Tag Archives | interactive process

The EEOC’s wish list for reasonable accommodations

By on January 4, 2012 in Our Blog

In the new year employers can definitely expect to see more EEOC activity with respect to the ADA Amendments.  In particular, the agency will be scrutinizing employers’ efforts to provide reasonable accommodations to qualified individuals with disabilities.  So what exactly is the EEOC looking for?  For one thing, an interactive process that is individualized, not rote.  In other words, employers should not have a “one size fits all” approach to determining what constitutes a reasonable accommodation.  When it comes to offering additional time off as a reasonable accommodation — one of the EEOC’s all-time favorites — do not have a fixed time in mind.  Policies that limit time off to, say, 12 months, are sure to be shot down.  The agency seems to always want to know, “if you were going to give twelve, why not offer fourteen?”  So be flexible, and always err on the side of offering more, not less, time off as an accommodation (unpaid, of course).  Finally, be sure to ask the employee in question what s/he thinks would enable him or her to perform the job effectively.  While employers so not always have to defer to the employee’s request, asking the question demonstrates a good faith effort to find a solution.

Happy New Year!

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The ability to yell at a classroom: an essential job function in the Cleveland schools

By on November 28, 2011 in Our Blog

Last year’s ADA amendments broadened the definition of what constitutes a disability under the law, making it harder for employers to defend lawsuits.  But a recent Sixth Circuit decision reminds us that employers still have discretion in determining the essential functions of a job and whether a reasonable accommodation exists to perform those functions.  In Johnson v. Cleveland City School District, a teacher with cervical myelopathy, a condition with symptoms similar to those of a stroke, became unable to control her classroom.  In particular, she could no longer yell at students (referred to by the school as “verbally controlling resistant students”).  The court accepted the district’s argument that yelling during class was an essential function of the job.  It further deferred to the district’s decision to terminate Ms. Johnson, based on its determination that no reasonable accommodation existed.  Ms. Johnson’s insistence that she could control her classroom in some alternate way notwithstanding, the court gave the employer wide latitude in ascertaining how the job needed to be performed.

This case is good news for employers.  But, they need to remember that the key in dealing with employees with disabilities is engaging in the “interactive process” and trying to come up with a workable reasonable accommodation.  Here, the employer did just that.

 

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What does a picture perfect accommodation look like?

By on September 15, 2011 in Our Blog

ADA cases are so fact-specific it can sometimes be hard to make valuable generalizations.  When it comes to figuring out if a reasonable accommodation exists, though, it’s pretty safe to say it’s almost always about the process.  A recent Ninth Circuit case, FEHA v. Lucent Technologies, is a nice example of a process done right.

The case involved a product installer whose duties required physical strength and stamina (as was appropriately spelled out in his job description).  When the employee suffered a back injury at work, he received a year of paid leave under the employer’s policies.  He kept trying to come back to work, submitting various doctor’s notes stating he could come back with significant lifting restrictions.  Each time he contacted the company, his supervisors debated whether there was a position that could accommodate his limitations.  Each time, they concluded there was not.  Eventually, the employee underwent a couple of work-sponsored functional capacity examinations to determine his lifting abilities.  The results: he could not lift the requisite amount (per the job description).  Accordingly, he was terminated.

The Ninth Circuit — typically known for its employee-friendly stance — held the employer met its obligations under the ADA (and state law) because it interacted with the employee, time and time again, to determine whether there was a position that could accommodate his restrictions.

The case is good news for employers who grapple with accommodation issues, as it demonstrates that at some point, enough is enough and you can terminate.  The key is to not pull the trigger too soon and to engage in a comprehensive interactive process first.

 

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Sixth Circuit: requested accommodation must enable employee to perform essential job functions

By on January 11, 2011 in Our Blog

Last month, the Sixth Circuit upheld the dismissal of an ADA lawsuit filed by a medical resident with Asperger’s syndrome.  In Jakubowski v. Christ Hospital, the plaintiff struggled with his communication and organizational skills.  Accordingly, he was informed his residency was being terminated.  Shortly thereafter, he was diagnosed with Asperger’s syndrome, and requested the defendant hospital accommodate him by increasing the knowledge and understanding of the doctors and nurses who worked with the plaintiff.  The hospital refused, saying it lacked the resources to do so, but offered to help the plaintiff obtain a residency in a field that did not require patient interaction.  The plaintiff sued under the ADA.

The court noted that the requested accommodation would not have helped the plaintiff perform the essential functions of his job.  Accordingly, he was not “qualified,” as defined by the ADA.  The court also noted it was persuaded by the hospital’s expressed concerns over patient safety with respect to the plaintiff.  

The moral of the story is a good one for employers.  Not all accommodations work, and not all requests need to be granted.  Still, employers must engage in the interactive process.

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Reasonable accommodations: an employer’s duty to ensure their effectiveness

By on September 15, 2010 in Our Blog

We all know that under the ADA, an employer has a duty to provide reasonable accommodations to individuals with disabilities.  We also know that the ADA amendments have shifted the focus away from whether an individual has a qualified disability (it’s generally safe to assume that most impairments now qualify) to whether the employer provided an appropriate reasonable accommodation.  (See The Ohio Employer’s Law Blog’s recent post on a case highlighting this issue).  The interactive process, whereby the employer discusses potential accommodations with the employee, has thus taken center stage in ADA litigation. A recent Ninth Circuit case demonstrates just how prolonged this process may need to be.

In EEOC v. UPS Supply Chain Solutions, a deaf employee requested a sign language interpreter for staff meetings.  While UPS denied this request, it provided a note taker for the employee.  It also provided an interpreter for certain specific events.  But the employee was not satisfied with this accommodation.  As a result, he refused to attend staff meetings, and was subsequently disciplined for insubordination.  The EEOC later sued on his behalf, claiming UPS failed to appropriately accommodate him.  A lower court dismissed the case, but the Ninth Circuit reinstated it.

The court described the interactive process as an ongoing dialogue between employer and employee that continues beyond the original provision of an accommodation.  It stated it is incumbent upon the employer to continue to monitor the effectiveness of an accommodation.

This is an extremely broad holding that very well may not apply to other circuits, such as the Sixth.  The case does remind us all, though, that the ADA analysis has shifted to reasonable accommodations and the interactive process.  It is imperative that employers train their supervisors on this issue.

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Shift change to assist employee with commute can be part of employer’s duty to accommodate

By on May 13, 2010 in Our Blog

Last month, a federal appeals court sent a case that had been dismissed in the employer’s favor back to court for a jury trial.  In Colwell v. Rite Aid Corp., the Third Circuit Court of Appeals reversed a grant of summary judgment on an ADA failure to accommodate claim.  Ms. Colwell, a cashier at the drug store, typically worked an evening shift.  Several months into her employment, she was diagnosed with a retinal condition that eventually left her blind in one eye.  Therefore, she requested her shift be changed to daytime hours, as she could no longer safely drive at night.  Her supervisor denied this request, claiming to do so would be unfair to other employees with more seniority.  Ms. Colwell eventually quit, stating in her resignation letter that she had been treated unfairly.  She received no response.  Thereafter, she sued for (among other things), a failure to accommodate under the ADA.

The district court granted Rite Aid summary judgment, holding that the duty to accommodate did not extend beyond the four corners of the workplace.  Since Ms. Colwell could perform her actual job duties without an accommodation, it reasoned, there was no failure to accommodate.  Not so, according to the Third Circuit.  The duty to reasonably accommodate can extend to an employee’s commute as well.  

Two things about this case strike me as important for employers.  First, be very, very careful when it comes to responding to requests for accommodation.  Make sure supervisors understand how to spot such requests, and to pass them up the chain-of-command so they may be adequately analyzed and reviewed.  Second, when an employee states in a resignation letter that she has been treated unfairly, don’t ignore it!  Get counsel involved early.  Doing so may avoid the cost and headache of a full-blown lawsuit later on.

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Allowing employee to catch a little “shut eye” on the job can be a reasonable accommodation

By on April 15, 2010 in Our Blog

Last month, the Northern District of Ohio denied an employer’s motion for summary judgment in a disability discrimination case, permitting the plaintiff to proceed to a jury trial.  Kathleen Maley, a long-term employee at EMH Regional Health Care Center, was terminated for sleeping on the job.  According to Maley, though, she was merely resting her eyes so as to combat her periodic and debilitating migraine headaches.  Maley stated she requested permission to shut her eyes from time to time as a reasonable accommodation, but her employer said no.  EMH did offer to permit Maley to go home for the day when a migraine hit (using up her FMLA and sick time), but Maley did not like this accommodation.

In letting  the case go to a jury trial, the court said Maley’s migraines could qualify as a disability under the law and that permitting her to rest her eyes periodically could have been a reasonable accommodation.  The fact that EMH offered an alternative accommodation (e.g., sending her home for the day) did not alleviate its duty to accommodate.  The court focused on an employer’s duty to engage in an “interactive process” with an employee when discerning the appropriate accommodation.  EMH failed to do so here, and is now faced with the unenviable task of having to explain itself to a jury.

The take-away for employers is be careful when dealing with employees with potential disabilities.  Remember the duty to engage in the interactive process in formulating a reasonable accommodation, and make sure supervisors understand this duty.  If in doubt, call your lawyer!

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Sometimes, employees must ask for accommodations before you have to provide one

By on January 7, 2010 in Our Blog

Unless a disability is obvious, an employee seeking a reasonable accommodation must specifically ask for one, according to a case decided by the D.C. Circuit this week.  In Stewart v. St. Elizabeths Hospital, the plaintiff, a hospital aide in a maximum security wing dealing with mentally-ill criminal patients, claimed the difficult working environment caused her to suffer from a mental disability under the Rehabilitation Act.  She alleged the hospital failed to provide a reasonable accommodation, as it did not transfer her to a different department.  However, the court found the hospital did not know of any alleged disability up until the end of the plaintiff’s employment when she finally requested a transfer.  At that point, the hospital asked for medical documentation and assured her it would assist her once it received the requisite paperwork.  She never provided it, however, as she left work, attempted suicide, and never returned.

Buttressing the court’s finding was the fact that up until the time the plaintiff asked for an accommodation (and thereafter left and never returned), the employer was not on notice of any alleged disability.  The plaintiff did get visibly upset at work on a couple of occasions, but this alone did not alert the employer to a mental disability.

In disability discrimination cases, the courts often refer to the “interactive process,” the dialogue between employer and employee about the need for an accommodation.  When the need for an accommodation is unclear, Stewart indicates it is incumbent upon the employee to directly ask for accommodation and explain the need for one.

However, bear in mind that the duty to provide reasonable accommodations will be more of a focus going forward under the ADA Amendments.  Therefore, if you have a question about a particular employee, it’s always a good idea to check with counsel.  And make sure your managers have received sufficient training about the duty to accommodate so they can, at the very least, spot the issue when it arises.

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‘Tis the season (for seasonal affective disorder, that is)

By on December 28, 2009 in Our Blog

We Clevelanders can probably relate to some of the symptoms of seasonal affective disorder, a form of depression that strikes most commonly during the winter months.  But for some, the so-called “winter blues” represent more than a passing bad mood that roughly corresponds to the number of days that have elapsed with no sign of the sun.  Seasonal affective disorder is a diagnosable and largely treatable form of clinical depression.  And, as with other mental impairments, employers have a duty to reasonably accommodate those who suffer from it under the ADA.  

This was the issue in the recent case of Ekstrand v. Sch. Dist. of Somerset.  Ms. Ekstrand, a first grade teacher, suffered from seasonal affective disorder and provided corroborating medical documentation from her mental health provider.  She requested that her room — which had no windows — be changed so she could be exposed to natural light through  out the workday.  While the school did not accommodate this request, it did make some changes to improve the lighting and air ventilation in Ms. Ekstrand’s room.  Nonetheless, Ms. Ekstrand’s symptoms did not recede and she eventually went on medical leave and ending up finding work elsewhere.

While the district court granted summary judgment to the school district on Ms. Ekstrand’s ADA failure to accommodate claim, the Seventh Circuit reversed.  By failing to provide the requested for accommodation — which was shown to have been possible and virtually costless — the district violated the ADA (or at least that question should be put to a jury).  The “undue burden” standard that excuses an employer from providing a particular accommodation is a high one, and one the school district did not come close to establishing, according to the court.

Employers should also bear in mind that under the recent ADA amendments, the issue courts will be focusing on is that of accommodations, as opposed to whether the plaintiff was covered by the ADA in the first instance.  (See Ohio Employer’s Law Blog dated 9.22.09)  So the next time an employee requests an accommodation, take the interactive process seriously, consider all options, and document your decision-making process.  And, of equal importance, make sure all managers understand their obligations under the ADA.

winter

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