that a jury might find that the Hospital violated the law when it simply terminated her without engaging in the interactive process, the lower court’s dismissal before a trial was improper.

Bottom Line

Possibly the worst fact for the employer in this case is that they simply fired the employee following her voicemail about the restriction, without even having a brief conversation with her to see if there was a solution to this problem. Even without this decision holding that this action potentially violated the law, many employers might have chosen to take a different path and at least have a conversation with the employee.

In general, this case reminds us that even without a specific request for an accommodation, there can be cases where an employer still has a legal obligation to engage in the interactive process to determine if accommodation under the ADA is needed.  If an employer is aware that an employee has a physical or mental impairment, and the employee has disclosed that this impairment is affecting something they need to do for their job, this may be viewed as an “implied” request for an accommodation.  This means (at a minimum) an employer may need to engage in good-faith discussions about whether there is a reasonable accommodation that would enable the employee to do his or her job.

The post Employee May Be Entitled to Accommodation Even Without Asking appeared first on Felhaber Larson.

The Resource is not a new policy.  It simply consolidates the EEOC’s existing views in response to what they consider “the prevalence of employer policies that deny or unlawfully restrict the use of leave as a reasonable accommodation.”

Equal Access to Leave…and Beyond

The Resource starts by reminding us that employees with disabilities must have the same access to leave as all other similarly situated employees. The Resource explains, for example, that if an employer allows paid leave without requiring explanation for the absence, a disabled employee must be allowed the same right without either having to provide a medical reason or being relegated to using a particular sick leave benefit.

The Resource then addresses leave as an accommodation, noting that the “purpose of the ADA’s reasonable accommodation obligation is to require employers to change the way things are customarily done to enable employees with disabilities to work.” Thus, employers must consider an unpaid leave of absence as a possible reasonable accommodation even when:

–  the employer does not offer leave as an employee benefit;

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

–  the employee has exhausted the leave the employer provides as a benefit (including legally mandated leave such as the Family and Medical Leave Act or similar leaves under state law).

Of course, as with all accommodations, leave can be denied if providing the leave would impose an undue hardship.

A Request For Leave Must be Treated as a Request for Reasonable Accommodation

The Resource states that a request for leave due to a medical condition must be treated as a request for a reasonable accommodation, which therefore requires initiation of the interactive process required by the EEOC.

For this reason, employers must be wary of using one-size-fits-all approaches to leaves. For example,

–  While employers may establish maximum durations for leaves, a leave beyond the stated maximum may have to be granted as an accommodation for an employee with a disability.  In other words, this may be one of those times when the employer must ignore its own policy in order to accommodate a disability.

–  The use of “form letters” telling employees they will be fired if they do not return by a specified date is problematic.  Instead, the Resource states that such letters should inform employees that if more time off is needed as an accommodation for a disability, they must notify the employer as soon as possible.

–  Preventing employees from returning to work unless they have no medical restrictions (often referred to as “100% healed” policies) is not permissible. Instead, the relevant question is whether the employee can return to work with a reasonable accommodation.

–  An employer may not deny a return to work on the grounds that the employee’s medical restrictions pose a safety risk unless the employer can prove that the employee poses a “direct threat”, defined as “a significant risk of substantial harm to self or to others that cannot be eliminated or diminished with a reasonable accommodation.”

Conducting the Interactive Process.

As noted above, the EEOC asserts that a request for medical leave is by definition a request for accommodation.  If the request falls within the confines of FMLA, workers comp or some other applicable law, leave may be granted under those requirements.  Otherwise, the employer should undertake what the EEOC’s calls the “interactive process”, a collaborative inquiry where the employers obtains input from the employee, the employee’s health care providers and other relevant contributors to determine whether and to what extent a leave or other accommodation might be needed.

In most cases, the interactive process regarding a leave request should zero in on the following information:

–  Why the accommodation is needed (e.g. surgery, physical therapy, counseling);

–  Whether the time off will be continuous or on an intermittent basis; and

–  When will the leave end.

In most cases, this information will be sufficient to permit the employer to make an appropriate decision on an accommodation request.

The Right to Return to Work

The Resource makes clear that the right to a leave includes the right to return to work.  However, there may be times when an employee’s need for a leave (or the need for a leave to continue) presents an undue hardship requiring that the employee’s job be filled.  The Resource is not terribly helpful on this point, saying only that if the job is filled via promotion, the employer might conclude that the employee on leave is qualified for the position that the newly-promoted individual vacated, and that holding that job open for the employee on leave would be an appropriate accommodation.

However, the Resource did not address the more common situation where the employer must fill the vacant job with someone on the outside such that there is no other job to hold open for the employee on leave.  It seems likely that in such cases, the EEOC would still find that a continuing obligation to accommodate exists and that the employer must continue to keep the disabled employee on a leave for a reasonable period to see if a suitable vacancy might exist if and when the employee is cleared to return.

The Resource also reaffirmed the critical right of employers to decide that indefinite leaves (those where an employee cannot say whether or when they will be able to return to work at all) constitute an undue hardship and do not have to be accommodated.

Bottom Line:

Although the Resource does not establish new law or policy, the examples that it contains are instructive for employers, and the consolidation of agency policy gives employers a good starting point in evaluating whether a leave of absence might be a required accommodation in any particular situation.

The post EEOC Issues Guide on Leaves as ADA Accommodation appeared first on Felhaber Larson.

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.

The post Disabled Airline Worker’s Transfer Demand Won’t Fly appeared first on Felhaber Larson.

Absolute Policies are Absolutely Wrong

Due to some personal medical issues, Fatima Salem, a nurse at Houston Methodist Hospital, took a leave of absence under the Family and Medical Leave Act (FMLA). She returned for a short time two months later but then needed to go back on leave, this time for a period that would exceed her remaining FMLA eligibility. This meant that she would also exceed the limits of the Hospital’s policy restricting any leave of absence to no more than six months. When Salem asked the Hospital to waive this policy in her case, they declined and ended up terminating her employment when she was not able to return to work within the requirements of the policy.

Salem filed a discrimination charge with the Equal Employment Opportunity Commission (EEOC) claiming that the application of the employer’s policy capping leaves of absence at six months was a failure to accommodate under the Americans with Disabilities Act (ADA).She also alleged that the corresponding termination violated the ADA as well. The EEOC agreed that the six-month limit on leaves violated the ADA because it created an artificial means of avoiding the employer’s duty to engage in an interactive process to see if a reasonable accommodation for the employee might be feasible. In other words, this one-size-fits-all policy is completely at odds with the individualized analysis that the ADA requires for all cases.

Based on the specific facts of the case, however, the EEOC also ruled that they were unable to conclude that the termination itself violated the ADA.

No Harm, No Foul

Salem subsequently marched right into federal court to sue the Hospital based on the same facts and offering the same arguments. Federal Judge Nancy Atlas also criticized the Hospital’s refusal to consider bending their six-month restriction on the duration of leaves.   Nonetheless, she concluded that the employer had not unlawfully failed to reasonably accommodate for one very simple reason – Salem had never demonstrated that any accommodation might be possible because she did not inform the Hospital of a date on which she might return.

Judge Atlas explained that had Salem offered a projected date for her possible return, the Hospital could have considered their options and determined whether they might be able to work around Salem’s absence until she was able to resume working. But, by asking only to be gone from work without indicating when she might be back, if ever, her request was tantamount to an indefinite leave of absence which the court considered unreasonable. Salem therefore was not permitted to take her case to trial and her claims were dismissed in their entirety.

Bottom Line

This decision is a very important reminder of how policies on leaves of absence should be enforced. Certainly, it is reasonable to maintain guidelines on how long leaves of absence may last. However, using those guidelines to inflexibly deny any medical leave that might exceed the limit invites liability under the ADA, which mandates individualized analysis of each case to determine whether a reasonable accommodation might be possible. Simply standing behind such a policy to decline a leave for an extra week or two, or even more depending upon the circumstances, flies in the face of the this requirement of individualized consideration.

As seen in this case, courts are increasingly unwilling to consider an indefinite leave of absence to be a reasonable accommodation. It is not at all uncommon for an employee to present a doctor’s note requesting a leave of absence for a specific period (three months, for example) at the end of which the employee will be reevaluated. When the reevaluation takes place, the employee returns with another note seeking three more months and another reevaluation, and so on and so on.

At some point, it becomes clear that such employees no longer are seeking leaves to permit them to return to work to perform the essential functions of their jobs.. Instead, they are just seeking to be gone and are unlikely ever to return. In such instances, the leave of absence is no longer reasonable and as this case demonstrates, courts are increasingly likely to support employers will who say enough is enough. The key for the employer, of course, is to know when to make that call and for this, inflexible standards are no substitute for an individualized evaluation of each and every situation that comes up.

The post Employer’s Policy Was Illegal But Enforcing it Was Not – Huh? appeared first on Felhaber Larson.