Tag Archives | reasonable accommodation

“But it’s unfair to other employees” not an excuse when it comes to reasonable accommodations

By on January 10, 2012 in Our Blog

Unlike most of the other employment discrimination laws, the ADAA (and its state counterparts) requires what some might consider preferential treatment for covered employees.  While many employers find this concept counterintuitive, a 2010 case (that I blogged about here) makes it clear.  The plaintiff in Colwell v. Rite Aid Corp. asked for a shift change as a reasonable accommodation.  The employer denied the request, claiming the change would be unfair to other employees.  Too bad, said the Third Circuit Court of Appeals in reversing a grant of summary judgment on the ADA failure to accommodate claim.

So what should an employer do when faced with a cry of “it’s not fair”?  First, remember to respect the privacy of the individual.  Not everyone needs to know why Susie needs an accommodation.  Second, make sure managers understand their obligations, so they can politely tell the inquirers that it’s none of their business.  Finally, keep your eye on the reasonable accommodations ball – the EEOC and the courts are doing 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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No-fault is a no no

By on September 13, 2011 in Our Blog

But you already knew that, right?  Hopefully this post simply serves as a timely reminder.  Why timely?  Because as Jon Hyman over at the Ohio Employment Law Blog points out, disability claims have got the EEOC’s attention, big time.  And sometimes, the preferred reasonable accommodation of the Commission (and the courts) is additional leave.

No fault attendance policies basically state that after a certain number of absences, regardless of the reason, the employee will be terminated.  These types of policies used to be very common.  Now, though, they are extremely problematic under the ADA.  Say an employee is absent due to a physical or mental disability.  Before counting that absence against him or her, the employer needs to consider whether a reasonable accommodation can enable the employee to perform the essential job duties.  Maybe, the employee just needs more time off without worrying about being fired as he or she tends to the disability.

This is a tricky area because it is rife for employee abuse.  At the same time, it’s a potential legal landmine for employers.  If in doubt, check with your employment counsel.

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Do employers need to permit use of medical marijuana?

By on November 9, 2010 in Our Blog

The rising lawfulness of medical marijuana raises an interesting issue for employers, at least those in states that  permit use of the drug.  Currently, fourteen states and the District of Columbia fall into this category (Ohio is not one of them, in case you were wondering).  Do employers need to allow employees to smoke pot as a reasonable accommodation under the amended ADA?  While no court has ruled on this issue yet, there is currently a lawsuit pending in Colorado over an employer’s firing of an employee who, while he did not smoke pot at work, admittedly smoked during non-working hours as a way to manage the pain he experienced resulting from an accident that rendered him paralyzed and wheelchair-bound.  Brandon Coats is suing his former employer Dish Network over the termination.  

While I doubt a court would ever hold that an employer needs to permit the use of marijuana in the workplace, I’m not so sure when it comes to after-hours use that does not impact work performance (except in a positive way), as is allegedly the case with Mr. Coats.  This area will certainly continue to develop, as the push to legalize marijuana marches on.

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The ADA and your EAP

By on June 22, 2010 in Our Blog

The Americans with Disabilities Act (ADA) Amendments Act of 2008 broadened the definition of being “regarded as” having a disability.  Accordingly, employers need to take extra care not to inadvertently step into a “regarded as” claim by making statements indicating they perceive an individual as disabled.

One common trap for the unwary employer is discussions with employees concerning its employee assistance program (EAP).  Many employers offer EAPs, wherein employees may seek counseling or other assistance for issues ranging from substance abuse to emotional or behavioral problems to simple stress management.  It can be a wonderful resource for employees.  The key for employers is making sure they avoid making reference to potential mental or physical disabilities.  

Supervisors can, and sometimes should, remind employees of the availability of the EAP.  They can refer to the EAP as a resource for helping employees solve workplace or other problems.  But they should not get any more specific than that (don’t say, e.g., “the EAP can help you get a handle on your depression”).    

Supervisory training can be an excellent way to teach the do’s and don’ts of navigating the ADA in its  expanded form.  Stay tuned for another upcoming post on dealing with the accommodation process.

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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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