Filed under: duh!
More on this one after the jump...
Filed under: duh!
More on this one after the jump...
How do you think that worked out? (I've got a pretty good guess too).
After the jump, let's see if we're right.
When the new amendments to the the Americans with Disabilities Act took effect in 2009, the law became more employee-friendly by expanding the definition of what constitutes a disability.
That said, the law doesn't (yet) require an employer to have a sixth sense about whether a disabled employee requires a reasonable accommodation.
Generally, an employee has to ask for it. Or, as we find out after the jump, an ADA failure-to-accommodate lawsuit is pretty much doomed.
Peep this ADA failure-to-accommodate case. Plaintiff is disabled and requests light duty. However, the evidence presented showed that there were no light duty positions available and the plaintiff presented no evidence to the contrary.
In denying the plaintiff's ADA claim, the court underscored that it's the plaintiff's burden to show that a requested reasonable accommodation exists and is available. Otherwise, my friends, if it's not available, then it's not reasonable.
The answer to today's QATQQ is fiction.
Plus, it may violate the Americans with Disabilities Act too.
How one company's alleged blunder turned into an ADA lawsuit and a blog post at TheEmployerHandbook.com...after the jump...
My cold, black employment-law heart is numb to just about anything.
I remember this one time, early in my career, when I had to depose a teenage female plaintiff and ask her, with her mother present in the room, whether it offended her that her alleged male sexual harasser wanted to have a threesome with her and her mother.
Back then, it seemed salacious. Now, it's like, whatever. Most of this stuff just rolls off of my shoulders.
But I do have a soft spot for failure-to-accommodate cases under the Americans with Disabilities Act.
For, I get how hard it is for an employee to have to share with an employer -- let alone anyone -- that the employee has [insert name of disability]. It's a very vulnerable position.
Triggering a duty to accommodate.
The Americans with Disabilities Act tasks employers with providing reasonable accommodations to employees with disabilities to allow them to perform the essential functions of the job.
However, as hard as it for an employee to communicate to an employer that he/she has a disability, a recent federal court decision reminds us that merely communicating the existence of a disability is not enough to trigger an employer's duty to accommodate.
In Wallace v. Heartland Community College, the court noted that, while the plaintiff did make her employer aware that she had a disability which was causing her "stress and pain" at work, she failed to communicate how she wanted her employer to accommodate her disability.
And although "requests for accommodations need not be communicated through formal channels," and there may have been some semblance of a reasonable accommodation discussion, the court determined that the plaintiff was responsible for the breakdown of the interactive process that failed to result in identifying a reasonable accommodation.
Make it easier for employees to request accommodations.
The case provides a good lesson to employers and employees alike about the importance of open communication and cooperation in determining what accommodation(s), if any, will allow the employee to perform the essential functions of the job. Although the law may place the onus on the employee to advance the ball, at least initially, when discussing workplace accommodations, proactive employers should facilitate these discussions by educating employees, through policy and training, about the ways in which employees can make these requests.
Hey there, United States District Court for the Northern District of Illinois, Eastern Division.
This Americans with Disabilities Act failure-to-accomodate opinion right here. You had me at "Ortiz reported to work on April 5, 2010, carrying one empty and three full cans of 'Mike's Hard Lemonade' (an alcoholic beverage), along with raw meat."
I may borrow that line for my Hangover Part IV treatment. It stars Zach Galifianakis and the rest of the crew -- cameos by Pee Wee Herman, Octomom, and Peter Dinklage (as Tyrion Lannister) -- and centers around the hi-jinx that ensue after the boys get blackout drunk following Alan's nephew's bris.
(Three years later...)
And the Academy Award for best adapted screenplay goes to Eric Meyer.
"First of all, I'd like to thank God. I'd also like to thank the members of the Academy, my family, and the United States District Court for the Northern District of Illinois, Eastern Division. (applause) Step up your game, Western Division (laughter)..."
Yes, friends I
stole borrowed the plot from the Illinois federal court, which opined (here) that an employee who shows up to work smelling of alcohol and with a blood alcohol level of .198. (15 minutes later, the level was .203), can be fired without violating the Americans with Disabilities Act. Yes, it's true.
(The opinion; not my script idea, dummies).
It doesn't matter that alcoholism is an ADA disability (it is) or, for that matter, what other disabilities the plaintiff may have had. Reporting to work in possession and under the influence of alcohol not only renders that employee unqualified under the ADA, but is a terminable offense.
So, next time one of your employees shows up to work zooted, carrying a four-foot gravity bong and a medium rare chateaubriand, go ahead and fire that person. No ADA violation there.
And then call me. So, I can start working on my next script.
Image credit: GifWave.com
A few months ago, I blogged about a California federal court decision, which recognized that Walgreens may have an obligation under the Americans with Disabilities Act to accommodate one of its cashiers who opened a $1.39 bag of chips (without having paid for it first) because she was suffering from an attack of hypoglycemia (low blood sugar).
That post was entitled "The ADA may require companies to accommodate employee theft. Yep, stealing."
Unfortunately, definitive guidance on that will have to spring from another lawsuit. That is, Walgreens settled for $180,000 last week. A copy of the consent decree is embedded below (and can also be found here).
Now, I'm reasonably sure that Walgreens is right that employee theft is not a reasonable accommodation for an ADA disability. And let's assume that Walgreens has strict rules on employee theft and grazing.
But would failing to discipline this cashier really blow the lid off of Pandora's Box? Or did a Supervisor / HR Manager / Lawyer (some combination) simply overreact by failing to cut some slack to a diabetic employee who needed to eat a small bag of potato chips -- I'll draw the line at a can of Pringles -- to avoid a low blood sugar attack?
You know, it's important to train your managers how to address ADA accommodation issues. It's also important to remind your managers that using their best judgment counts for something too.
Who knows? It may only cost you $1.39, instead of $180,000.
And by coffee, I mean turkey legs and frozen blueberry-mango rum lemonade.
Whoa, whoa, whoa, slow down...
You see that badge over there? You know what I had to do to get that badge?
Buy the full version of Photoshop Spike the Kool-Aid of everyone on the SHRM Annual Conference Speaker Selection Committee
I beat out thousands (trillions?) of other speaker submissions to be selected as a SHRM 2014 Annual Conference & Exposition speaker.
And, crew, I got selected to speak not once, but twice. Know what that means? ***Ducks Lucifer's pitchfork*** Say, is it just me, or do any of you smell sulfur?
That's a lot of pressure. Let's just hope I remember to wear pants. Pretty sure I can pull it off. (The pants and the presentations).
But otherwise, when I'm not speaking, Your Blogness is up for whatever; not in a Bud Light "Up for Whatever" kinda way. See, turkey legs, et al, supra. Rather, I'd like to meet some of my readers -- the ones that aren't crazy stalkers.
So, if you're not a crazy stalker, and you like this blog, and you're gonna be at SHRM14, then drop me a line, and let's plan some time to meet. I look forward to catching up.
See you in Orlando.
So much for that case of Monday writer's block...
According to the EEOC's suit, Disability Network denied a deaf independent living specialist reasonable accommodations and then fired him. For example, the nonprofit refused the employee his requests for TTY equipment, a video phone and the ability to use text messaging, and refused to provide him with alternate accommodations.
* * *
"The irony in this case is incredible," said EEOC Trial Attorney Nedra Campbell. "Disability Network was formed to help and protect people with disabilities - and so was the ADA, under which we now have to sue them for violating their mandate and betraying an employee."
In two weeks, at the SHRM Annual Conference, I'll be presenting "Meeting the Challenges That Leaves of Absence and Attendance Issues Present Under the FMLA and ADA."
The good news is that I have 75 minutes of HR greatness planned for my SHRM sesh. The bad news is that my presentation is at 7:00 AM on the day after the #SHRM14 Social Bash at the Hard Rock Cafe.
So, let's just say
"Hey, thanks a lot, SHRM!" that I anticipate an intimate gathering of HR hardcore FMLA/ADAthletes for my spiel.
What do you think? Should I provide coffee or hair of the dog? Irish Coffee it is!
If, somehow, you miss my session because
[insert another inappropriate comment here] or you won't be at the SHRM Annual Conference, you're not our of luck. Because...
Me, you, Twitter, today 3 pm. Your FMLA/ADA questions; my answers. Details here.
Let's do this, yo.
If I could drink up your collective skepticism when it comes to these Americans with Disabilities Act cases...
...I'd need my stomach pumped.
Let's see. There's the one about the utilityman who couldn't climb utility poles, but had an ADA claim against a utility company. And then who can forget the bridge worker with the fear of heights who presented a viable ADA claim?
And what about the stripper who feared climbing the stripper pole?
Let's travel down to Texas, where everything's bigger; including the wacky ADA cases.
This latest doozy made it all the way to the Texas Supreme Court.
The firefighter's doctor noted an episode of global transient amnesia but approved his return to work. The City, however, was all like, WTH?!? and fought the firefighter's return to active duty in court.
The firefighter countersued, alleging that his employer had violated the ADA when it reassigned him to the training academy and refused to restore him to his prior position in fire suppression.
A jury found in the firefighter's favor on the ADA claim and an appellate court affirmed.
Yeah, no. He's not disabled.
The Texas Supreme Court; however, reversed. It concluded that the firefighter was not disabled:
"There is no evidence from which a reasonable and fair-minded jury could conclude that Proler was disabled. The jury heard evidence of two incidents where Proler was allegedly unable to provide useful help to his firefighting team during actual fires at two residential buildings. Being unable to set aside the normal fear of entering a burning building is not a mental impairment that substantially limits a major life activity.
* * *
...If one considers the NBA, the capacity to play professional basketball is an ability; the rest of us do not suffer from a disability because we cannot play at that level. A job skill required for a specific job is not a disability if most people lack that skill."
But what about a perceived disability? Because even if the firefighter is not disabled, if the City perceived him as such, and it motivated an adverse employment action, then ka-$hing!
But alas, no, the Texas Supreme Court was not buying that argument:
"But there is no evidence from which a reasonable and fair-minded jury could find that the City perceived Proler to be suffering from a mental impairment that substantially limited a major life activity. The evidence was entirely to the contrary--indicating Proler was removed from a front-line firefighting position only because City decision-makers had received information that Proler had frozen at two fires, and he was therefore perceived to be unable to do his particular job as captain of a firefighting crew. Even Proler's mother agreed that the department acted properly in removing him from the scene of the second fire."
There's no strikethrough on that last sentence, is there?
***Evernotes reminder to raise the "mother agreed" defense next time I litigate in Texas***
Takeaways from this post:
- I regret not going with this song.
- This case was decided based on the ADA, prior to its 2009 amendment. As y'all (what I did there, you see it) know, the Americans with Disabilities Act Amendments Act now makes it hella-easy to demonstrate a disability.
- I SLAYED the list below. Crushed it! (First song is NSFW)
I'm feeling rather charitable this evening as I punch out this post. Maybe it's the proud feeling of crossing off my bucket list taking my four-year-old son to a Sunday early-bird at the biggest dive bar in South Jersey. (*Bonus points if you can guess the bar).
Well, I'm not sure if "proud" really captures it.
(And before you call DYFS, that's
sour mix pineapple juice).
But anyway, get a load of this opinion from the Tenth Circuit Court of Appeals. If you're representing an employer and happen to be teeing up a dispositive motion where the issue is whether six months of leave is a reasonable accommodation, then look no further.
Generally, six months of leave is not a reasonable accommodation.
Here are the basic facts:
Plaintiff-employee has cancer (disability) and defendant-employer has a six-month leave policy. Employee takes six months of leave, after which, she requests an additional semester of leave, promising to return in the Summer. Employer says no and offers employee long-term disability (essentially firing her). Employee sues under the Rehabilitation Act (the equivalent of the Americans with Disabilities Act), alleging that her employer should have accommodated her with the additional leave.
Employer wins. (Although, you probably figured that out already).
But, not only did the employer win, it was on a motion to dismiss, rather than a motion for summary judgment. So, you know the lower court and the affirming appellate court came out guns blazing.
Quotables from the the 10th Circuit's blistering opinion.
So, get ready management-side lawyers, here come the money quotes from the opinion. And since I'm not sure whether Westlaw has published it yet, if you're reading this post, you'd better cite it in your brief.
(Just leave out the taking-the-four-year-old-to-the-dive-bar part, ok?)
Here we go:
- "Must an employer allow employees more than six months' sick leave or face liability under the Rehabilitation Act? Unsurprisingly, the answer is almost always no."
- "It perhaps goes without saying that an employee who isn't capable of working for [six months] isn't an employee capable of performing a job's essential functions -- and that requiring an employer to keep a job open for so long doesn't qualify as a reasonable accommodation."
- "[R]easonable accommodations -- typically things like adding ramps or allowing more flexible working hours -- are all about enabling employees to work, not to not work."
- "[I]t's difficult to conceive how an employee's absence for six months -- an absence in which she could not work from home, part-time, or in any way in any place -- could be consistent with discharging the essential functions of most any job in the national economy today."
- "[I]t is difficult to conceive when requiring [six months of leave] from an employer might qualify as a reasonable accommodation."
- "The Rehabilitation Act seeks to prevent employers from callously denying reasonable accommodations that permit otherwise qualified disabled persons to work -- not to turn employers into safety net providers for those who cannot work."
- "In the first place, the EEOC manual commands our deference only to the extent its reasoning actually proves persuasive....And the sentence Ms. Hwang cites doesn't seek to persuade us of much. It indicates that an employer 'must' modify a leave policy if the employee 'needs' a modification to ensure a 'reasonable accommodation'"
- "[T]he EEOC seems to agree with our conclusion that holding onto a non-performing employee for six months just isn't something the Rehabilitation Act ordinarily compels."
- "[A]n inflexible leave policy can serve to protect rather than threaten the rights of the disabled -- by ensuring disabled employees' leave requests aren't secretly singled out for discriminatory treatment, as can happen in a leave system with fewer rules, more discretion, and less transparency."
- "[T]he leave policy here granted all employees a full six months' sick leave -- more than sufficient to comply with the Act in nearly any case."
But before you dust off those no-fault policies...
The Tenth Circuit did not go so far as to say that leave of any length is no longer a reasonable accommodation. Indeed, other parts of this opinion (and common sense) should have you re-thinking that:
"[A]n employee who needs a brief absence from work for medical care can often still discharge the essential functions of her job. Likewise, allowing such a brief absence may sometimes amount to a (legally required) reasonable accommodation so the employee can proceed to discharge her essential job duties. After all, few jobs require an employee to be on watch 24 hours a day, 7 days a week without the occasional sick day."
Also, the court pointed out that "no-fault" leave policies with very short leave periods may not comport with the ADA. Similarly, a sham policy would fail too.
But the big takeaway here is that we have another court holding that six months of leave is generally not a reasonable accommodation.
This is my son's first year playing t-ball. The rules, in case you're not familiar with them, are simple:
- Everybody hits
- Everybody (eventually) rounds the bases
- Everybody scores
Some games, my son wants to lead off. Some games, he wants to hit last. Ultimately, it doesn't matter where he hits. The coach can place him anywhere in the batting order because he will hit, he will round the bases, and he will score.
The Americans with Disabilities Act is similar in that respect. It requires an employer to accommodate an employee with a disability if doing so will not create an undue hardship for the employer and will allow that employee to perform the essential functions of the job.
The ADA regulations include a non-exhaustive list of reasonable accommodations. Does the employee get to choose which one? Sure, the employee can express his/her desire. But, ultimately, the employee should get one that is reasonable, whether it is the employee's choice -- or not.
A recent case reflects this. In Bunn v. Khoury Enterprises, Inc., Mr. Bunn, who is disabled (visual impairment), sought an accommodation to allow him to perform his essential job functions. So, the employer restructured the employee's job. The accommodation worked. But, since it was not the accommodation Mr. Bunn wanted, he sued, claiming a violation of the ADA.
The lower court granted summary judgment to the employer and, on appeal, the 7th Circuit affirmed, because the the job restructuring, while not the employee's preference, nonetheless allowed the employee to perform the essential functions of the job:
"In short, it was exactly the kind of accommodation envisioned by the regulations applicable to the ADA....the undisputed facts show that Khoury did what it was required to do by law....In this area of the law, we are primarily concerned with the ends, not the means...Bunn's apparent displeasure with the way in which Khoury decided on that accommodation, or with its failure to provide the exact accommodation he would have preferred, is irrelevant."
Does this mean that employers should resort to the my-way-or-the-highway approach to workplace accommodations? Certainly not. Oftentimes, providing the employee with a preferred accommodation will not increase expense or inconvenience and, instead, will satisfy the employee.
And although the 7th Circuit underscored that an employee will not prevail on a "failure-to-accommodate" ADA claim by merely showing that the employer failed to engage in an interactive process with the employee or that it caused the interactive process to break down, an employer that goes through the interactive process should have an easier time establishing it acted reasonably when responding to an employee's request for accommodation.
Because, after all, an employer just needs to act reasonably.