Sometimes, a little flexibility — and (gasp) humanity — can avoid a big employment lawsuit
Ah yes. We’re going to attempt to put the “human” in HR today.

**clutches icy-cold lawyer heart**

In Grant v. Hospital Authority of Miller County (opinion here), the plaintiff filed and was approved for leave under the Family and Medical Leave Act due to complications with her pregnancy. After giving birth prematurely,  plaintiff contacted HR. As a result of their conversation, HR understood that the plaintiff would need time to recover from her caesarean section. However, the plaintiff did not explicitly request additional leave and the defendant did not offer it either. So, when the plaintiff did not return to work on the day her FMLA was set to expire, she was fired.

Among other things, the plaintiff sued under the Americans with Disabilities Act, claiming that the defendant had a duty to accommodate her by providing a few extra days off from work — even though she never specifically requested them. In its defense, the defendant argued that the plaintiff could not perform an essential job function; namely, attendance at work.

However, as the court pointed out, while attendance can be an essential job function, “the question becomes whether a reasonable accommodation would enable Plaintiff to perform the essential function of her position ‘presently or in the immediate future.'” Like, maybe a couple of extra days off to recover.

Let’s see what the court had to say about all that:

Here, Plaintiff informed Spence on December 8, 2014, that she delivered her baby via emergency caesarean section three days earlier. Spence noted that Plaintiff would need time to recover from the surgery but did not inquire whether or not Plaintiff needed an accommodation and did not offer one. Defendant argues that Plaintiff could not perform her position’s essential function because she was absent from work. Given that Plaintiff was cleared by her doctor to work on December 12, 2014, a short leave of absence would have allowed Plaintiff to return to work—thereby performing the essential job function of her position “in the immediate future.” Defendant has not put forth evidence that such a short leave of absence would create an undue hardship. Thus, Defendant has failed to show that it is entitled to judgment as a matter of law on Plaintiff’s failure to accommodate claim. Accordingly, Defendant’s Motion for summary judgment on this claim is DENIED.

So remember, employers, when an employee provides enough information to put you on notice that he or she may: (a) have a disability, and (b) need an accommodation, the onus shifts to you to ask questions, discuss, and determine with the employee whether a reasonable accommodation exists that will allow the employee to perform the essential functions of the job “presently or in the immediate future.”

And, yes, no, yes it’s ok, no, dammit, it’s never ok, get off my shoulder you angel yes, it’s ok to show some compassion.

“Doing What’s Right – Not Just What’s Legal”
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