reasonable accommodation

By David J. Rowland and Megan P. Toth

Seyfarth SynopsisThe Eleventh Circuit is the next to find a long-term leave of absence is not a reasonable accommodation under the ADA.

Just a few months after a recent and definitive decision by the Seventh Circuit that multi-month leaves of absence, even those that are definite in term and sought in advance, are not required by the Americans with Disabilities Act (ADA), the Eleventh Circuit has issued a similar opinion. This decision may signal a growing trend that courts are attempting to curb the abuse of long-term leaves of absence under the ADA that has been rampant and debilitating to employers for many years.

In the recent Eleventh Circuit case, Billups v. Emerald Coast Utilities Authority, the plaintiff injured his shoulder at work and took Family and Medical Leave Act (FMLA) leave.  He was not able to have corrective surgery during this time, so under the employers medical leave policy, he was granted another three-month medical leave.  However, at the end of this period — a total of six months of leave — the employee was still not medically able to return to work. He told the employer that he had a doctors appoint in a month and would likely be released to work in six weeks, but it was unclear whether he would have any restrictions at that time. Thus, the employer terminated the plaintiff’s employment and he sued, alleging failure by the employer to provide additional leave as an ADA reasonable accommodation.

The Eleventh Circuit affirmed dismissal of the plaintiff’s claim on summary judgment. The plaintiff acknowledged that case precedent says that employers are not required to provide indefinite leaves. However, he argued that these prior decisions involved situations where employees suffered from chronic medical conditions that could continue indefinitely. In this case, the plaintiff contended that an unspecified leave was reasonable because there was a projected end date and once concluded, his medical condition would be resolved without the potential need for additional leave.

The Eleventh Circuit rejected this argument finding that even though the plaintiff would eventually recover, his request was essentially an “open-ended request” for leave of a sufficient time to recover, which is not reasonable under the ADA.  The Court also noted that the employer did not violate the ADA because it already provided six months of leave and the plaintiff inarguably could not perform the essential functions of his job at the time of his termination, with or without a reasonable accommodation and therefore he was not a qualified individual.  Thus, the court found that regardless of the nature of his underlying medical condition and his projected but uncertain recovery, the employer was not required to provide continued long-term leave.

It appears that the Seventh Circuit is not the lone-ranger in its attempt to invalidate the EEOC’s historic and strongly advocated position that long-term leaves are required “reasonable accommodations” under the ADA.  If other circuits continue to follow suit, employers may no longer have a legal obligation to provide lengthy post-FMLA leaves of absence, without the need to justify the denial based on specific business needs.  This case also demonstrates the importance of requesting updated medical information from employees nearing the end of FMLA or other medical leave periods.

If an employee cannot medically substantiate that they can return to work close to the expiration of their FMLA leave, employers may have greater legal flexibility in determining whether or not to accommodate the request. While employers should be aware of this apparently growing trend and may choose to adjust their leave and accommodation approaches accordingly, they still must approach long-term and indefinite leave requests very carefully as there are conflicting decisions from other circuits and the EEOC’s position will remain unchanged unless the U.S. Supreme Court ultimately sides with the Seventh and Eleventh Circuits.

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 Team.

By David J. Rowland and Cheryl A. Luce

Seyfarth Synopsis: The Seventh Circuit sent shockwaves through the EEOC and through the employer community by concluding that multi-month leaves of absence, even those that are definite in term and sought in advance, are not required by the ADA.

To the surprise of many observers, and undoubtedly the EEOC, the Seventh Circuit held last week in Severson v. Heartland Woodcraft, Inc., — F. 3d — Case No. 14-cv-1141 (7th Cir. Sept. 20, 2017) that “a long-term leave of absence cannot be a reasonable accommodation” under the ADA. Id. at 7. Judge Sykes, on behalf of a power panel that included Chief Judge Wood and Judge Easterbrook, analyzed the language of the ADA and concluded that it “is an antidiscrimination statute, not a medical-leave entitlement.” Id. at 2.

The facts of the case are straightforward. Severson had a chronic back condition that pre-dated his employment at Heartland that would occasionally flare up and affect his ability to walk, bend, lift, sit stand, move and work.  In June 2013, Severson experienced such a flare-up and took a leave from work.  Over the summer months, he submitted periodic notes from his doctor informing Heartland that he was receiving treatment and could not work.

Heartland approved his request for 12 weeks of FMLA leave. Two weeks before his leave expired, he informed Heartland that his condition had not improved and that he would need surgery the date that his leave expired, and that the typical recovery time for this surgery was at least two months.  Heartland notified Severson the day before his surgery that his employment with Heartland would end when his FMLA leave expired the following day and invited him to reapply with the company when he recovered from surgery and was medically cleared to work. He recovered several months later and, instead of reapplying, filed a lawsuit.  The district court awarded summary judgment in favor of Heartland on Severson’s ADA claims and the Seventh Circuit affirmed.

The EEOC filed an amicus brief and participated in oral argument.  In its opinion, the court took special care to explicitly reject the EEOC’s argument that a long-term medical leave of absence should qualify as a reasonable accommodation when the leave is of a definite, time-limited duration, requested in advance, and likely to enable to perform the essential functions of his job when he returns.  The court found the EEOC’s reading of the statute to equate “reasonable accommodation” with “effective accommodation,” a concept rejected by the Supreme Court in U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002). Severson at 9.  More importantly, the court found that by the EEOC’s logic, the length of the leave did not matter and therefore transformed the ADA into a medical leave statute—“in effect, an open-ended extension of the FMLA”—which the court found “untenable.” Id.

The court left open the possibility that “intermittent time off or a short leave—say, a couple of days, or even a couple of weeks—may, in appropriate circumstances, be analogous to a part-time or modified work schedule.” Id. at 8.  But, relying upon prior precedent from Byrne v. Avon Prods., Inc., 328 F.3d 379, 381 (7th Cir. 2003), the court found that the “[i]nability to work for a multi-month period removes a person from the class protected by the ADA.” Id.

This decision is the firmest and most comprehensive rebuke of the EEOC’s long-held and vigorously pursued position that long-term leaves are a required form of reasonable accommodation. The Chicago office of the EEOC, in particular, has leveraged multi-million dollar settlements in the past after suing employers that actually had long term, “multi-month” extended leave policies in place, but were unwilling to extend leaves beyond six months or even a year.  This avenue of ADA attack now appears blocked in the Seventh Circuit.

Employers must proceed with great caution in this area for several reasons. First, the Seventh Circuit’s decision arguably conflicts with decisions in the First, Sixth, Ninth and Tenth Circuits (at least according to the EEOC’s amicus brief at pp. 15-16 ).  As a result, employers with a national footprint cannot assume this same rule will apply outside of the Seventh Circuit.  Second, Severson could seek rehearing en banc, likely with the EEOC’s support.  Given the panel in Severson, though, a rehearing bid may be an uphill battle.

For more information on this topic, please contact the authors, your Seyfarth Attorney or a member of the Firm’s Absence Management and Accommodations Team.

By Tracy M. Billows and Megan P. Toth

Seyfarth Synopsis:  If your company provides parental leave benefits beyond what is required by law, it is important that the company’s policies and practices ensure male and female employees are being treated consistent with the prohibition of discrimination based on sex.

On August 30, 2017, the EEOC filed suit against Estée Lauder in the U.S. District Court for the Eastern District of Pennsylvania claiming that the cosmetic company discriminated against male employees by implementing a paid parental leave policy that provides lesser parental leave benefits to male employees than to female employees.  EEOC v. Estée Lauder Companies, Inc., No. 2:17-cv-03897-JP (E.D. PA)

The paid parental leave policy at issue in this case–which was implemented by Estée Lauder in 2013–provides “primary caregivers” six weeks of paid parental leave for child bonding and only offers “secondary caregivers” two weeks of paid leave for child bonding.  In addition, “primary caregivers” are also provided with flexible return-to-work benefits that are not similarly provided to “secondary caregivers.” On its face, this policy does not appear to provide different benefits to new mothers or female employees and new fathers or male employees; however, in practice, the company only allows male employees to receive “secondary caregiver” leave benefits under this policy.

This case arose when a male employee’s request for six weeks of child-bonding leave as the “primary caregiver” was denied and he was only allowed to take two weeks of bonding leave.  According to the lawsuit, the company told him that the “primary caregiver” designation only applied in “surrogacy situations.”  The EEOC claims that the practice of only allowing men to take two weeks of paid leave, while allowing women six weeks and flexible return-to-work benefits violates the Civil Rights Act of 1964 and the Equal Pay Act of 1963.

The EEOC has made it clear that addressing sex-based pay discrimination, including benefits such as paid leave, is a priority.  So it is not surprising that the agency has gone after one of the world’s leading cosmetic companies over this issue and this is probably not the last suit of its kind. With the rising corporate trend of providing generous parental leave benefits to employees, it is important companies who are following this trend to be mindful of their policies and potential claims of disparate treatment and/or disparate impact.

This topic has been on the horizon for some time now and the EEOC is starting to take action. If your company provides parental leave benefits beyond what is required by law, it is important that you review those policies and practices now to ensure male and female employees are being treated consistent with the prohibition of discrimination based on sex.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Absence Management & Accommodations Team or the Workplace Policies and Handbooks Team.

By Erin Dougherty FoleyAdam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: The Minnesota Supreme Court found that a job applicant need only prove that the employee’s interest in a 12-week maternity leave was the “substantial causative factor” that “actually motivated” the employer’s decision to rescind her job offer and did not need to show anger or hostility about pregnancy under the Minnesota Human Rights Act.

In a recent Minnesota Supreme Court case, LaPoint v Family Orthodontics, P.A., A15-0396 (Apr. 5, 2017), a plaintiff challenged an orthodontist’s decision to rescind her job offer after learning she was pregnant and would take maternity leave.  The plaintiff argued that she had been discriminated against on the basis of her pregnancy because her pregnancy played a role in the employer’s  decision to rescind her job offer.  The district court ruled for the employer at a bench trial!

In setting the standard of proof, the Court relied on Goins v. West Grp., 635 N.W.2d 717 (Minn. 2001) and Anderson v. Hunter, Keith, Marshall & Co., 417 N.W.2d 619 (Minn. 1988). Goins required that a plaintiff prove that the pregnancy “actually motivated” the employer’s decision not to hire. Anderson required that plaintiff demonstrate that the pregnancy was “a substantial causative factor” in the employment decision.

The Court rejected the notion that the pregnancy must be a “but-for” cause of the employer’s conduct. As such, the plaintiff need not prove that the employer would have hired her absent unlawful discrimination in order to establish liability, and “proof by the employer that it would have made the same decision absent a discriminatory motive is no defense.”

According to the Court, the employer stated, on three separate occasions, that the plaintiff’s failure to disclose her pregnancy (1) was one of the “two things [that] really kept [her] from sleeping well”; (2) was one of her “concerns”; and (3) left her “confused,” one of “two concerns” that together constituted “[t]he reason why [she] withdrew the job offer.” Further, the plaintiff argued that “rescinding a job offer because a person fails to disclose a pregnancy is illegitimate discrimination on the basis of sex.” More so, the district court found that the defendant “questioned why plaintiff did not bring [her pregnancy] up initially so they could discuss leave of absence issues at that time,” but that “[h]er concern was the [effect of the] length of the leave sought by plaintiff on the practice.”

The Court recited that the defendant “did not demonstrate any animus toward plaintiff because of her pregnancy. Her overriding concern was the disruption a twelve week maternity leave would have on her practice and the impact upon her employees should she deviate from the Clinic’s longstanding policy of six weeks.”

Finally, the Court concluded that it was unable to determine whether the district court, if it had applied the correct law regarding animus, would have made the same findings of fact. Accordingly, the Supreme Court remanded the case.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Absence Management & Accommodations Team or the Workplace Policies and Handbooks Team.

By John P. Phillips

Seyfarth Synopsis: For several years now, employers and the EEOC have been at odds over whether employers must automatically reassign a disabled employee to an open position as a reasonable accommodation, or whether employers can maintain a policy of hiring the most-qualified individual for the position, by requiring a disabled employee to compete for open positions against other interested employees. Fortunately, in two recent decisions, the Eleventh Circuit and a Texas district court have helped clarify that an employer’s policy of hiring the most-qualified individual for a job does not violate the ADA.

Many employers post all open positions at their facilities and allow all qualified employees to bid on any job they desire. This allows the company to hire the right employee into the right position, and allows everyone to know that promotions and job opportunities are decided by merit.  These bidding policies help the employer promote open and fair policies, and they promote efficiency, performance, and trust in the workforce.

However, in recent years, the EEOC has challenged these policies, alleging that they discriminate against disabled employees. Accordingly to the EEOC, employers must automatically place even a minimally-qualified disabled employee into an open position as a reasonable accommodation, even if the employer would otherwise open the position to bidding by all employees and even if there are other better-qualified candidates who are interested in the job.

The EEOC’s position has naturally caused significant concern for many employers with open bidding policies. Fortunately, two recent decisions reinforce the right of employers to hire the best candidate for the job.

In December, the Eleventh Circuit Court of Appeals held that “the ADA only requires an employer to allow a disabled person to compete equally with the rest of the world for a vacant position” and does not require the employer to automatically reassign an employee without competition.

In that case, EEOC v. St. Joseph’s Hospital, Inc., the plaintiff was employed as a clinical nurse in the hospital’s psychiatric ward.  The plaintiff developed spinal stenosis, for which she required the use of a cane.  St. Joseph’s had significant safety concerns related to the presence of a cane in the psychiatric ward, and eventually determined that it was too dangerous to allow a cane in the ward.  The hospital gave the plaintiff 30 days to bid on another position at the hospital.  Although there were over 700 positions available, the plaintiff waited three weeks to apply for any jobs at all, and ultimately only applied for three jobs within the 30-day time period.  She was not hired for any of the positions and eventually was terminated.

Following a jury trial, the EEOC argued on appeal that the ADA requires reassignment without competing against non-disabled employees. The Eleventh Circuit ruled against the EEOC.  The Court outlined a multi-part test to determine whether the requested accommodation—automatic reassignment to an open position without competing against non-disabled employees—was reasonable:

  1. The plaintiff must show that his or her requested accommodation is reasonable on its face, i.e., “ordinarily or in the run of cases.”
  2. If the plaintiff does so, the burden shifts to the employer to show that granting the accommodation would impose an undue hardship under the facts of the particular case.
  3. If the plaintiff does not carry his or her burden at step one, the plaintiff can still prevail, provided he or she can show that there are special circumstances in that particular case making the accommodation reasonable.

The Eleventh Circuit affirmatively found that “[r]equiring reassignment in violation of an employer’s best-qualified hiring or transfer policy is not reasonable ‘in the run of cases.’” Consequently, the Court found that where the employer has a merits-based selection policy, the ADA only requires the employer to allow a disabled person to compete equally for a vacant position.  And in that case, given that the plaintiff had not attempted to show any special circumstances that warranted requiring the hospital to ignore its best-qualified hiring policy, the Court found that the hospital had not violated the ADA by requiring the plaintiff to bid for an open position.

In March, in EEOC v. Methodist Hospitals of Dallas, the Northern District of Texas was faced with an almost identical fact pattern.  There, the Court noted that the Fifth Circuit had not directly addressed the issue, but found that “the weight of Fifth Circuit authority holds that the ADA does not entitle a disabled employee to preferential treatment.”  In making its holding, the Court adopted the reasoning in the Eleventh Circuit’s St. Joseph’s Hospital decision in full, and held that Methodist’s policy of requiring disabled employees to compete with non-disabled applicants in order to hire the best candidate does not violate the ADA.

Taken together, these two recent decisions should provide comfort to employers with open bidding policies. However, employers should be aware that despite these set-backs, the EEOC is not likely to agree that open bidding policies comport with the ADA.  The federal courts have not yet agreed uniformly on this issue, and the EEOC consistently cites to cases out of the Seventh Circuit, the Tenth Circuit, and the D.C. Circuit to support its position.  Although these cases have been distinguished by the Eleventh Circuit and the Northern District of Texas, employers in those districts should be especially alert when dealing with reassignment requests from disabled employees.

In addition, whenever presented with a request for accommodation, employers should not jump to any conclusions or make any rash decisions. It is always a best practice to refer all disability claims to HR, go through the interactive process, stay in communication with the disabled employee, and, above all, document, document, document.

Fortunately, these decisions strengthen employers’ ability to maintain merits-based selection policies, and will help companies continue to hire the right employee into the right position.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Absence Management and Accommodations Team, the ADA Title III Team, or the Workplace Counseling & Solutions Team.

 

By Christopher W. Kelleher, Tracy M. Billows, and Joshua D. Seidman

Seyfarth Synopsis: The Illinois General Assembly will consider the proposed Healthy Workplace Act which, if passed into law, will require most Illinois employers to provide paid sick leave to their employees.

Illinois legislators have caught the paid sick leave bug that has been going around the Country. Sponsors from both chambers of the Illinois legislature have introduced a bill called the Healthy Workplace Act which, if adopted, will mandate paid sick leave for Illinois workers.

Under the proposed law (House Bill 2771/Senate Bill 1296), employees would be entitled to a minimum of five “paid sick days” each year to: (1) care for their own physical or mental illness, injury, or health condition, or seek medical diagnosis or care; (2) care for family member for the same reasons; (3) attend a medical appointment for themselves or family members; (4) miss work due to a public health emergency; or (5) miss work because the employee or a family member has experienced domestic violence abuse.

Employees would accrue one hour of paid sick time for every 40 hours worked. This includes FLSA-exempt employees, who would be deemed to work 40 hours each week for accrual purposes in most cases.

There is some potential for tension if and when the new law is passed.

For instance:

  • Employees will be entitled to determine how much sick time they need to use, but employers will be allowed to set a “reasonable minimum increment” which cannot exceed four hours per day;
  • Employers will also be able to ask for “certification” of the illness, injury, or health condition when employees take paid sick leave for three consecutive workdays. However, “[a]ny reasonable documentation” will suffice if it meets certain criteria;
  • Employers must treat the health information of both employees and their family members confidentially, and cannot disclose this information without the employee’s permission;
  • Paid sick days must be provided at the employee’s oral request, but if need for a sick day is foreseeable, the employee must give at least seven days’ notice before leave begins. If need for a sick day is not foreseeable, however, then employees should provide notice “as soon as is practicable”;
  • And finally, while employers must not discriminate or retaliate against employees for using paid sick leave, they may discipline employees for abusing paid sick leave.

The Bill, which has accumulated dozens of co-sponsors in both houses, was presented for a second reading on March 29, 2017. Stay tuned for further developments.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Absence Management & Accommodations Team or the Workplace Policies and Handbooks Team.

 

By Anne S. Bider, Robert A. Fisher, and James M. Hlawek

Seyfarth Synopsis: On February 5, 2017, in M.C.A.D. v. Country Bank for Savings, the Massachusetts Commission Against Discrimination (“MCAD”) held that an employer engaged in unlawful disability discrimination when it terminated an employee whose medical leave had ended and who could not provide a definite return to work date. The MCAD found that the employer had an obligation to engage in the interactive process to determine if extending the requested leave was a reasonable accommodation for the employee’s disability.

What should an employer do when an employee whose medical leave has ended cannot provide a return to work date? Fire the employee?  Not so fast.  The MCAD recently found that it was unlawful for an employer to terminate such an employee without engaging in the interactive process to determine if an extension of the employee’s leave would be reasonable.

The Facts

The Complainant was a loan coordinator for Country Bank for Savings. In September 2009, she went on an approved 12-week FMLA leave to give birth.  The leave was scheduled to end on November 30, 2009.  In October, following delivery of her child, Complainant was diagnosed with post-partum depression and notified the Bank that she would not be able to return to work on November 30, as planned.  She provided the Bank with documentation from her medical providers stating that, due to her condition, she would be out of work indefinitely.

On December 11, the Bank advised Complainant that, because her latest documentation did not provide a return date, her employment would be terminated if she did not return to work by December 21. In response, on December 17, Complainant called the Bank and told her supervisor that she hoped to return to work by mid-January.  The same day, Plaintiff’s attorney addressed a letter to the Bank requesting a short extension of Complainant’s leave as an accommodation to her post-partum depression, pending upcoming evaluations from Complainant’s medical providers in mid-January.  The letter stated that after Complainant’s mid-January appointments, she would advise the Bank whether a definite return date could be set.

On December 22, the Bank terminated the Complainant’s employment without further discussion with Complainant because she had not returned to work by December 21 and had not provided a return to work date.

The MCAD’s Decision

The MCAD held that in terminating Complainant’s employment without engaging in dialogue about her return to work date, the Bank discriminated against Complainant on the basis of disability in violation of state law. The MCAD found that once Complainant identified her disability and requested an extended leave, the Bank was obligated to engage in a dialogue with Complainant to determine if the extended leave was a reasonable accommodation.  Here, the Bank mistakenly relied on the 12-week period required by the FMLA as a measure of reasonableness and assumed that all requests for leave beyond the 12-week period were automatically unreasonable.  In addition, the Bank failed to produce any evidence that an extension of Complainant’s leave until mid-January would impose an undue burden on its operations or finances.

What This Decision Means For Employers

This decision reminds employers not to be rigid in administering medical leave. In some circumstances, an extended leave — even beyond the FMLA’s 12-week limit — may be a reasonable accommodation.

Further, the decision demonstrates the importance of the interactive process. Even when an employee is unable to provide a return to work date following exhaustion of medical leave, employers have an obligation to continue the interactive process to determine if a reasonable accommodation is possible.  In this case, the employer should have extended the Complainant’s medical leave for a couple of weeks because there was at least a suggestion that she could have provided a return date by then, unless doing so would have imposed an undue burden.  As the MCAD acknowledged, if the Complainant could not provide a return date by then and had no prognosis for improvement, the obligation to extend her leave likely would have ended.

In short, the decision shows the importance of flexibility, reasonableness, and interaction in dealing with employees who are unable to return from medical leave.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Absence Management & Accommodations Team or the Workplace Policies and Handbooks Team.

By Bridget M. Maricich

Seyfarth Synopsis: Though only an informal guidance, this resource document reminds employers of the EEOC’s expansive interpretation of what constitutes a reasonable workplace accommodation. Employers should continue to meaningfully engage in the interactive process with any employees seeking workplace accommodations for a physical or mental disability and assiduously document those efforts.

Citing an increase in charges of discrimination based on mental health conditions during fiscal year 2016, the EEOC released a “resource document” on December 12, 2016, explaining “workplace rights” for individuals with mental health conditions under the Americans with Disabilities Act (ADA).  The resource document – Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights – is presented in a question and answer format intended for applicants and employees.  The informal guidance is a useful primer for understanding the EEOC’s expanding stance on employer obligations to provide reasonable workplace accommodations.

At first blush, the resource document is nothing new. In question 1, the EEOC reiterates that employers are prohibited from discriminating against applicants and employees because of a mental health condition.  The document also notes that employers do not have to hire or retain individuals who are unable to perform the essential functions of a job or who pose a direct threat. However, the Agency strongly caveats that employers must “rely on objective evidence,” “not myths or stereotypes,” that would indicate that an individual is unable to perform a job or poses a significant safety risk, even with a reasonable accommodation, before taking an adverse action against the individual.

Question 2 addresses the right of an applicant or employee to keep a mental health condition private. The EEOC notes that under the ADA, employers are only permitted to ask questions about the medical or health information of an applicant or employee when (1) an individual requests a hiring process or workplace accommodation; (2) when the employer requests medical information or testing post-offer, but pre-employment, provided everyone entering the same job category is subject to the same requirement; (3) when the employer is engaging in affirmative action for persons with disabilities; and (4) when there is “objective evidence” that the employee may not be able to do his or her job or poses a safety risk in the workplace because of his or her condition.

Questions 3 through 6 respond to hypothetical questions about when a reasonable accommodation may be required, how to request one, and the employer’s obligation to respond, even when no accommodation exists that permits an employee to fulfill the essential functions of a position. The EEOC’s responses here reveal the breadth of the Agency’s interpretation of the ever-vexing question of what constitutes a reasonable accommodation.  In the first instance, in response to Question 3, the EEOC, without using the word “disability,” states that an individual is entitled to a reasonable accommodation for “any mental health condition that would, if left untreated, ‘substantially limit’ your ability to concentrate, interact with others, communicate, eat, sleep, care for yourself, regulate your thoughts or emotions, or do any other ‘major life activity.’”   The EEOC notes that the mental health condition need not be either permanent or severe to constitute “substantially limiting” and that conditions like major depression, post-traumatic stress disorder (PTSD), bipolar disorder, schizophrenia, and obsessive compulsive disorder (OCD) should “easily qualify.”

The answer to Question 3 also provides broad, if imprecise, definition of reasonable accommodation, defining it as simply “some type of change in way things are normally done at work” and providing standard examples such as altered break and work schedules, quiet office space, changes in supervisory methods, along with some more controversial recommendations, such as choice of specific shift assignments and permission to work from home. And in Question 6, the Agency re-states the EEOC’s vague standard that an employee who is unable to perform the essential functions of his or her position, even with an accommodation, may be entitled to an indeterminate amount leave – independent of FMLA leave – that “will help you get to a point whether you can perform those functions.” The document also notes that failing leave, if an employee is “permanently” unable to perform his or her job, he or she may be entitled to job reassignment.  Importantly, the Agency does not caveat here that any request for reasonable accommodation must be fundamentally intended to facilitate the employee’s performance the essential functions of the job. Rather, the document implies that by virtue of having a mental health condition an individual or employee may be entitled to ask for some “change in the way things are normally done at work.”

Questions 4 and 5 fortunately return to well-worn ADA principles. The EEOC directs employees who need a reasonable accommodation to ask for one and encourages employees to do so before workplace difficulties arise because “an employer does not have to excuse poor job performance, even if it was caused by a medical condition or the side effects of medication.” The EEOC also notes that  employers are entitled to ask for health care provider documentation verifying the employee has a mental health condition and requires a workplace accommodation because of it.  The document provides the link to what it terms the “companion document” –The Mental Health Provider’s Role in a Client’s Request for a Reasonable Accommodation at Work .  The EEOC suggests that individuals provide the document to their health care providers when seeking medical documentation in relation to a request for a reasonable accommodation.  The document also reminds that if a reasonable accommodation, justified by relevant medical provider documentation, would help an employee do his or her job, the employer must implement it barring “significant difficulty or expense.”

Though only informal guidance, this resource document reminds employers of the EEOC’s expansive interpretation of what constitutes a reasonable workplace accommodation.   What does that mean for employers? Employers should continue to meaningfully engage in the interactive process with any employees seeking workplace accommodations for a physical or mental disability and assiduously document those efforts.  In light of this guidance, however, employers should strongly consider seeking trusted legal counsel before denying a requested accommodation or taking adverse action against an employee who has or is seeking an 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 Team.

By David J. Rowland

Seyfarth Synopsis: A divided panel of the Eighth Circuit recently decided that an employer may be required to assume or infer from the circumstances that an employee is seeking a reasonable accommodation – even when no affirmative request is made.

The courts and the Equal Employment Opportunity Commission (EEOC) have made clear for decades that an employer’s obligation to engage in the interactive process under the Americans with Disabilities Act of 1990 (ADA) is not triggered until the employee seeking reasonable accommodation actually requests assistance.

To quote a recent case decided by the EEOC: “generally an individual with a disability must request a reasonable accommodation by letting the [employer] know the individual needs an adjustment or change at work for a reason related to a medical condition” Adina P. v. Brennan, 2016 EEOPUB LEXIS 336 (EEOC 2016).  To be sure, no “magic words” have been required and no court would expect each employee to ask for a “reasonable accommodation” by those words, but, until now, courts have uniformly required that an employee at least indicate that she wants help or assistance because of a disability.

Earlier this month, though, a divided panel of the Eight Circuit Court of Appeals, lowered the bar substantially and held that a jury should determine whether an employee requested a reasonable accommodation by simply notifying her supervisor that she could not obtain a required CPR certification until after she completed physical therapy. See Kowitz v. Trinity Health, et al., Case No. 15-1584 (8th Cir. October 17, 2016). The employee never asked to be given extra time to complete the certification, nor to be transferred to another position that did not require CPR certification.  Still, the majority held that a reasonable jury could find that the employer “understood” the employee’s communications to be a request for accommodation. Id. at p. 9, n. 1.

The dissenting judge reiterated the point that virtually every employer would assume to be true: “an employee who wants additional assistance cannot ‘expect the employer to read her mind and know she secretly wanted a particular accommodation and then sue the employer for not providing it” Id. at p.12 (citation omitted).

Blurring a Bright Line

Thus, what was a bright line rule has been blurred, but, as usual, the particular facts of the case may have driven the majority to this hand-scratcher of a result.

The plaintiff was a respiratory therapist with cervical spinal stenosis, She had undergone surgery, and had returned to work on October 19, 2010 with the restriction of a reduced schedule until November 29, 2010 (yes, the dates may be important).   In the meantime, on November 19, 2010, her supervisor posted a memo directing all of the respiratory therapy department’s employees to provide updated copies of their basic life support (BSR) certifications by November 26 and added :”If you are not up to date you will need to submit a letter indicating why you are not up to date and the date you are scheduled to take the BSR class”.

On November 30, having already passed the written component of the BSR test, the employee wrote a letter to her supervisor indicating that she “will not to be able to do the physical part of the BSR” until cleared by her doctor, with whom she had an appointment on December 2 and also thanked the supervisor “for understanding [her] condition”. On December 2, the employee’s doctor opined that she could not take the physical portion of the BSR test until she had completed at least four additional months of therapy.  The employee left a voicemail with the supervisor that evening.  The very next day, December 3, she was terminated for failing to provide the certification.

This sequence of events (and perhaps the seemingly harsh and abrupt decision to terminate) lead the majority to conclude that the employee’s written notification of the need for clearance and her follow-up communication about needing four months of therapy “could readily have been understood to constitute a request for reasonable accommodation”. Id. at 9.

Bad facts often make for bad law, and many employers in the same circumstances would have taken the logical step of engaging the employee in an interactive dialogue. But, as the dissent rightly noted,  the idea that there can be such a thing as an implied or understood  request for accommodation generates “regrettable uncertainty” by “eliminating the requirement of a clear request for accommodation”.  Id. at 13.

Employers take heed: a request for reasonable accommodation may be implied by the circumstances in some instances.  As a result, it is more dangerous than ever to ignore the warning signs that an employee is seeking help.

For more information on this topic, please contact the author, your Seyfarth Attorney or a member of the Firm’s Absence Management and Accommodations Team.

 

By Johanna T. Wise and Ryan L. Behndleman

Seyfarth Synopsis: Do employers have to let employees sleep on the job as a reasonable accommodation for a disability? While far from being decided, a recent federal case in the Southern District of New York addresses the issue.

Let’s face it, we all get tired from time to time. While on the clock, however, sleeping at work is a practice that employers invariably frown upon. Earl Beaton learned this the hard way when he was fired from his job with New York City’s Metro Transit Authority (MTA) after briefly nodding off during his shift. But Mr. Beaton’s situation is not as clear as it seems because he fell asleep due to a side effect caused by his necessary prescription medication. Mr. Beaton did not intend to take his termination lying down, so he filed suit against his former employer for discriminating against his disability.

Background

Mr. Earl Beaton was diagnosed with schizophrenia and depressive disorders in 1985. Without medication, Beaton is prone to psychotic episodes and delusions. To counteract these symptoms, Beaton was prescribed an anti-psychotic medication called Fluphenazine, which can cause drowsiness.

Beaton disclosed his illness to his employer in 1995, and was able to work for many years without incident while taking the medication as prescribed. In 2000, Beaton was even promoted to a position as a station agent. Then, during the overnight shift on December 23, 2013, Beaton encountered a problem. Around 1 a.m. Beaton experienced severe schizophrenic symptoms and took a pill to counteract those symptoms. Three hours later, the symptoms had not subsided, so he took another pill. The high dosage made Beaton extremely drowsy, and it appeared that he briefly nodded off. It was at this moment that Beaton’s supervisor approached and caught him sleeping on the job.

After disciplinary hearings, although Beaton denied that he was actually sleeping, MTA terminated his employment. He then filed a charge with the EEOC and soon thereafter filed suit in the Southern District of New York.

MTA’s Motion To Dismiss

Upon service of the complaint, MTA filed a motion to dismiss for failure to state a claim upon which relief can be granted. In this stage of a case, the court generally relies on the allegations made by the plaintiff to decide whether there are enough facts to sustain plausible claims. Using this standard, the court dismissed Beaton’s failure to accommodate claim but allowed the discrimination and retaliation claims to survive.

Many employers may learn of this decision and think, “What?! I can’t terminate an employee for sleeping on the job?” But rest assured, this case is far from decided. When a court decides a motion to dismiss, it looks for one key issue: Does the plaintiff have plausible claims based on what the plaintiff alleged in his complaint? Further, the court must view these allegations in the light most favorable to the plaintiff.

In his judicial opinion, Judge Edgardo Ramos assessed Beaton’s discrimination claim by using a well-established four-part test: 1) Was the plaintiff a member of a protected class? 2) Was the plaintiff qualified for the position? 3) Did the plaintiff suffer adverse employment action? and 4) Is there some minimal evidence to support an inference of discrimination? As you can see, the bar is extremely low for what will pass muster under this test. While MTA argued that Beaton’s need to sleep made him unqualified for his position, the court noted that his 13 years of satisfactory performance established that he was qualified to perform the essential functions of his job.

As for the retaliation claim, to survive a motion to dismiss the plaintiff only needs to show that he engaged in protected activity (i.e. filing a grievance with a labor union or filing an EEOC claim) that the employer was aware of, and that it caused the employer to take adverse employment action against him. Judge Ramos noted that this claim survived because there is the possibility that the termination decision occurred after Beaton engaged in protected activity, and that was enough to raise a plausible claim.

So What Happens Next?

This case is far from over. The surviving claims will enter the discovery phase to allow each side to collect evidence to support their claims or defenses. The case could be decided on summary judgment or settled at any stage of the litigation process.

It is important to note that in his opinion regarding the motion to dismiss, Judge Ramos did not decide whether employers need to allow their employees to sleep on the job as a reasonable accommodation. So what should employers do? Just as before, employers should engage in an interactive process if an employee or applicant with a disability requests an accommodation to determine if the employee can be reasonably accommodated without causing an undue hardship. Employers should also carefully review and consider consulting with an attorney before taking adverse employment action where the underlying behavior at issue is tied to a disability. But at this point, there is no need to lose any sleep over this case.

For more information on this topic, please contact the authors, your Seyfarth Attorney or a member of the Firm’s Absence Management and Accommodations Team.