Tag Archives: ADA

January 14, 2013

ADA Reasonable Accommodations Require an Interactive Proces

Although some say talk is cheap, that saying does not apply when evaluating an employee’s request for a job accommodation under the Americans with Disabilities Act (“ADA”). Instead, it is important to engage in an open discussion with the disabled employee; failing to do so can easily land your organization in court. A Texas school district recently learned that lesson when a federal judge ruled that discharging a disabled classroom aide without engaging in a good faith interactive process regarding reasonable accommodations could result in liability for the district for a violation of the ADA. Nelson v. Hitchcock Indep. Sch. Dist., No. 3:11-CV-00311 (S.D. Tex. Dec. 21, 2012).

Disabled employee needed accommodation after exhausting FMLA leave. Iris Nelson had worked for the Hitchcock Independent School District (“District”) as a teacher’s aide for the Head Start program since 1996. In February 2009, Nelson learned she needed to have knee replacement surgery on both knees due to severe bilateral knee arthritis. Nelson soon took leave covered by the Family and Medical Leave Act (“FMLA”) for surgery on her right knee. In August 2009, shortly before the new school year was to begin, Nelson met with the District’s payroll and benefits supervisor, Theresa Fails, to request another two-and-one-half months off for surgery on her left knee. Fails informed her that she had exhausted her FMLA leave and would not be eligible for additional leave until the following year.

Nelson claims that she told Fails that she would work using a cane or a walker until she became eligible for more leave but Fails allegedly responded that she could not use walking aids. Nelson also stated that she would just have to take pain pills, a suggestion Fails supposedly refused as well. After the meeting, Fails notified the District’s interim Head Start director and the school superintendent of the conversation and recommended that until a doctor’s note could be obtained and a decision made, Nelson should not be allowed to return to work.

Without hearing anything more on her accommodation request, Nelson returned to work on August 17, 2009 and filed a form requesting leave which would begin on August 20, 2009. Nelson did not receive a response to her leave request and unilaterally took off to have her surgery on August 23, 2009. On August 25, 2009, the District’s superintendent sent Nelson a letter denying her leave request, noting that she had exhausted her FMLA entitlement. Six days later, the superintendent sent Nelson a notice of termination, informing her that her “employment with Hitchcock ISD has been terminated for being unable to perform the essential functions of your job.” Not surprisingly, Nelson sued, claiming that the District violated the ADA when it terminated her instead of accommodating her disability.

Court finds evidence that District failed to engage in ADA-required interactive process. The Court concluded that Nelson’s ADA claim could proceed to trial as Nelson presented sufficient evidence that the District never engaged in the communication and good faith interactive process regarding her accommodation requests that is required under the ADA. The Court noted that Nelson offered to postpone her surgery had she been allowed the accommodation of using a cane, walker or pain pills. Although the District argued that it would have been unreasonable to allow Nelson to supervise children while using a walking aid or while under the influence of pain medications, the Court ruled that it need not reach a reasonableness determination because the District had failed to engage in the required interactive process that would have allowed the District to assess the alternate accommodations. The Court pointed out that had the District discussed the alternatives with Nelson, it could have clarified whether she needed a walking aid or pain pills or both, whether any over-the-counter medications would have been sufficient and what the side effects of any required dosage would be. Only by engaging in that dialog could the District determine whether Nelson’s requested accommodations would impose an undue hardship on the District.

Lessons learned. When faced with an accommodation request, employers should not jump to deciding whether the proposed solution places an undue burden on the company, without first actually talking to the employee and seeking further input from the employee if the proposed solution seems unreasonable or unworkable. Employers must engage the employee in an interactive dialog to discuss what would allow the employee to perform the essential functions of their job. Remember, when it comes to reasonable accommodations under the ADA, there is often more than one way to skin a cat. The first accommodation requested may not be the only, or even the best accommodation for a particular disabled employee. By including the affected employee in the accommodation process, employers meet their ADA obligation while exploring the options that could allow the employee to stay on the job. You may not always reach a solution that works for both parties, but as long as you try in good faith—and appropriately document your efforts—it is much harder for the employee to attack your process and actions in a lawsuit down the road.

November 12, 2012

Consider ADA Before Discharging Employee When Leave Expires

By Mark Wiletsky

Can you fire an employee who is unable to return to work due to a medical impairment if that individual has exhausted all of his available leave? What if the employee has been on an extended leave of absence, and has exhausted his Family and Medical Leave Act (FMLA) leave and short-term disability benefits, but still has some restrictions on his ability to work? The answer: maybe, but only if you have engaged in an individualized inquiry under the Americans with Disabilities Act (ADA) before doing so.

Some companies provide generous amounts of leave for employees with health or medical issues. Still, a company should not have a policy by which it automatically terminates employees who cannot return to work when they have exhausted available leave, or if they are unable to return without restrictions. Such policies likely violate the ADA, which generally requires an individualized approach to working with individuals with disabilities. Automatically discharging an employee just because that person has exhausted available leave is not consistent with the ADA's individualized inquiry. Similarly, demanding that individuals be 100% recovered from an injury or impairment before returning to work typically violates the ADA's requirement to accommodate disabled employees who are qualified, but unable to perform the essential job functions without an accommodation.

The Equal Employment Opportunity Commission (EEOC) has challenged a number of companies that maintained these blanket policies, and it continues to do so. On November 9, the EEOC announced that it entered into a consent decree (which is essentially a public settlement agreement) with a nationwide trucking company that supposedly discharged employees automatically upon exhausting their leave or when they were unable to return to work without restrictions. Although the company admitted no wrongdoing, to resolve the lawsuit it agreed to pay $4.85 million, revise its policies to comply with the ADA, provide mandatory periodic training to employees on the ADA, report particular employee complaints about the ADA to the EEOC, post a notice about the settlement, and appoint an internal monitor to ensure compliance with the consent decree.

To avoid these issues or a potential ADA violation due to your leave policies, consider the following tips:

If you have a policy that requires an employee to be able to work without restrictions, or if you discharge employees as soon as they exhaust available leave, you should work with counsel to revise those policies.
When an employee is nearing the end of his available leave, send a letter or call the employee to remind him that his leave is about to expire. If the employee is unable to return when the leave expires, set a time to meet with the employee to determine whether you can accommodate the employee, either with more leave (potentially) or with some other type of accommodation. While you are not required to provide indefinite leave, you may be required to grant some additional time off, or consider another accommodation, if the employee qualifies for protection under the ADA.
Follow-up in writing with the employee after the interactive meeting, to confirm the discussion and avoid any disputes down the road about what was said or agreed upon in terms of the employee's status and ability to return to work.

Managing employee leaves is not easy, and it often requires navigating a variety of statutory rights, including the FMLA, the ADA, and workers' compensation. But taking an individual approach is far better than relying on a "one-size-fits-all" policy, which may very well result in a lawsuit or enforcement action.

September 14, 2012

Working from Home – Not a Reasonable Accommodation

By Mark Wiletsky

If an employee claims that she needs to work from home due to a medical condition, do you have to grant such a request under the Americans with Disabilities Act (ADA)? Typically, the answer is no. Physical attendance is often an essential job function. So, even if some job duties could be performed remotely, being at work is still considered a critical part of the job. In a recent case, a federal district court in Michigan reiterated that principle, rejecting a claim brought by the Equal Employment Opportunity Commission (EEOC) against Ford Motor Company.

In that case (EEOC v. Ford Motor Co., Case No. 11-13742, E.D. Michigan), an employee with irritable bowel syndrome asked to work from home up to four days a week. Ford ultimately rejected the employee’s request. Although Ford allowed some employees in the same group to telecommute, those employees worked at home only one day a week, on a prescheduled day. Also, the employee who made the request had a history of attendance and performance problems, and Ford concluded that working from home that many days per week would not allow the employee to interact with others, as needed to complete her job. The employee then filed a charge of discrimination with the EEOC. A few months later, Ford placed the employee on a performance improvement plan for failing to meet certain goals, and then discharged her when she did not successfully complete her improvement plan. The EEOC later sued Ford for failing to accommodate the employee, and for retaliating against her for filing a charge of discrimination. The federal district court rejected both claims as a matter of law.

The court noted that the employee was absent more often than she was at work, which meant she was not a “qualified” individual under the ADA. More importantly, though, the court rejected the EEOC’s argument that Ford should have allowed the employee to telecommute. Courts typically do not second-guess an employer’s business judgment regarding what job functions are essential. Here, Ford said that attendance was an essential job function. In addition, courts generally find that working at home is “rarely a reasonable accommodation.” In this case, that was especially true because the employee wanted to work from home up to four days per week, choosing what days to work from home at her own discretion; she had frequent and unpredictable absences, which negatively affected her job performance and increased her colleagues’ workload; and her managers did not agree that she could complete her job duties from home. Therefore, the court concluded that working from home was not a reasonable accommodation in this case.

The court also rejected the EEOC’s retaliation claim. There was no evidence that Ford’s stated reasons for the employee’s low performance rating and ultimate discharge were “pretextual,” or a cover for unlawful retaliation.

Lessons Learned

Although Ford prevailed in this case, employers can expect more and more requests from employees to work from home as technological advances make it easier to communicate and complete certain tasks remotely. Therefore, consider these tips:

Review and, if necessary, update your job descriptions to make sure they capture the essential job functions. If attendance at work is an essential job function, make sure your job description says so, either directly or through a description of other job duties, e.g., employee must regularly interact with managers, customers, and vendors to negotiate sales agreements, etc.
If you allow one employee to work from home for a non-medical reason, be aware that doing so might impact your ability to decline a request from an employee who asks to work from home for medical reasons.
If you allow someone to work from home temporarily, be sure to document that it is a temporary issue, and that you will monitor and potentially modify the arrangement as needed.
If an employee asks to work from home as an accommodation, be sure to engage in the interactive process, e.g., carefully consider the request in light of the employee’s job duties and the organization’s business needs, talk to the employee, and consider other alternatives if working from home is not feasible.
If you reject an employee's request to work from home, especially if the request is based on an alleged disability or medical condition, be sure you can support your decision with legitimate, nondiscriminatory and nonretaliatory business reasons.

July 21, 2011

Rehab and One Month of Sobriety Not Enough to be Considered Safe

By Jude Biggs

We all know all too well that illegal drug use and alcoholism cause terrific problems in the workplace, for the addict employee, co-employees and the business. We know that addiction is a medical problem that can sometimes be treated with success. Balancing the needs of the business and hope for the employee’s recovery can be tricky to say the least.

A recent case from the Tenth Circuit, which interprets the ADA for Colorado employers, illustrates the difficult balancing that occurs under the law. The ADA does not protect current illegal drug users, but it provides a safe harbor for those who have successfully completed a drug rehabilitation program (or otherwise rehabilitated successfully) and are “currently” or no longer engaging in the use of illegal drugs. But what does it mean to be “currently” free of illegal drugs? Read on to understand how to deal with employees who have used illegal drugs in the recent past.

Background

Peter Mauerhan worked as a sales representative for Wagner Corporation from 1994 until June 2005. In 2004, Mr. Mauerhan voluntarily entered an outpatient drug rehabilitation program, which met evenings and did not affect his work schedule. Wagner knew he was in the program.

On June 20, 2005, Wagner asked Mr. Mauerhan to take a drug test; he admitted he would test positive (for cocaine and THC/marijuana) but submitted to the test anyway. After testing positive, he was fired for violating Wagner’s drug policy, but was told he could return to Wagner if he could get clean. On July 6, 2005 he entered an inpatient program, which he completed on August 4, 2005. His rehabilitation counselor reported his prognosis at discharge as “guarded.”

The day after being discharged, Mr. Mauerhan asked to return to work at Wagner. He was told he could return, but not at the same level of compensation or with the same accounts he had served before. Mr. Mauerhan refused the changed terms. In later proceedings, Mr. Mauerhan asserted he remained drug free since completing the drug treatment program in July 2005.

In October 2005, he filed a charge of discrimination, asserting that he had been discriminated against on the basis of his status as a drug addict, and later filed a lawsuit asserting the same thing. Wagner asked the court to dismiss the case, arguing that Mr. Mauerhan was a current drug user within the meaning of the ADA at the time he had asked to be rehired. The Company also argued that even if Mr. Mauerhan had a protected disability at that time, the Company’s offer to reinstate him proved it had not discriminated against him. The district court dismissed the case, concluding that Mr. Mauerhan was not protected by the ADA as he was a “current” drug user at the time he reapplied for work.

How Long Must Someone Be Clean to be Considered a Former Drug User?

The Mauerhan case is an important one, as it is the first time the Tenth Circuit has provided guidance on how to determine the difference between a current or former drug user. Although the status of being an alcoholic or illegal drug user may merit ADA protection, the ADA and its implementing rules say that an employee or job applicant is not a “qualified individual with a disability” if he or she “is currently engaging in the illegal use of drugs” when the employer acts on the basis of such use. But the ADA also creates a safe harbor for those who are not currently engaging in the illegal use of drugs, by protecting employees who (1) have successfully completed a supervised drug rehabilitation program and are no longer engaging in the illegal use of drugs, or have otherwise been rehabilitated successfully and are no longer engaging in such use; (2) are participating in a supervised rehabilitation program and are no longer engaging in such use; or (3) are erroneously regarded as engaging in such use, but are not engaging in such use.

The Tenth Circuit admitted it was defining for the first time the scope of what “currently engaging” means. The district court had concluded Mr. Mauerhan failed to qualify for ADA protection when he reapplied for work, as he had abstained from illegal drugs for only one month; one month was, in the district court’s view, too short to be considered “not engaging in illegal drug use.”

The Tenth Circuit agreed with Mr. Mauerhan that one month of sobriety was not insufficient per se under the ADA, but agreed with Wagner that Mr. Mauerhan did not qualify for the safe harbor protections of the ADA. In so ruling, the Tenth Circuit acknowledged that no sister circuit courts used a bright-line rule for when an individual is no longer “currently” using drugs. Some courts require an employee to have refrained from drug use for a “significant” period of time. Others say the drug use must be sufficiently recent to justify the employer’s recent belief that the drug abuse remains an ongoing problem. Another circuit defines “currently” to mean a periodic or ongoing activity that has not permanently ended. The legislative history of the ADA also indicates a rule establishing a firm cutoff for protection is not appropriate.

As a result, the Tenth Circuit concluded that an employee is not protected under the ADA solely based on the number of days or weeks that have passed since the employee last illegally used drugs. Instead, it adopted the Fifth Circuit’s test that an individual is currently engaging in the illegal use of drugs if “the drug use was sufficiently recent to justify the employer’s reasonable belief that the drug abuse remained an ongoing problem.” Mere participation in a rehab program is not enough, although it helps bring the drug user closer to being protected. Rather, the individual must also be no longer engaging in drug use for a sufficient period of time that the drug use is no longer an ongoing problem. The court explained that, when an individual has not permanently ended his or her use of drugs, the drug use invariably is an ongoing problem. Certainly the longer employees refrain from drug use, the more likely they are to be protected under the ADA. Nonetheless, each case must be decided on its own basis, based on a variety of factors, such as the severity of the employee’s addiction, relapse rates for whatever drugs were used, the level of responsibility entrusted to the employee, the employer’s applicable job and performance requirements, the level of competence ordinarily required to adequately perform the job, and the employee’s past performance record. All of these factors assist the employer (and a court if a lawsuit develops) in determining whether it can reasonably conclude the employee’s substance abuse prohibits the employee from performing the essential job duties. As a result, the Tenth Circuit affirmed the district court’s dismissal of Mr. Maueghan’s claims. Mauerhan v. Wagner Corp., Nos. 09-4179 & 4185 (10th Cir. April 19, 2011).

Applying the Lessons of Maughan to Your Workplace

The Maueghan case gives employers some confidence that employees who have been recently released from a rehab program probably will not be considered former drug users entitled to the protections of the ADA. The more time that goes by, the more likely the employee will be thought of as a “former” user. However, don’t forget that other laws or approaches can come into play. For instance, although the Maueghan case did not involve a claim under the FMLA, remember the FMLA regards drug addiction as a serious medical condition for which an employer should allow medical leave and a right to return to work (under certain circumstances). In addition, remember that nothing in the ADA prevents an employer from disciplining or terminating an employee for drug-related misconduct. Given how complicated these situations can be, reach out to your attorney if in doubt, before making a move. It may save you a lot of headaches – and perhaps a hangover – in the long run.

For more information on this case or arbitration law in general, please contact Jude Biggs at jbiggs@hollandhart.com.

This article is posted with permission from Colorado Employment Law Letter, which is published by M. Lee Smith Publishers LLC. For more information, go to www.hrhero.com.

March 21, 2011

YOU JUST MIGHT FIND . . . YOU GET WHAT YOU NEED – A PRACTICAL GUIDE TO FINDING AND MANAGING DISABILITY ACCOMMODATIONS

By John M. Husband and Bradford J. Williams

After two decades of fairly predictable defense verdicts premised upon threshold coverage issues under the Americans with Disabilities Act (“ADA”), the Americans with Disabilities Amendments Act of 2008 (“ADAAA”) has upended the playing field. With the ADAAA, proposed regulations, and emergent case law now defining “disability” into virtual irrelevance, the battleground for disability discrimination claims has shifted to the issues of: (1) “qualified individual” with a disability; (2) “reasonable accommodation” and “undue hardship;” and (3) the motivation behind challenged employment actions.

A recent paper prepared for the American Bar Association’s 4th Annual Section of Labor & Employment Law Conference by Holland & Hart attorneys John M. Husband and Bradford J. Williams outlines the nature and scope of the ADA’s coverage and protections; surveys changes made by the ADAAA, proposed regulations, and emergent case law; and describes innovative methods employers are using to facilitate the interactive process. The paper also highlights specific coverage and accommodation issues arising in the context of mental impairments.

To read the paper, please visit: http://www.hollandhart.com/articles/YouJustMightFindYouGetWhatYouNeed.pdf.

For more information about the authors, please visit: John Husband or Bradford J. Williams