Americans with Disabilities Act

By Danielle M. Kays and Erin Dougherty Foley

Seyfarth Synopsis: For the first time since the enactment in 2008 of the ADA Amendments Act (ADAAA), which broadened the definition of a disability under the Americans with Disabilities Act (ADA), the Ninth Circuit addressed, and expanded, the definition of an individual who is “regarded-as” disabled under the act. The court held that a plaintiff establishes he is “regarded-as” disabled if he shows “an actual or perceived physical or mental impairment,” regardless of whether the impairment actually limits, or the employer perceives the impairment to limit, a major life activity. The decision reminds employers to proceed carefully when making personnel decisions regarding employees with injuries or impairments, even if they may not rise to the level of a disability.

Case Background

In Nunies v. HIE Holdings, Inc., the plaintiff Herman Nunies was a former delivery driver for HIE Holdings in Honolulu, who had requested a transfer to a part-time warehouse position. The parties disputed the plaintiff’s stated reason for his transfer request, but the plaintiff claimed he requested the transfer to a less-physical position because he had developed shoulder pain. Plaintiff alleged that the Company initially approved the transfer but subsequently denied it and forced him to resign after he reported his shoulder pain to his employer. The employer cited budget cuts as the reason for denying the transfer and advised plaintiff that his position no longer existed, but evidence showed the employer had an open warehouse position at the time of plaintiff’s termination.

Plaintiff filed a lawsuit asserting disability discrimination under the ADA and state law, alleging that his employer forced him to resign because of his shoulder injury. The employer moved for summary judgment, arguing that plaintiff could not assert a prima facie case of disability discrimination because he was not disabled under the ADA, among other arguments. The district court agreed, granting summary judgment to the employer. In its decision, the district court held that plaintiff did not have a disability and was not “regarded-as” having a disability under the ADAAA, because plaintiff did not provide any evidence that the employer subjectively believed that plaintiff “was substantially limited in a major life activity.” The district court further held that the plaintiff did not establish an actual disability because he “did not identify any major life activities that were affected by his impairment” — indeed, plaintiff had continued to work without apparent issue or limitation. As further evidence that plaintiff was not disabled, the district court held that plaintiff had not demonstrated that his shoulder pain substantially limited any activity compared to most people in the general population.

The plaintiff appealed, joined by the Equal Employment Opportunity Commission (“EEOC”) as amicus curiae. The EEOC explained it offered its position to the appellate court because other district courts in the circuit had “failed to heed” the broader “regarded-as” disability definition promulgated by the ADAAA.

The Ninth Circuit’s Ruling

The Ninth Circuit agreed that the ADAAA expanded the scope of the ADA’s “regarded-as” definition and that some district courts continued to rely on pre-ADAAA case law to apply the older, narrower “regarded-as” disabled definition. Specifically, the district court in the Nunies case had erroneously concluded that Plaintiff had failed to meet his burden of presenting evidence that his employer “subjectively believed that Plaintiff is substantially limited in a major life activity.” Based on the plain language of the ADAAA, the appellate court held that plaintiff was not required to present evidence that the employer believed that plaintiff was substantially limited in a major life activity. Instead, the plaintiff could simply show that the employer terminated plaintiff “because of” his knowledge of the shoulder pain, regardless of whether the employer actually perceived the shoulder pain as a disability, and regardless of whether or not the shoulder pain amounted to an actual disability. Notably, the Ninth Circuit’s expansion of the scope of the “regarded-as” disability definition follows decisions in the First, Fifth, Sixth and Tenth Circuits which similarly defined the definition under the ADAAA.

Additionally, although the employer had argued that the ADAAA “regarded-as” disabled definition does not apply to “transitory and minor impairments,” the appellate court noted that this exception is an affirmative defense with the burden of proof on the defendant, and not the plaintiff. The court held that the employer had not set forth evidence to establish plaintiff’s shoulder pain was transitory and minor.

Therefore, the appellate court held that Plaintiff had established a genuine issue of material fact as to whether the employer regarded him as having a disability.

The Ninth Circuit further reversed the circuit court’s holding that the plaintiff could not establish his shoulder pain was an actual disability. Specifically, the appellate court found that because plaintiff could neither work nor lift more than 25 pounds nor lift his arm above chest height without pain, he had identified two major life activities affected by his impairment. The court noted an impairment “need not prevent, or significantly or severely restrict the activity” in order to substantially affect a major life activity. Therefore, the court found an issue of fact as to whether plaintiff had an actual disability.

Takeaways for Employers

The protections under the ADA, the ADAAA, and state law are ever-evolving and sometimes nebulous. As disability-related issues continue to increase in the workplace, employers should proceed carefully when considering personnel decisions involving individuals with potential injuries or impairments, as they may meet the “regarded-as” disabled definition. This decision is an important reminder to employers to ensure that any adverse actions taken against such employees are based on legitimate, non-discriminatory and non-retaliatory reasons, and to carefully document the business reasons for those adverse actions.

If you have any questions regarding this area or need assistance evaluating personnel decisions relating to employees with medical afflictions, please contact the authors, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Absence Management and Accommodations or Workplace Policies and Handbooks Teams.

 

By Paul Galligan and Tara Ellis

Seyfarth Synopsis: Employers Continue to Labor over Pregnancy Accommodations.

Earlier this month, Plaintiff Caroline Ruiz filed suit in the Southern District of New York against her former employer New Avon LLC, contending that Avon failed to accommodate her high risk pregnancy, and instead hastily terminated her employment upon learning she was pregnant. Caroline Ruiz v. New Avon LLC, et al., 1:18-cv-09033. Ruiz, the former Global Head of North America Indirect Procurement at New Avon LLC, contends that she requested to work from home after her doctor recommended bed-rest for a week, because Ruiz had a high risk pregnancy. However, according to Ruiz’s complaint, Avon callously disregarded this recommendation, forced Ruiz to come into the office, and terminated her, due to fabricated performance issues.

The case raises some interesting questions, including, whether a pregnant employee’s request to work from home due to her doctor’s recommendation of bed rest is a reasonable accommodation, and whether the answer to this question changes based upon the nature of the employee’s job, the length of the anticipated bed-rest and the classification of the employee’s pregnancy as high risk.

We will continue to watch this case, and will keep you posted of any developments.

If you have any questions regarding this area or need assistance evaluating whether to grant or deny long-term or indefinite leave requests, please contact the authors, your Seyfarth Attorney, or a member of the Firm’s Absence Management and Accommodations or Workplace Policies and Handbooks Teams.

By Honore Hishamunda and Alex S. Drummond

Seyfarth Synopsis: Employers face a tough challenge in trying to balance their obligations under the ADA with efforts to enforce workplace rules. A recent decision out of the United States Court of Appeals for the Sixth Circuit, however, highlighted how employers can get that balance right.

The Americans with Disabilities Act (ADA), among other things, requires employers to provide reasonable accommodations to employees qualified to perform the essential functions of their jobs and prohibits employers from retaliating against employees for exercising their rights under the ADA. But what if, in the midst of attempting to comply with these obligations, employers have to enforce workplace rules against someone requesting a reasonable accommodation? A recent Sixth Circuit Court of Appeals decision – McDonald v. UAW-GM Center for Human Resources – highlighted how, with care, employers can balance these seemingly competing goals.

The plaintiff in the case was a receptionist, a union member, and suffered from a genetic disorder which, with the employer’s permission, she took time off from work to treat. During plaintiff’s time with the employer, the operative CBA required employees to take lunch breaks no earlier than 11:00 a.m., and to, once a year, select either a half-hour lunchbreak with separate additional 15-minute breaks or an hour long lunch break. Plaintiff, despite these policies and despite choosing a half hour break, began leaving for the gym at 10:30 a.m. and tacking on her 15-minute breaks to essentially take an hour long break. In addition, plaintiff was accused of sexually harassing another co-worker.

In the midst of the employer’s sexual harassment investigation, plaintiff asked if she could either switch to an hour long break or tack on breaks in order to continue to work out as it helped with the pain from her previous surgeries. Her supervisor rejected this request citing the CBA’s rules, and offered plaintiff the option of arriving early in the mornings to work out. In addition plaintiff’s supervisor warned plaintiff that continued violation of the early or extend lunch break policy could result in disciplinary action.

Plaintiff rejected her supervisor’s compromise, and contacted the company’s personnel manager regarding her requests, this time providing a doctor’s note stating that plaintiff needed to exercise daily for 30 to 60 minutes. The personnel manager stated that the request would need approval from other members of management. However, while plaintiff’s request was being processed and on the same day she received an update regarding the same, plaintiff left early to go to the gym without authorization. Plaintiff was caught and eventually suspended for violating workplace rules. Plaintiff never returned to work and instead took personal leave before submitting her voluntary resignation. The time between her initial accommodation request and her resignation was less than 2 months.

Plaintiff sued claiming a failure to accommodate. Further, plaintiff alleged that her employer suspended her in retaliation for requesting a reasonable accommodation, or, alternatively, that she was constructively discharged. The Sixth Circuit, affirming the District Court, granted employer’s motion for summary judgment on each of plaintiff’s claims.

The Sixth Circuit held that the employer met its obligations to reasonably accommodate plaintiff. Specifically, the court found that the employer listened to plaintiff’s initial request for an accommodation, provided alternatives, again listened to plaintiff’s second request for an accommodation, and was unable to process the request because plaintiff resigned. In doing so, the court noted that, in the ADA context, (i) an employer’s minimal delay due to internal processing or events outside of its control does not an ADA violation; (ii) an employer is not required to provide a specific accommodation if it identify other reasonable accommodations; and (iii) when an employee quits before their accommodation request is resolved, the employee, and not the employer, is typically at fault for the interactive process breaking down.

In addition, the Sixth Circuit held that the employer did not retaliate against plaintiff for asserting her ADA rights. Specifically, the court found that plaintiff was not retaliated against because she was suspended for violating workplace rules, not for requesting reasonable accommodations. In doing so, the court noted that an employee must show that their protected activity was the “but-for” cause of any adverse action. Further, the court found that plaintiff, and other employees, cannot make such a showing where “an intervening legitimate reason to take an adverse employment action [like insubordination] dispels an inference of retaliation based on temporal proximity.”

The Sixth Circuit also held that the employer did not constructively discharge plaintiff. Specifically, the court found that plaintiff’s complained of treatment – the employer investigating her for alleged sexual harassment, declining her preferred accommodation, and suspending her for insubordination – did not support her constructive discharge claim. In doing so, the court noted that a constructive discharge claim “is hard to prove” and requires a showing that “working conditions were objectively intolerable and that [the] employer deliberately created those conditions in hopes that they would force [the employee] to quit.” Further, the court noted that, in the instant case, plaintiff’s suspension was related to her “deliberate insubordination” and her investigation was “management simply… responding to a workplace complaint” such that “no reasonable jury could find that [employer] hoped [plaintiff] would quit because of these preferred reasons.”

This decision highlights that, even when wrestling with their obligations under the ADA context, employers may and should enforce workplace rules.

If you have any questions regarding this area or need assistance evaluating whether to grant or deny long-term or indefinite leave requests, please contact the authors, your Seyfarth Attorney, or a member of the Firm’s Absence Management and Accommodations or Workplace Policies and Handbooks Teams.

By Jade M. Gilstrap and Alex S. Drummond

Seyfarth Synopsis: The D.C. Circuit recently revived a single-leg amputee’s claim that his former employer failed to accommodate his disability by refusing his request for a classroom aide. In reversing the lower court’s decision in part, the two-member panel found triable issues of fact existed regarding whether forcing the plaintiff to work with pain, when that pain could have been alleviated by his requested accommodation, violated The Americans with Disabilities Act (ADA).

Case Background

In Hill v. Associates for Renewal in Education, Inc., No. 15-7064 (D.C. Cir. 2018), the plaintiff, who wore a leg prosthesis, worked as a teacher and program aide for Associates for Renewal in Education, Inc. (“ARE”). Throughout his employment, Hill worked in a three-story building with no elevator and was responsible for instructing participants in the classroom, on field trips, and during outside activities; overall classroom management; counseling participants on academic and behavioral challenges; and providing administrative and/or clerical support to administrative personnel.

A year and a half before his termination, Hill injured his amputated leg and damaged his prosthesis while walking across ARE’s playground, which resulted in him experiencing severe pain and bruising after standing for long periods of time. As an accommodation, he requested and was assigned a classroom aide and was permitted to hold his classes on the second floor of the building.

A couple of months later, ARE reassigned Hill to a classroom on the third floor. Unlike the other teachers in his program, Hill was not assigned a classroom aide, despite having the largest classroom size among his peers. According to Hill, he contested the reassignment and requested to be moved back to a lower floor and with a teacher aide, but to no avail. Around the same time, Hill began to have disciplinary issues at work and was subsequently terminated.

Hill subsequently filed a pro se complaint against ARE alleging, inter alia, claims for disability discrimination and hostile work environment based on the non-profit’s denial of his requests for a classroom aide and to be reassigned to a classroom on a lower floor. The D.C. District Court denied summary judgment on Hill’s claim for failure to accommodate based on ARE’s refusal to assign him to a lower floor, but granted summary judgment on his claims for hostile work environment and failure to accommodate his request to be assigned a classroom aide. Specifically, with respect to his request for a classroom aide, the district court concluded that Hill “had not adduced any evidence to show that an [a]ide would have been an effective means of addressing the limitations imposed by his amputated leg,” despite Hill’s insistence that the aide was necessary because his disability substantially limited his ability the perform the essential functions of his job “without pain and bruises,” which required walking long distances, standing for long periods of time, and climbing consecutive flights of stairs.

Hill appealed. The Circuit court affirmed in part and denied in part.

The D.C. Circuit Court’s Reasoning

The D.C. Circuit Court concluded that the district court was right to grant summary judgment on Hill’s hostile work environment claim (agreeing that even if ARE had denied Hill a classroom aide and failed to assign him to a lower floor, such behavior did not amount to the type of “extreme” conditions sufficient to constitute a hostile work environment), but wrong to say that Hill had not proffered sufficient evidence for a reasonable jury to conclude that ARE violated the ADA when it refused his request for a classroom aide.

To prevail on a failure-to-accommodate claim brought under the ADA, a plaintiff is required to show that: 1) he suffered a qualifying disability, 2) his employer knew about the disability, 3) he could perform the essential functions of his job, with or without a reasonable accommodation, and 4) his employer refused to make the accommodation. An accommodation is only reasonable under the ADA if it “relate[s] to the disability that creates the employment barrier and, in fact, “address[es] that barrier.”

The Court found that Hill—who alleged he experienced “a hazard of pain and bruising” while standing for long periods of time, pain that resulted from him having to supervise his class without assistance from a classroom aide— had satisfied his burden of sufficiently connecting his disability with his request for a classroom aide and the assistance the aide could provide him in performing the essential functions of his job. The Court, however, found unpersuasive ARE’s argument that Hill did not need the accommodation of a classroom aide because he could perform the essential functions of his job without accommodation, albeit with a lot of pain, and, instead, held that “[a] reasonable jury could conclude that forcing Hill to work with pain when that pain could be alleviated by his requested accommodation violates the ADA” and that “if ARE [had] provided Hill a classroom aide as it did for his colleagues, that aide could help Hill supervise students in the classroom and during outdoor activities, reducing his need for prolonged standing and mitigating the alleged ‘hazard of pain and bruising.’”

While the Court expressed no opinion about whether the classroom aide would have, in fact, constituted a reasonable accommodation for Hill’s disability—leaving that for the jury to decide—it reminded employers and employees, alike, that while “the ADA does not make employers responsible for alleviating any and all challenges presented by an employee’s disability… an employer may be required to accommodate an employee’s disability by ‘reallocating or redistributing nonessential, marginal job functions,’ or by providing an aide to enable the employee to perform an essential function without replacing the employee in performing that function.”

Takeaways for Employers

The ADA continues to be a significant area of liability for employers, as disability-related issues continue permeating today’s workplace. The D.C. Circuit’s decision stands as a reminder to employers to carefully assess the reasonableness of an employee’s request for an accommodation and to strongly consider such requests in the absence of undue hardship. Employers should take care to remember that the “reasonableness” of any request for an accommodation will necessarily depend on the specific circumstances which must be evaluated on a case by case basis. The mere fact that a disabled employee can perform the essential functions of his or her job, albeit with pain or discomfort, may not, by itself, be sufficient to deny that employee a reasonable accommodation.

For more information on this topic, please contact the authors, your Seyfarth Attorney, or any member of the Firm’s Absence Management and Accommodations or Workplace Policies and Handbooks Teams.

 

By Honore Hishamunda and Alex S. Drummond

Seyfarth Synopsis: Plaintiffs in disability discrimination cases often have sympathetic facts on their side. A recent decision out of the United States Court of Appeals for the First Circuit, however, highlighted that courts are tasked with applying the law in such cases even if doing so leads to a loss for a sympathetic plaintiff.

The Americans with Disabilities Act (ADA), among other things, requires employers to provide reasonable accommodations to employees qualified to perform the essential functions of their jobs and prohibits employers from retaliating against employees for exercising their rights under the ADA. Additionally, ADA cases often involve sympathetic plaintiffs. However, a recent First Circuit Court of Appeals decision – Sepulveda-Vargas v. Caribbean Restaurants, LLC – highlighted the importance of applying the law in such cases even where doing so results in a loss for a sympathetic plaintiff.

The plaintiff in the case was an assistant manager for a fast food franchise. One evening while depositing money on behalf of his employer, plaintiff was “attacked at gunpoint, hit over the head, and had his car stolen.” In the aftermath, plaintiff began to suffer from PTSD and depression. He then requested, as a reasonable accommodation, that he be excused from the company’s rotating shift policy (which rotated managers across the franchise’s district map and placed them on two different day shifts, and an evening shift). After initially agreeing to do so, the employer denied the request.

Plaintiff sued claiming a failure to accommodate. Further, the plaintiff alleged that after making his request, he was retaliated against as he was treated poorly by his co-workers. The First Circuit, affirming the District Court, granted employer’s motion for summary judgment on both of plaintiff’s claims. In doing so, the court noted that its decision was “a lesson straight out of the school of hard knocks” and that “[n]o matter how sympathetic the plaintiff or harrowing his plights, the law is the law and sometimes it’s just not on his side.”

The First Circuit held that the employer did not have to provide any accommodation to plaintiff as he was not qualified to perform the essential functions of his job. Specifically, the court found that the ability to work on a rotating shift was one of the essential functions of his job. In doing so, the court noted that (i) both the employer and plaintiff admitted that rotating shifts was an essential function; (ii) the employer’s job applications for assistant managers and advertising for the same highlighted the need to work rotating shifts; and (iii) permitting plaintiff to bypass the requirement would hamper the employer’s ability to flexibly schedule the remaining assistant managers.

The First Circuit also held that the employer did not retaliate against plaintiff for asserting his ADA rights. Specifically, the court found that plaintiff’s allegations – which focused on being scolded by supervisors for bypassing the chain of command, feeling embarrassed by supervisors treatment, and being made to feel as if he was lying about his health conditions – individually and collectively fell short of statutorily prohibited retaliation. In doing so, the court noted that only treatment that could “dissuade[] a reasonable worker form making or supporting a charge of discrimination” or that produces “a significant, not trivial harm” is actionable. Further, the court found that plaintiff’s allegations fell short of this level and instead characterized his allegations as “nothing more than the petty insults and minor annoyances” which are not actionable under the ADA.

This decision highlights that, even in the ADA context, courts must and will apply the law even if doing so results in a loss for otherwise sympathetic plaintiffs.

If you have any questions regarding this area or need assistance evaluating whether to grant or deny long-term or indefinite leave requests, please contact the author, your Seyfarth Attorney, or a member of the Firm’s Absence Management and Accommodations or Workplace Policies and Handbooks Teams.

By Kelsey P. Montgomery

Seyfarth Synopsis: Employee committed to taking opioids loses his job and his disability discrimination lawsuit because he refused to consider alternative pain management.

The “interactive process” required by the Americans with Disabilities Act (ADA), as amended by the ADA Amendments Act, is a two-way street between an employee and his or her employer.  Consistent with this mutual obligation, a federal court in Ohio recently dismissed a lawsuit filed by a former employee who refused to consider alternative pain management for his degenerative disc disease and arthritis in his neck and back.

In Sloan v. Repacorp, Inc., No. 3:16-cv-00161 (S.D. Ohio Feb. 27, 2018), the plaintiff worked as a production manager for Repacorp, which manufactures and prints labels using heavy machinery.  While Sloan’s job required him to spend only a small portion of his time working on heavy machinery, he always worked around this equipment and his working environment was extremely dangerous.  As a safety precaution, Repacorp maintained a policy requiring employees to notify management if they were taking nonprescription or prescription medication.

A year before his termination, Sloan began taking morphine and Vicodin while at work.  Occasionally, he took the morphine in a manner inconsistent with his prescription and he did not have a prescription for Vicodin.  He secured the Vicodin from his mother and a co-worker.  Sloan did not inform his supervisor, or anyone else at Repacorp, that he was taking these medications.  After several months of using these opioids at work, an employee reported to management that Sloan was obtaining Vicodin from his colleague.  He was immediately removed from the manufacturing floor and required to submit to a drug test.

When he tested positive for hydrocodone (an  in Vicodin), Repacorp placed Sloan on leave and referred him to its Employee Assistance Program.  While on leave, Sloan disclosed his morphine prescription.  Fearing a “huge liability,”  Repacorp asked if there were alternative, non-opioid treatments for his pain condition that would not put the company and Sloan at risk.  Although Sloan tried, he was unable to reach his physician to make this inquiry.  He then told the company president, without having consulted his doctor, that he needed to “stay on [his] medication” and that he “wouldn’t stop taking it.”  The company president believed Sloan “chose drugs over his job.”  Because Repacorp did not have any positions that would permit an employee to safely use opioids in the workplace, Repacorp terminated Sloan’s employment following this conversation.

Sloan subsequently filed a lawsuit against Repacorp, alleging disability discrimination under Ohio law and the ADA.  He claimed that Repacorp failed to accommodate his disabilities by refusing to grant his request to use prescription morphine.  Sloan argued that he could have safely performed his job while taking the medication, and that his employer should have conducted a “direct threat” analysis before denying his request.  The Court disagreed, finding that Sloan impeded Repacorp’s ability to investigate the extent of his disability and the breadth of potential accommodations that it might have reasonably afforded to him by refusing to cooperate with the company’s request for additional information.  Without this information, Repacorp could not determine whether Sloan was a qualified individual able to do his job either with or without a reasonable accommodation.  Accordingly, the Court granted Repacorp’s Motion for Summary Judgement and dismissed Sloan’s case.

Employer Take Away

An employer should conduct an individualized assessment to determine whether it can accommodate an employee’s disability.  Had Repacorp simply terminated Sloan for violating its policy against taking medications at work, the Court likely would have decided this case differently.  Thus, it serves as a good reminder for employers to always document their attempts to engage in the interactive process.  If an employee is terminated after refusing to engage with his or her employer, the employer will have a strong defense to any subsequent disability discrimination claim.

For more information on this topic, please contact the authors, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Workplace Policies and Handbooks Team or the Labor & Employment Team.

By Ariel D. Fenster

Seyfarth Synopsis: The Sixth Circuit Court of Appeals recently held that telecommuting can be a reasonable accommodation under the ADA when the employee is able to perform the essential functions of the position remotely and the request is for a finite period. Mosby-Meachem v. Memphis Light, Gas & Water Division, No 17-5483 (6th Cir. 2018).

The Facts

The Plaintiff, an in-house attorney for Memphis Light, Gas & Water Division (MLG&W), requested to work from home for ten weeks while she was on bedrest from pregnancy complications.  MLG&W denied the request.

MLG&W maintained a rather strict policy that attorneys must be in the office from 8:30 am – 5:00 pm.  “However, [it] did not maintain a formal written telecommuting policy at that time, and in practice, employees often telecommuted.”

MLG&W argued that physical presence was an essential function of Plaintiff’s position. Plaintiff stood her ground and stated she was able to perform the essential functions of her position remotely.  In fact, Plaintiff knew she could perform the job remotely.  During the dispute over whether Plaintiff could telecommute, she was also working remotely.  Plaintiff also previously worked remotely for two weeks several years prior.

At trial and in favor of Plaintiff’s disability discrimination claim, the jury awarded Plaintiff $92,000 in compensatory damages and $18,184.32 in back pay.

The Sixth Circuit affirmed.  In its finding, the Court noted that MLG&W failed to engage in an interactive process as required by the ADA to determine if working remotely was appropriate. The Court further noted that one of MLG&W’s key pieces of evidence, the job description, was significantly outdated and unreliable (20 years old outdated!).

Additional Guidance

Unfortunately for employers, there is no bright line test on the issue.  Just a handful of cases have weighed in on the “telecommute dispute.”  The two most notable cases come out of the Sixth Circuit, Williams v. AT&T Mobility Services, LLC, and EEOC v. Ford Motor CoThe cases are distinguishable from Mosby-Meachem for two reasons.  First in Williams and Ford, the employees never previously worked remotely.  Second, the requests to work remotely were for unlimited periods.

Just last month, in Morris-Huse v. Geico, the Middle District of Florida granted Defendant’s Motion for Summary Judgment holding that telecommuting was not a reasonable accommodation because Plaintiff’s physical presence was an essential function of her position.  The Court, like many other courts, reasoned that telecommute disputes are highly fact specific and require a true inquiry into the essential functions of the employee’s position.

For some additional guidance, the EEOC has issued some limited guidance on the matter.

Five Helpful Tips

While there is no hard and fast rule as to whether telecommuting is a reasonable accommodation under the ADA, here are five tips that may avoid putting you in a telecommute dispute:

  1. Evaluate each and every accommodation request on a case by case basis.
  2. Engage in the interactive process with the employee.
  3. Determine if the telecommuting is for a finite period of time.
  4. Think about whether the employee will be able to perform the essential functions of his or her position while telecommuting.
  5. Maintain up-to date job descriptions that accurately reflect the essential functions of each position.

For more information on this topic, please contact the author, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Workplace Policies and Handbooks Team or the Labor & Employment Team.

By John P. Phillips

Seyfarth Synopsis: Complying with the ADA, particularly when an employee has a mental health-related disability, can be challenging. Fortunately, a recent decision out of the Seventh Circuit provides helpful guidance for employers struggling to accommodate employees with mental health issues while at the same time maintaining safe and productive workplaces. The decision makes clear that in the appropriate circumstances, employers can require an employee to undergo a mental health examination as part of a fitness-for-duty test. The decision—and the New Year—also provides a good excuse for employers to evaluate their ADA policies and procedures.

Every year, employers and HR Departments around the country struggle to comply with the requirements of the ADA. At the same time, ADA-related issues continue to become more complicated, and the individualized nature of disability claims mean that even the most accommodating employers can find themselves making tough decisions—and then having to defend those decisions.

On top of this, there has been a steady rise in employees taking prescription drugs or receiving some form of psychiatric or other mental health treatment. In many cases, these employees have no problem performing their jobs, and no issues arise. However, when these employees begin to struggle in their jobs or, even worse, when they engage in problematic and sometimes aggressive behavior toward co-workers, employers must balance ADA compliance with maintaining safe and professional workplaces. This will continue to be difficult, but a recent decision from the U.S. Court of Appeals for the Seventh Circuit provides some helpful guidance.

Background on the Case

In Painter v. Illinois Department of Transportation, the Seventh Circuit recently considered when an employer can required an employee to undergo a mental health examination. In that case, Painter, the plaintiff, was a problematic employee, who snapped and screamed at co-workers, gave them blank stares, constantly mumbled to herself, repeatedly banged drawers in her office, was confrontational and argumentative, and began keeping a detailed log of interactions with co-workers during working time, often drafting more than one entry per hour. Painter even sent a concerning email to her union representative, in which she referenced “something” being “dead” and which prompted her union representative to contact the police.

Faced with numerous employee concerns and continued difficulties with Painter, her employer, the Illinois Department of Transportation (“IDOT”), asked that she undergo a fitness-for-duty exam. Initially, IDOT referred Painter to an occupational-medicine specialist, who in turn referred her to a psychiatrist because he noted that Painter could be bipolar. Eventually, after several doctor visits, administrative leave, and continued co-worker and supervisor complaints, IDOT asked Painter to undergo two fitness-for-duty exams with a psychiatrist. At first the psychiatrist cleared Painter to return to work, but when the complaints and concerning behavior continued (and after Painter sent the threatening email to her union representative), the psychiatrist found that Painter was unfit for duty because of her “paranoid thinking and the highly disruptive behavior which results from her paranoia.” Painter then brought suit, alleging that IDOT’s requirement that she see a psychiatrist violated the ADA.

The Seventh Circuit’s Reasoning

Under the ADA, employers are prohibited from requiring their workers to undergo medical exams, unless the exams are “job-related and consistent with business necessity.” Courts across the country have held that the job-related and business necessity test is a difficult burden for employers to meet. Luckily, the Seventh Circuit took a pragmatic view of IDOT’s decision to require psychiatric exams. The Court stated that when the employer “has a reasonable belief based on objective evidence that a medical condition will impair an employee’s ability to perform essential job functions or that the employee will pose a threat due to a medical condition,” the employer may require a medical exam. The Court also noted that preventing employers from endangering their co-workers is a business necessity, and the Court found that “[e]mployers need not retain workers who, because of a disability, might harm someone; such a rule would force an employer to risk a negligence suit to avoid violating the ADA.”

Applying this legal framework to the facts of the case, the Seventh Circuit ruled that, as a matter of law, the psychiatrist examinations were job-related and consistent with business necessity because IDOT reasonably believed that Painter might be a danger to herself and co-workers. Thus, IDOT did not violate the ADA.

Takeaways and Best Practices

The Seventh Circuit’s decision is welcome news for employers, and it injects much needed common sense into the ADA case law. In particular, employers and HR Departments can consider asking employees to see a psychiatrist for a fitness-for-duty exam in the right circumstances. However, employers must still be careful that any medical examination they require an employee to undergo is directly related to a reasonable belief that the employee cannot perform the essential functions of his or her job.

In addition, there are a number of other proactive steps employers can consider to help ensure that disability-related issues are handled appropriately, such as (1) providing ADA and disability training to supervisors and managers, (2) referring all disability claims to HR, (3) implementing a written procedure for dealing with disability claims, (4) going through the interactive process in all instances, (5) ensuring all job descriptions are up-to-date and accurate, (6) documenting everything, and (7) working with a competent physician or medical professional, as appropriate.

ADA and disability-related issues will only continue to proliferate in today’s workplace. Fortunately, at least one court has recognized the practical necessities employers face when complying with the ADA. By knowing the requirements of the ADA and taking proactive steps to ensure compliance, employers can put themselves in the best possible position to handle all disability-related issues appropriately and minimize any legal risk.

 

By Rachel Hoffer, John P. Phillips and Mahek Bhojani

Seyfarth Synopsis: In a recent win for employers, the Fifth Circuit clarified that opened-ended or unlimited requests to work from home are unreasonable under the Americans with Disabilities Act (“ADA”) and may be rejected during the interactive process. In addition, the Court instructed lower courts to give preference over other factors to the employer’s judgment about what constitutes the “essential functions” of a particular job.

In today’s hyper-connected world, with more and more workers seeking to telecommute, the EEOC and plaintiffs’ attorneys often take the position that working from home should always be a viable and obligatory accommodation under the ADA. Employers, especially those who allow limited telecommuting, often find themselves defending failure-to-accommodate claims after rejecting requests for unlimited telecommuting.  Fortunately for employers, the Fifth Circuit recently ruled that in most cases employers do not have an obligation to allow telecommuting as a reasonable accommodation.  In addition, the Court reaffirmed that, in determining what job functions are truly “essential,” an employer’s judgment takes precedence over all other factors.

This case makes clear that open-ended telecommuting is rarely required under the ADA, and it also reassures employers that it is their call which functions their jobs require. Because it’s up to employers to determine the essential functions of employees’ jobs, employers should take the time to reexamine their job descriptions, make sure they are up to date, and ensure that they accurately reflect the requirements of the job.  This exercise will help employers navigate the interactive process when employees seek reasonable accommodations, and will assist employers in arriving at fair, reasonable, and defensible resolutions of disability-related issues.

Case Background

In Credeur v. State of Louisiana, Renee Credeur, a former litigation attorney for the Office of Attorney General for the State of Louisiana (aka the Louisiana DOJ), brought suit against her employer for allegedly failing to accommodate her inability to work in the office following a kidney transplant, and for harassment and retaliation, under the ADA and the Louisiana Employment Discrimination Law.

In May 2010, Ms. Credeur underwent a kidney transplant and was granted an accommodation to work from home for approximately six months. She then returned to work in the office full time but three years later began experiencing complications.  Starting in October 2013 and continuing through March 2014, because of ongoing medical complications, she was granted permission to work from home.  In March 2014, the Louisiana DOJ told her that she would not be allowed to work from home indefinitely and that she was required to work in the office at least 3-4 hours a day.  She did not return to work, however, but instead applied for and was granted FMLA and additional unpaid leave from April through August 2014.  When her leave ran out in early August 2014, the Louisiana DOJ again asked Ms. Credeur to return to the office and notified her that litigation attorneys could not work from home indefinitely.

Ms. Credeur subsequently brought suit against the State of Louisiana, claiming that she should have been allowed to work from home indefinitely and as long as her doctors recommended it because working in the office was not an essential function of her job. The district court granted summary judgment for the State of Louisiana.  On appeal, the Fifth Circuit affirmed the district court’s decision, holding that the ADA did not require the employer to allow Ms. Credeur to work from home indefinitely.

The Court’s Analysis of the Failure-to-Accommodate Claim

The Fifth Circuit analyzed whether regular office attendance was an essential function of the litigation attorney’s job. Ms. Credeur argued it was not because she had successfully worked from home in the past, and that by crediting the DOJ’s statements and rejecting her testimony, the district court had engaged in impermissible credibility determinations at the summary-judgment stage. In reaching a contrary conclusion, the Court first reaffirmed that “regular work-site attendance is an essential function of most jobs.”  This is especially true, the Court continued, when the position is interactive and involves a significant degree of teamwork.

To determine what constitutes an essential function, the Court noted that the ADA itself mentions only the “employer’s judgment”—and any written job descriptions—on that issue.  The Court also referred to the EEOC’s ADA regulations, which identify several other factors, including the amount of time spent performing the particular function, the consequences of not performing it, and the work experience of past incumbents, among others.  Importantly for employers, the Court explained that “we must give greatest weight to the ‘employer’s judgment.’”  The Court further concluded that “[a]n employee’s unsupported testimony that she could perform her job functions from home” is insufficient to avoid summary judgment.

With respect to the specific position at issue, the Court reviewed contemporary emails from DOJ personnel and consistent testimony of Ms. Credeur’s supervisors to conclude that regular attendance in the office was an essential function of the litigation attorney job, that Ms. Credeur’s continued absence from the workplace created significant problems for her department and prevented her from executing her work effectively and efficiently, and that her request to work from home on an open-ended basis was not reasonable.

Takeaways for Employers

The Fifth Circuit’s decision joins an increasing number of courts holding that regular workplace attendance is an essential function. This decision also establishes that requests for unlimited or open-ended telecommuting in most cases is not a reasonable accommodation under the ADA.  In addition, the decision emphasizes that courts must give weight to the employer’s own judgment about what constitutes an essential job function.  While helpful, employers will not be able to take full advantage of the ruling unless they have accurate, up-to-date job descriptions that identify the essential functions of the job—including factors requiring regular attendance at the workplace.  Take this opportunity to examine and update your job descriptions.

 

By Kevin A. Fritz

Photo-Bush-300x199Signed into law today, 25 years ago, on July 26, 1990, the Americans with Disabilities Act is the most comprehensive civil rights law designed to prohibit discrimination against people with disabilities.

Each year since its passage, more people with disabilities are entering the workforce, earning income, and spending and consuming goods. Good access makes good business sense. By reaching customers with disabilities, businesses obtain more customers and improve their image.

In the spirit of anniversary of this legislation, here are 25 easy ways to make your business more accessible to customers with disabilities:

  1. If the main entrance of your business is not wheelchair accessible but there is an alternate accessible entrance, post clear signage by the main entrance giving directions. Also add the International Symbol of Accessibility at the accessible entrance and include key accessibility information about access, parking, or other services on your website (g., the rooftop bar is only accessible via stairs).
  2. Keep your lowered accessible counter clear at all times. Do not store or display items on this counter.
  3. Where there are corners, steps, and edges, mark these with high visibility contrasting colored material so that they can be easily seen.
  4. If your business provides table or bar seating, make sure you have accessible seating for wheelchair users. A table that provides space underneath the top that is 30” wide, 17” deep, and 27” high, with a top that is between 28” and 34” from the ground is accessible.
  5. Keep walkways and accessible parking access aisles clear and free from clutter or snow, and make sure your premises are well lit. Keep any bushes, trees, or flower arrangements near your business clipped so there are no low hanging hazards for persons who are blind or have low vision, or overgrown bushes obstructing the path of travel for those using wheelchairs or other mobility aides.
  6. Signage for permanent rooms, such as restrooms, must have braille and raised lettering. The background and foreground must contrast.
  7. Doors that are heavy and hard to open can be very difficult to use for the elderly or people who use wheelchairs or mobility aids. Adjust closers so that the doors require less force to open.
  8. In bathrooms, make sure wastebaskets or other moveable objects do not obstruct clear spaces next to the doors. Similarly, in accessible wheelchair stalls, keep the area around the toilet and under the sink clear. Doing so ensures that persons using wheelchairs can safely operate the door and navigate.
  9. If your place of business is not accessible for wheelchair users because there are steps at the entrance, consider how you can provide the goods and services to such customers in an alternative fashion (g., personal shopper, home delivery, or home visit service).
  10. Welcome service animals into your establishment. If you don’t know if it’s a service animal, you can ask two questions: (1) Do you need this animal because of a disability? (2) What work or tasks has this animal been trained to perform?
  11. When choosing signage, language matters. Instead of signs that use the word “handicapped” –which is considered offensive by many people with disabilities – opt for signs that use the word “accessible.”
  12. Consider how persons with disabilities will be evacuated from your facility in an emergency, and include that procedure in your emergency evacuation plan. Make sure your employees know the procedure.
  13. Use people first language when referring to someone with a disability. Refer to a person as an individual with a disability rather than a “disabled person,” or a “handicapped person.” In that vein, refer to a person as one who uses a wheelchair (rather than one “confined” to one) or one who is blind (rather than one who “suffers” from blindness).
  14. When speaking with a person with a disability who has a companion, direct your comments to the person with a disability to that person, not the companion – unless specifically instructed otherwise by the person with a disability.
  15. With all written information, structure content in a logical order using plain English and avoiding long sentences.
  16. People who are deaf make phone calls using a telecommunications relay service (TRS). Accept calls made through such services and treat them the same as other calls.
  17. Be prepared to read menus to customers who are blind or have low vision. Posting menus online provides such customers another way of reviewing the menu (using assistive technology such as screen readers) before they visit the restaurant.
  18. Make sure your employees are prepared to interact with customers who are blind or deaf. They should be ready to read written documents to customers who are blind or have low vision and to exchange notes with customers who are deaf, hard of hearing, or have difficulty speaking. Have a pad of paper handy for this purpose.
  19. People with hearing, speech, or sight disabilities may require extra time or a quiet area to talk with staff. Be patient with the extra attention that might be necessary to understand what is being said and how to assist.
  20. Make sure that your accessible register or checkout lane is always open when the store is open.
  21. Always ask first if a person with a disability needs assistance, never assume.
  22. If a customer who is blind needs to be led to a location in your business, offer the person your arm. Wait for them to accept the assistance.
  23. If a person with a disability requests that you modify a policy or provide additional assistance, consider the request meaningfully. There may be a legal requirement to do it. For example, if your business requires a driver’s license to rent an item, consider accepting another form of state-issued identification for an individual who is blind or physically unable to drive a vehicle.
  24. If you have a pool lift, make sure it is out and ready to be used (e., battery charged and lift uncovered) at all times when the pool is open.
  25. Customer feedback is a great opportunity to learn about your customers and their thoughts on how accessible your business actually is. Be open to receiving feedback and act on it. You may be preventing a lawsuit in the process.

Businesses can make it easier for people with disabilities – as well as other customers – to access and purchase the services or products they have to offer. In short, accessibility pays dividends and makes good business sense.

Kevin Fritz is an associate in the Chicago office of Seyfarth Shaw LLP where he focuses his practice on complex discrimination litigation, workplace counseling and solutions, and access defense.