Disability Discrimination

How much extra leave is reasonable for an employee who has exhausted FMLA but is not yet capable of returning to work? Does an employer have to keep the absent employee’s job open?  What medical evidence is needed?   How much interactive dialogue is enough?  What about an employee is who is unreasonable and/or demanding?

A recent opinion from the Eighth Circuit provides helpful guidance about these and other problems employers face when deciding whether extended medical leave is a reasonable accommodation for an employee with a serious medical condition who is not yet capable of returning to work. See Brunckhorst v. City of Oak Park Heights, (8th Cir. 2/4/2019).

Continue Reading Eighth Circuit Case Provides Guidance on How to Handle the Vexing Problem of Extended Medical Leave as a Reasonable Accommodation

This is a question about which Iowa employers are increasingly concerned.  The probability your employees and applicants for employment have used marijuana in some form has substantially increased in recent years.    Medical marijuana use is now legal in 34 states and the District of Columbia.  Recreational use is legal in ten states.    But, marijuana is still classified as a “Schedule I” drug under the Federal Controlled Substances Act, making it illegal to possess, use, or sell.  The very fact that marijuana is classified as a Schedule I drug means the Food and Drug Administration has determined it has no currently accepted medical use, a lack of accepted safety for use under medical supervision, and a high potential for abuse.

Continue Reading Does Iowa’s Medical Marijuana Law Impact an Employer’s Right to Maintain a Drug-Free Workplace?

Although many employers use progressive discipline policies, I am typically not a big fan.   In theory progressive discipline seems like a good idea:  it allows an employee to learn from their mistakes.  It puts the employee on notice that further discipline is going to have more serious consequences.    It is difficult for an employee who has gone through the steps to claim surprise when the termination arrives.

On the other hand, progressive discipline limits an employer’s flexibility.   Sometimes it is clear an employee isn’t working out, but the company feels bound to go through the steps before terminating.   In other cases, the circumstances may warrant giving an employee more chances that the policy allows.  In those situations, an employee may be terminated simply because they are on the last step, even though the company would rather keep the employee.

Continue Reading Employer’s Consistent Use of Progressive Discipline Defeats Discrimination Claim

Publisher’s Note:  Today’s guest post is provided by Brandon Underwood, one of my colleagues at Fredrikson & Byron, P.A.   Hopefully Brandon will catch the blogging bug and continue to post….

The Americans with Disabilities Act (ADA) forbids medical examinations and inquiries in employment.  But not all of them.  Instead, an examination or inquiry’s permissibility, and scope, turns primarily on when it occurs.  Too early, and the examination violates the ADA.  Too late, and it may as well.

Continue Reading Court Finds Employer’s Inquiry about Health Conditions of New Employees Absorbed in Merger Complies with ADA

As we have written here many times, summary judgment is an important tool for defendants in employment discrimination cases.   Studies have shown that in federal court, summary judgment is granted to defendants in employment discrimination cases more than in any other type of case.  These studies confirm the experience of most employment lawyers who try cases, whether they represent mostly plaintiffs or mostly defendants.

Continue Reading Summary Judgement in Employment Discrimination Cases May Be Making a Comeback in Iowa State Court

An employee commits an offense that would justify termination.  But, she asks for another chance because the misconduct was not intentional; it was caused by a diabetes induced severe drop in blood sugar that caused confusion and memory loss.    Must the employer be more lenient on an employee with a disability as a form of reasonable accommodation?

This very question the subject of a recent decision from the U.S. Court of Appeals for the Tenth Circuit.   In DeWitt v. Southwestern Bell Telephone Co. (1/18/2017), the plaintiff was a customer service representative at SWBT’s Wichita, Kansas call center.    She suffered from insulin dependent Type I diabetes.  Whenever her blood sugar was low, DeWitt could experience various symptoms, including shakiness, fatigue, lethargy, confusion, and poor coordination.   She told her employer about the condition, and the company allowed her to take breaks to eat or drink as needed to raise her blood sugar.

At the time of her termination, DeWitt was already on a last chance agreement, which meant that any incident of poor performance or misconduct could lead to termination.     One day she suffered a severe drop in blood sugar that she was not able to stabilize even after eating food and drinking juice.   She experienced lethargy, disorientation, and confusion, and was “unable to communicate with anyone.”    While experiencing this condition, she “dropped” two calls, which meant she hung up on two different customers.

The company had recordings of the two dropped calls, but DeWitt claimed to have no memory of them because of her diabetic induced condition.    SWBT terminated her employment because DeWitt’s supervisor believed she intentionally hung up on the customers, and it was not a result of her diabetic induced low blood sugar.  DeWitt sued under the ADA, claiming she was terminated because of a disability, and that the company should have excused the dropped calls as a reasonable accommodation.Call center

Court’s Analysis of ADA Issues

This case presented two important ADA issues.   First, what if the supervisor was wrong in concluding the plaintiff intentionally hung up the customers, and thereby unfairly discounted the potential the disability played a role?  In granting summary judgment to SWBT on this question, the court relied upon a rule known as the “honest belief” doctrine.  That means, if the decision maker honestly holds a belief and acts on it in good faith, it does not matter whether in the end the belief is actually true.  In this case, the court found many objective reasons to confirm the supervisor’s belief the plaintiff acted intentionally.  They included the fact that it is very difficult for a customer service representative to accidentally hang up on a customer because terminating a phone call is a two-step process that required two separate mouse clicks.   The supervisor also found the plaintiff operated successfully the rest of the day, and did not take a break from accepting calls, which she was permitted to do if she felt ill.  No fellow employee witnessed the plaintiff’s disoriented condition despite being in close proximity to her.  Finally, the supervisor concluded the last chance agreement motivated her to not be completely forthright about what happened with the dropped calls.

The second issue involves the employer’s obligation to accommodate.   DeWitt argued the company should have accommodated her disability by excusing the disability related misconduct.   The court concluded, however, that an employer’s obligation to accommodate a disability is prospective; there is no requirement to overlook past misconduct as an accommodation, even if disability related.    The employer’s duty to provide a reasonable accommodation is triggered by an employee’s adequate request for accommodation.   Although the plaintiff had alerted the employer to her diabetes, that was not sufficient because she did not request an accommodation concerning the specific behavior at issue, namely, the possibility of dropped calls.

Takeaways

Despite the favorable employer outcome in DeWitt, discipline or termination for misconduct or performance that is potentially disability related is still a risky proposition.    There are several important things to keep in mind when presented with this situation:

  • The employer should not speculate about whether a disability contributed to the misconduct or poor performance; only if the employee raises the issue should the employer consider it.
  • If the first time the employer learns about a disability is during the discipline or termination process, there is no need to accommodate for what happened in the past; but, if the employee remains employed, the employer should discuss the need for future accommodations.
  • If the employer is already accommodating the employee’s disability is some way, the employer must consider whether the parties contemplated that the disability would cause or contribute to the specific misconduct or performance issues.
  • The employer must carefully consider whether the misconduct or performance issue is actually related to the disability. But, you cannot rely upon speculation; there must be objective facts on which you rely to make this determination

Image Credit: from Google, Creative Commons license, Call Center, Phone, Service, Help, Call

Most employers know they are obligated under the ADA to accommodate mental as well as physical disabilities.  In theory that seems easy enough, but in practice mental health conditions are much more difficult to deal with than physical disabilities.   For example, a common problem is that the employer often lacks specific information about the nature of the employee’s condition.   Sometimes that is because the employee himself does not disclose the condition (or perhaps does not even recognize it himself), but co-workers or a supervisor observe behavior changes or a performance decline.   While the employer may ask the employee general questions about how the employee is feeling, the law allows a more specific inquiry about a medical condition only under limited circumstances.   A disability related inquiry or medical exam is permitted only if the employer has a reasonable belief, based upon objective evidence, that the employee’s ability to perform the essential job functions is impaired by a medical condition, or the medical condition poses a threat to the employee or others.   Unfortunately, it is not always easy for an employer to judge whether there is sufficient reliable information to justify a disability inquiry.

Even in those cases where the employee discloses a mental health condition and requests accommodation, the employer often lacks sufficient information about the nature of the condition or proposed accommodations.  This is particularly true in cases of stress or anxiety.   Medical providers have been known to impose vague restrictions for stressed or anxious employees, including some of the following:  the employee should “avoid working in an environment she finds stressful; “keep stress levels as low as possible;” the supervisor should stop having “hostile confrontations” and instead provide the employee with “calm, non-confrontational treatment.”   By its nature work is often stressful, and employees sometimes have to deal with unpleasant tasks or people.   To demand a stress free work environments in neither helpful for reasonable.

dreamstime13812115What is an employer to do when presented with these types of vague restrictions?  Although I am not often a big fan of EEOC’s work, last month the agency published a resource document that is likely to be helpful.    Entitled “The Mental Health Provider’s Role in a Client’s Request for a Reasonable Accommodation at Work”, the document is targeted at the mental health professional and not the employer.    Presented in a question and answer format, the document provides useful information about the ADA and how the provider can help her patient obtain an accommodation from the employer.  Most useful in question 9, which describes the type of documentation that would be helpful for the employer to assess nature of the employee’s condition, the functional limitations, and proposed accommodations that are specific to the functional limitations.    Employers should consider giving this resource document to the employee and asking the employee to present it to the medical provider.   An employer could also develop its own questionnaire for the provider based upon question No. 9 in the document.

A medical provider who responds to the information listed in question No. 9 would not only help her patient, but also assist the patient’s employer in evaluating appropriate reasonable accommodations for a mental disability.

Image Credit: from Google, Creative Commons license, Man Suffering Stress and Anxiety.

It’s an all too common situation: an employee’s medical condition results in permanent restrictions that prevent the employee from performing essential job functions that she used to be able to do.   It is not reasonable to modify the job so the employee can keep the position.   There is a vacancy in another department for which the employee is qualified, and she wants the job.  But, the employer has another candidate who is more qualified for the vacant position, but does not have a disability.    Does the ADA require the employer to reassign the employee with a disability in favor of hiring someone else more qualified?

What Does the Law Require?

In its published Enforcement Guidance, EEOC takes the position that the ADA requires the employer to do just that.    But, in a recent opinion, the U.S. Court of Appeals for the Eleventh Circuit rejected the EEOC’s position.  (EEOC v. St. Joseph’s Hospital, Inc., 11th Cir. 12/7/2016).     The Court ruled the ADA indexdoes not require non-competitive reassignment as a reasonable accommodation for a disability.  In other words, it is legal to choose a more qualified, non-disabled employee over a less qualified employee with a disability.   The Eleventh Circuit (which covers Alabama, Florida, and Georgia) cited previous opinions from courts in the Fifth and Eighth Circuits (which includes Iowa) that already followed this rule.

In theory the rule is simple, but like many decisions involving the employment discrimination laws, it is more complicated in practice.    The EEOC v. St. Joseph’s Hospital case shows why.  The plaintiff was a nurse who had worked various jobs in the psychiatric unit for more than 20 years.    She developed back pain from spinal stenosis, which ultimately made it difficult for her to walk more than short distances without stopping.  The Plaintiff obtained a doctor’s note recommending she use a cane, which would provide support and allow her to walk longer distances.  But, the hospital was concerned the cane presented a safety risk in the psychiatric unit because patients could use it as a weapon.

Despite the doctor’s recommendation, the hospital told the Plaintiff she could no longer use the cane because of the safety risk.     Rather than immediately terminate her employment, the hospital offered Plaintiff 30 days to apply for other, open positions.    Technically, Plaintiff was not eligible for a transfer because she had been in her existing position for less than six months and was working under a final written warning.   But, the hospital waived those requirements as an accommodation.

The Plaintiff applied for three other jobs.   The hospital hired other, non-disabled candidates for two of them.  The third job was not actually available and was posted in error.    In the end, because plaintiff was not able to find another position, she was terminated.

Here is where it got complicated.  Even though the court ruled the hospital was not required by law to favor Plaintiff over other more qualified candidates, the question of who was the more qualified candidate was left for the jury to resolve.   The jury found the hospital failed to provide a reasonable accommodation for the Plaintiff by not reassigning her to one of the jobs for which she applied.     The hospital still won the case because the jury also concluded the hospital made good faith efforts to find a reasonable accommodation.  But, it is important to note the good faith defense eliminated the liability in this case because of some technical issues relating to the form of the jury instructions.     An employer’s good faith defense in most cases will protect only from damages, but not equitable relief or attorney’s fees.

What Should Employers Do?

The good news is, the the St. Joseph’s case reaffirms principle that an employer may hire the best candidate for the position, with or without a disability.  On the other hand, it remains a significant litigation risk to fill a vacant position with someone other than an employee with a disability, when the disabled employee will be terminated if not selected.   This is especially true for long term employees.   There is a very good chance a jury will be second guess the employer’s decision about which candidate is really the most qualified.

There are a number of policies or practices employers should consider that will make these types of  claims more defensible:  1)  employers should have a stated policy or demonstrated practice of hiring the best candidate for the job;  2) the stated qualifications for a position should match as much as possible the actual job duties; 3) the stated qualifications should emphasize criteria that are more objective (e.g., education, years of experience); 4)  subjective factors, such as the “right fit,” positive attitude, etc. are relevant but should be subordinate to objective criteria  4) identify and document the specific reasons the chosen candidate is more qualified than other candidates, especially if it is not obvious based upon the objective criteria.

Image Credit: from Google, Creative Commons license, Handicapped sign.

Most of us think about workplace accommodations as modifications that will allow an employee with a disability to perform his job.  Without the accommodation, doing the job may be difficult or impossible. Whether that means modifying the job duties, changing the schedule, or providing an assistive device, the ultimate objective is to help the employee to work.

But, an employer’s obligation to reasonably accommodate may not be limited to modifications that will help the employee work.  Sometimes, the required accommodation is to allow an employee not to work, while still keeping his job.

That is the message of a recently published EEOC guidance on an employer’s obligation to provide leave under the ADA.  While this may seem counter-intuitive, the obligation to provide leave as a reasonable accommodation is not really new.   But, with this recent publication EEOC appears to be sending the message that these types of claims will get priority treatment.

The following are some practical compliance and risk management tips to avoid getting in EEOC’s cross-hairs because of your leave practices and policies:

  • If you don’t offer leave as a benefit (or if employees must work a certain amount of time before becoming entitled to leave), you still must consider leave as a potential accommodation to a disability.
  • If an employee has exhausted available leave (such as FMLA), you may be obligated to provide additional leave as a reasonable accommodation.
  • You should not allow maximum or no fault leave policies to be applied without communicating with the employee and possibly considering exceptions to the policy for someone who many need additional leave as a reasonable accommodation.   Get rid of the “form” letters that are automatically sent to the employee nearing the end of the leave period.  These letters typically tell the employee to return to work by a date certain or they will be terminated.   This is a big red flag.
  • Just as with any other proposed accommodation, the interactive process is very important.   Employers should have procedures in place to both engage in the interactive process, document that it occurred, and what was the discussion.

The most important question, and the hardest to answer, is how much leave do you have to give an employee to accommodate a disability before it becomes unreasonable?  While each situation must be evaluated on a case-by-case basis (of course!), the following rules are generally applicable:

  • The employee must be allowed to exhaust legally mandated leave (e.g., FMLA).
  • The employee should be allowed to exhaust available paid leave.
  • Typically, it is not reasonable to require additional leave for a long time.  Of course, what is “long time” for one employer may not be for another.   If the employee has already been gone for twelve weeks on FMLA, it probably would not be an undue hardship to allow a couple more weeks.  A lot depends upon what needs to be done to cover for the absent employee.
  • Typically, it is not reasonable to grant additional leave for an uncertain, unknown period of time.  If a physician provides a date certain the employee can return to work, and it’s not too far in the future (see above), then it probably is reasonable to accommodate.
  • Precedent is important.   If you allowed a similar employee an additional 30 days of leave last year, you should treat this year’s request similarly.

 

A federal district court in Michigan recently granted summary judgment for the plaintiff, (you read that correctly), ruling that the employer was liable for disability discrimination as a matter of law. (Lafata v. Dearborn Heights Sch. Dist. No.7 (E.D. Mich. 12/11/2013)).   A plaintiff hardly ever files for summary judgment in an employment case, let alone wins the motion. So what happened here?

The Plaintiff applied for a position as a Plant Engineer with the Defendant School District.   For ten years prior to applying for the job, Plaintiff worked as a building supervisor at a community center. In that job, he was responsible for complete maintenance, inside and outside the building, minor plumbing and electrical work, roof repairs, and all tasks associated with set up and care of the community pool and ice skating rink.   He regularly used ladders and carried objected weighing more than forty pounds.

The School District offered the Plant Engineer position to Plaintiff, conditioned upon a physical exam showing he could perform the essential functions of the job.   The job description for the position was very general, and did not identify specific tasks or physical demands. The physician who did the pre-employment physical diagnosed the Plaintiff with Charcot Marie Tooth syndrome, a genetic disorder that causes muscle deterioration and gradual loss of strength. But, the doctor did not ask any questions about the Plaintiff’s physical symptoms or his work history. The doctor expressed concerns about Plaintiff using a ladder because he could not “purposely dorsi-flex his foot up or down as he might to have to maneuver while climbing on a ladder."   He also said a forty pound lifting restrictions was a “fair number” based upon his estimation of Plaintiff’s strength, which he assessed by watching Plaintiff climb onto the examination table.

The doctor had a telephone conversation with the Assistant to the Assistant Superintendent, during which he verbally told her about his findings and restrictions.    The Assistant shared her notes of the telephone conversation with her boss (the Assistant Superintendent) and the Director of Operations. They decided, without any further information or documentation, to revoke Plaintiff’s conditional job offer. The reason: Plaintiff could not perform the essential functions of the job. They testified decision was “somewhat automatic”, based upon the restriction against ladders and lifting more than forty pounds.   They likened the Plaintiff’s physical restrictions to a an applicant who has a felony history—it disqualified him in and of itself.

The School District lost this case at the summary judgment stage for two reasons.   First, the information it relied upon about the Plaintiff’s restrictions was woefully inadequate.   District personnel took everything the doctor told them at face value, without having any information about the nature and extent of the doctor’s exam or other information the doctor relied upon.   Second, after learning about the restrictions, the District made no effort to dialogue with the Plaintiff about potential reasonable accommodations. If they had simply talked to the Plaintiff, they may have learned more about the limitations of the doctor’s opinion and perhaps could have developed a solution that would have allowed Plaintiff to do the job while also dealing with any of the medical concerns.

Takeaway: employers cannot farm out to medical professionals their obligation to make an individual assessment of an applicant’s ability to perform the essential functions of a job.   While a physician’s opinion is often essential, in and of itself it does not answer the questions about qualifications or reasonable accommodation.  Nor does it relieve the employer of its obligation to engage in the interactive process.