Tag Archives: reasonable accommodation

April 19, 2017

Retroactive Leniency Is Not A Reasonable Accommodation

By Brad Cave

Is an employer required to excuse misconduct that was the result of the employee’s disability? The Tenth Circuit Court of Appeals recently looked at this issue and came to an interesting conclusion.

Janna DeWitt has Type I diabetes and is insulin dependent. Beginning in 1997, DeWitt worked for Southwestern Bell Telephone Company (SW Bell) as a customer service representative in its Wichita, Kansas call center. Recognizing that DeWitt had a disability covered by the Americans with Disabilities Act (ADA), SW Bell permitted her to take breaks as needed to eat or drink in order to raise her blood sugar level. SW Bell also granted DeWitt FMLA leave which she took intermittently for health issues related to her diabetes.

Last Chance Agreement

In 2010, DeWitt made an error by failing to shut down service on a customer’s account after the customer cancelled service. Failure to remove a service plan after cancellation was known as a cramming violation under SW Bell’s Code of Business Conduct and was a terminable offense. DeWitt was suspended following her cramming incident until she could address the issue with her supervisors in what the company called a “Day in Court.” Her Second and Third Line Supervisors decided to place DeWitt on a Last Chance Agreement under which any additional failure to perform satisfactorily could lead to further discipline, up to and including termination.

Terminated For Hanging Up On Customers

Two months after the cramming incident, DeWitt suffered a severe drop in blood sugar at work which she stated caused her to experience disorientation, confusion, and lethargy, making her unable to communicate with anyone. After DeWitt found that she was locked out of her computer, she contacted her First Line Supervisor, Tom Heumann, for assistance. Heumann did not address her locked computer but instead told the Center Support Manager, Beth Kloxin, that  he had been monitoring De Witt’s calls and found that she had hung up on at least two customers. Kloxin responded by saying “I finally got that bitch” and did a little dance.

Later that day, Heumann and Kloxin met with DeWitt for a suspension meeting because of her two customer hang-ups. A union steward also attended the meeting. DeWitt explained that she did not remember taking the dropped calls and that she had been experiencing very low blood sugar levels at the time. Although they reviewed recordings of the dropped calls, DeWitt still did not remember them and asked if they were sure that the calls were hers. Heumann then told DeWitt that she was suspended and that a “Day in Court” would be held at a later date. In response to a request from Kloxin and the union steward, DeWitt provided her blood sugar levels for that afternoon.

About a week later, SW Bell held DeWitt’s “Day in Court.” DeWitt again explained that she did not remember taking the calls due to a severe drop in her blood sugar. Five days later, SW Bell terminated DeWitt for hanging up on two customers in violation of the company’s Code of Business Conduct and her Last Chance Agreement.

ADA and FMLA Claims

DeWitt filed discrimination charges with the Equal Employment Opportunity Commission (EEOC) and after receiving her notice of right to sue, filed a lawsuit against SW Bell in federal court. She alleged that the company failed to accommodate her disability and terminated her because of her disability in violation of the ADA, and retaliated against her for taking FMLA leave. After the district court ruled in favor of SW Bell on all of her claims on summary judgment, DeWitt appealed to the Tenth Circuit Court of Appeals (whose decisions apply to Colorado, Utah, Wyoming, Oklahoma, Kansas, and New Mexico).

Employer Need Not Excuse Or Overlook Misconduct 

DeWitt asserted that SW Bell failed to accommodate her disability by not excusing her dropped calls which she says were caused by her disability. The Court disagreed, stating that the ADA does not require employers to reasonably accommodate an employee’s disability by overlooking past misconduct, even when the misconduct is caused by the disability. Instead, the Court cited the EEOC’s ADA Enforcement Guidance which states that reasonable accommodations are “always prospective.”

The Court found that DeWitt had not requested a reasonable accommodation to address concerns that her diabetes could cause her to drop calls. Using a disability as an “after-the-fact excuse” for workplace misconduct is unreasonable and employers need not ignore or overlook past misconduct. Therefore, because asking for retroactive leniency is not a reasonable ADA accommodation, DeWitt’s accommodation claim failed.

Decision-Maker’s Honest Belief In Termination Reasons

On DeWitt’s ADA termination claim, the Court assumed (without deciding) that DeWitt had established that she was a disabled person under the ADA, and was qualified to perform the essential functions of her job. The Court also accepted that SW Bell had provided a legitimate, non-discriminatory reason for terminating DeWitt, namely that she had hung up on at least two customers while on a Last Chance Agreement. To prevail, DeWitt needed to show that SW Bell’s stated reasons for her termination were pretext for discriminating against her.

DeWitt argued that dropping the calls was not intentional but instead, was a result of her disability – her severely low blood sugar at the time. The Court said that didn’t matter. Instead what mattered was whether the decision-maker, Kimberly Baskett-McEnany, who was DeWitt’s Third Line Supervisor, honestly believed that the hang-ups were intentional and acted on that belief in good faith. Finding no evidence to undercut Baskett-McEnany’s belief, the Court ruled that DeWitt’s ADA discrimination claim failed.

FMLA Retaliation Claim Also Fails

DeWitt also argued that SW Bell terminated her in retaliation for her use of FMLA leave. She offered evidence from a former manager at the call center who stated that employees who used FMLA leave were targeted as employees that should be terminated and that the company would look for other reasons to terminate such employees. DeWitt also pointed to Kloxin’s response to Heumann’s revelation that DeWitt had hung up on customers, saying “I finally got that bitch,” as evidence that SW Bell terminated her for using FMLA leave.

Again, the Court rejected DeWitt’s arguments and her FMLA retaliation claim. The Court stated that the former manager’s comments about the company targeting employees who used FMLA leave was no more than speculation, as that person had no knowledge of and was not involved in the company’s decision to terminate DeWitt. In addition, the Court determined that Kloxin’s subjective beliefs were irrelevant as she was not the person who decided to terminate DeWitt. Finding no evidence to send DeWitt’s claims to a jury, the Court upheld the grant of summary judgment in favor of SW Bell on all claims.

Key Lessons

This case highlights some significant management practices that can help defeat discrimination and retaliation claims. First, hold all employees accountable to your standards of conduct. SW Bell terminated DeWitt for violating its code of conduct, providing the necessary legitimate, non-discriminatory reason for actions. In addition, because DeWitt could not provide evidence that other employees who similarly violated the conduct rules were treated more favorably than she was treated, she was unable to show pretext. Second, if a supervisor has a potentially unlawful animus or bias against an employee, take that person out of the decision-making process. Although Kloxin appeared to express animosity against DeWitt (although it is not clear that her animosity was driven by an unlawful motive), she was not involved in the decision to terminate DeWitt and that distinction drove the Court to reject DeWitt’s claims. Finally, remember that a reasonable accommodation applies prospectively. You need not excuse poor performance or misconduct for which no accommodation was requested. That said, when dealing with an employee with a known disability, weigh all employment decisions very carefully and make sure your actions are well supported by your policies and past practices.

May 11, 2016

Colorado Pregnancy Accommodation Bill Passes

By Micah Dawson

The Colorado legislature passed House Bill 16-1438 requiring Colorado employers to engage in an interactive process to assess potential reasonable accommodations for applicants and employees for conditions related to pregnancy and childbirth. The bill, expected to be signed into law by Governor Hickenlooper, will ensure that employers engage in the interactive process, provide reasonable accommodations to eligible individuals, prohibit retaliation against employees and applicants that request or use a pregnancy-related accommodation, and provide notice of employee rights under this law. Once signed by the Governor, the new law will go into effect on August 10, 2016.

Pregnancy-Related Workplace Accommodations

This law will add a new section, section 24-34-402.3, to the Colorado Anti-Discrimination Act, making it an unfair employment practice for you to fail to provide a reasonable accommodation for an applicant for employment, or an employee, for health conditions related to pregnancy or physical recovery from childbirth, absent an undue hardship on your business. You also may not deny employment opportunities based on the need to make a pregnancy-related reasonable accommodation.

Interactive Accommodation Process 

You will need to engage in a “timely, good-faith, and interactive process” with the applicant or employee to determine effective reasonable accommodations.

Examples of reasonable accommodations include but are not limited to:

  • more frequent or longer breaks
  • more frequent restroom, food and water breaks
  • obtaining or modifying equipment or seating
  • temporary transfer to a less strenuous or hazardous position, if available (with return to the current position after pregnancy)
  • light duty, if available
  • job restructuring
  • limiting lifting
  • assistance with manual labor, or
  • modified work schedules.

In engaging in this process, you need to be sure to document your good-faith efforts to identify and make reasonable accommodations because doing so can negate punitive damages if an individual sues you for failure to make a pregnancy-related accommodation. You may require that the employee or applicant provide a note from her health care provider stating the need for a reasonable accommodation.

No Forced Accommodations or Leave 

Under the new law, you may not force an applicant or employee affected by pregnancy-related conditions to accept an accommodation that she has not requested, or that is unnecessary to perform the essential function of her job. Similarly, you may not require a pregnant employee to take leave if there is another reasonable accommodation that may be provided. As stated in the legislative declaration for the bill, the intent is to keep pregnant women employed and generating income so forcing pregnant women to take time off during or after their pregnancy generally is not permitted.

Analyzing Undue Hardship Of Accommodations 

Reasonable accommodations may be denied if they impose an undue hardship on your business. That requires an analysis of the following factors in order to decide whether the accommodation would require significant difficulty or expense:

  • the nature and cost of the accommodation
  • the overall financial resources of the employer
  • the overall size of the employer’s business with respect to the number of employees and the number, type, and location of the available facilities, and
  • the accommodation’s effect on expenses and resources or its impact on the operations of the employer.

Broad Definition of “Adverse Action” in Retaliation Prohibition 

The new law prohibits you from taking adverse action against an employee who requests or uses a reasonable accommodation for a pregnancy-related condition. An adverse action is defined very broadly as “an action where a reasonable employee would have found the action materially adverse, such that it might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” This approach harkens to the NLRB’s use of a “chilling effect” on employee rights as a basis for unfair labor charges. By not limiting an adverse action to concrete actions, such as a termination, demotion, pay reduction, or similar actions, the broad definition opens the door to a wide range of employer responses that could be deemed retaliation.

Notifying Employees of Their Rights

If signed into law, you will have until December 8, 2016 (120 days from the effective date) to provide current employees with written notice of their rights under this provision. Thereafter, you also must provide written notice of the right to be free from discriminatory or unfair employment practices under this law to every new hire at the start of their employment. You also have to post the written notice in a conspicuous place at your business in an area accessible to employees.

What To Do Now 

With enactment almost certain, prepare now to comply with this new pregnancy accommodation requirement. A checklist of action items includes:

  • Review and update job descriptions to designate essential functions of each job.
  • Update your accommodation policies and handbook to include pregnancy-related accommodations and information on how employees may request such an accommodation.
  • Train your supervisors, managers, and human resources department on the new accommodation requirements and the anti-retaliation provision.
  • Prepare written notifications of employee rights to send to current employees no later than December 8, 2016.
  • Include the written notification of rights in your onboarding materials so that after December 8, 2016, all new hires receive the notice.
  • Post the written notification of rights in a conspicuous place accessible to employees, such as your lunch room bulletin boards, intranet, or wherever other required employment law posters are posted.

January 4, 2016

Pregnancy-Related Accommodation Bill To Be Introduced in Colorado Legislature

Dawson_MBy Micah Dawson

Following the national trend, a bill to be introduced during Colorado’s next legislative session intends to expand protection for pregnancy-related leave. Specifically, the draft bill would require employers to provide reasonable accommodations to applicants and employees for conditions related to pregnancy and childbirth. If passed, the bill would mean that employers must engage in an interactive process to assess potential reasonable accommodations, provide notice of employee rights, and refrain from retaliating against employees and applicants that request or use a pregnancy-related accommodation.

With the 2016 Colorado legislative session set to convene on January 13th, here are the highlights of the draft bill.

Reasonable Accommodation Requirement

Under the draft bill, an employer would commit an unfair employment practice if it refuses to make a reasonable accommodation for a job applicant or an employee for conditions related to pregnancy or childbirth, unless doing so would impose an undue hardship on the employer’s business. Employers would need to engage in a good-faith interactive process with the employee to determine possible, effective reasonable accommodations.

Most employers should be familiar with the interactive process as it should be used when assessing accommodations for qualified individuals with a disability. Possible reasonable accommodations listed in the draft bill include more frequent or longer break periods, temporary transfer to a less strenuous or hazardous position, job restructuring, light duty, time off to recover from childbirth, acquisition or modification of equipment, seating, assistance with manual labor, modified schedules, and break-time and private non-bathroom space for expressing breast milk. Employers would not be required hire new employees, or discharge, transfer, or promote another employee in order to make a reasonable accommodation.

The bill would further prohibit employers from requiring an applicant or employee to accept a reasonable accommodation that the individual chooses not to accept. The bill also would prevent employers from requiring an employee to take leave if there are other reasonable accommodations that may be made. These provisions seem to suggest that the employee has veto power over offered accommodations. This differs significantly from disability law as under the Americans with Disabilities Act (ADA), an employer meets its reasonable accommodation duty if it provides an accommodation that allows the employee to perform the essential functions of his or her job, even if that accommodation is not the one preferred by the employee.

Undue Hardship Analysis 

An “undue hardship” is defined in the bill as an action requiring significant difficulty or expense proven by the employer. Factoring into that determination would be:

  • the nature and cost of the accommodation
  • the overall financial resources of the employer
  • the overall size of the employer’s business with respect to the number of employees and the number, type, and location of the available facilities, and
  • the accommodation’s effect on expenses and resources or its impact on the operations of the employer.

If the employer provides a similar accommodation to other classes of employees, it will be presumed that the accommodation does not impose an undue hardship. Employers would have to rebut that presumption if they fail to offer the same or similar accommodation for pregnancy-related conditions.

Retaliation Prohibited 

Employers would be prohibited from taking adverse action against an employee who requests or uses a reasonable accommodation for a pregnancy-related condition. An adverse action is defined in the bill as a retaliatory action, such as the failure to reinstate the employee to her original job or to an equivalent position with equivalent pay and accumulated seniority, retirement, fringe benefits and other applicable service credits.

Notice and Posting Requirement

If this bill were to become law, employers would be required to provide employees with written notice of their rights under this provision. New employees would have to be provided the written notice at the start of their employment. Additionally, employers would have ten days to provide the notice to individual employees who inform their employer of their pregnancy. There is also a provision to notify existing employees within a specified time after the effective date of the new law. Finally, employers would be required to post the written notice in a conspicuous place at their business in an area accessible to employees.

Likelihood of Bill Passage

Remember that at present, this bill is only a draft and after it is introduced in the House, it will be assigned to a committee. There are many opportunities for legislators to amend, add, or delete provisions in the bill throughout the legislative process.

That said, some form of the bill stands a reasonable chance of passage within the Democratically controlled Colorado House. It has less chance of success in the Republican-controlled Senate. We will watch to see if other legislators add their names as co-sponsors, or if an alternative (perhaps less onerous) bill is introduced in the Senate. We will track this bill and keep you informed of any important developments.

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May 28, 2015

ADA Defense: Disabled Individual Poses Direct Threat to Health or Safety

Collis_SBy Steven T. Collis 

You know you can’t discriminate against qualified individuals with a disability. But what if you are convinced that the person’s disability would create a significant risk of harm to that person or others if allowed to perform the intended job? The “direct threat” defense may help you avoid liability for a disability discrimination claim under the Americans with Disabilities Act (ADA).  

Direct Threat Defense Defined 

An employer may reject a disabled candidate or otherwise deny a job or benefits to an individual with a disability on grounds that the individual poses a direct threat to the health or safety of either that individual or others in the workplace. A direct threat is defined to mean “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” 

Making that determination is not easy. It must be made based on an individualized assessment of the employee’s ability to safely perform the essential functions of the job. You need to obtain information from a physician or other medical judgment that relies on the most current medical knowledge or the best available objective evidence. Factors used to determine whether an individual would pose a direct threat in the workplace include: 

  • the duration of the risk;
  • the nature and severity of the potential harm;
  • the likelihood that the potential harm will occur; and
  • the imminence of the potential harm. 

Employer’s Reasonable Belief 

Some of the direct threat factors are not easily quantified. For example, it may be difficult to determine the likelihood that a potential harm will occur in certain circumstances or work settings. Or showing that the potential harm is imminent could prove challenging. 

The good news is that this analysis, while difficult, need only be based on the employer’s reasonable determination.  As explained recently by the Tenth Circuit Court of Appeals (whose decisions apply to Colorado employers), an employer making the direct threat defense need not prove that the person actually posed a significant risk of substantial harm to the health or safety of that person or others. Instead, the standard is that the employer reasonably believed that the job would entail a direct threat.  EEOC v. Beverage Distributors Co., LLC, No. 14-1012 (10th Cir. March 16, 2015). 

In this recently decided case, Michael Sungaila, an employee who was legally blind, was selected for a job in his company’s warehouse after his previous position was eliminated. His warehouse job was conditioned, however, on passing a physical. The doctor who performed Sungaila’s physical found that he would require workplace accommodations in order to lessen the risks from his impaired vision. The company concluded that it could not reasonably accommodate his condition and rescinded his job offer. Sungaila filed a discrimination claim with the EEOC, which then sued the employer on his behalf under the ADA. 

At trial, the company asserted a direct threat defense. The jury decided that Sungaila was not a direct threat and found the company liable for disability discrimination. On appeal, the Tenth Circuit overturned the verdict because the jury instructions had overstated the company’s burden of proof on the direct threat defense. Because the instructions and jury form had incorrectly stated that the company had to prove that Sungaila posed a direct threat, rather than having to prove only that it reasonably believed that Sungaila posed a direct threat, the Court reversed. 

Reasonable Accommodation Analysis Still Applies 

Even after evaluating the direct threat factors listed above, you still must determine whether the potential risk of harm may be eliminated or reduced by making a reasonable workplace accommodation. This means you need to go through the required interactive process where you discuss with the applicant/employee what accommodations may allow the individual to safely perform the job. You may need to seek input from medical advisors, as necessary. Only if you cannot identify a reasonable accommodation that (1) does not impose an undue hardship on your company and (2) negates or reduces the risks, should you reject the candidate. 

Good Documentation is Necessary 

With so many factors to be analyzed and medical opinions to be obtained, it is essential that you have good documentation to support your determinations at each step of the process. Proper evidence will be the key in helping you avoid liability based on a direct threat defense by showing that you had a reasonable belief in the direct threat that led to your employment decision.

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April 14, 2015

EEOC Fails to Show Telecommuting Would Be A Reasonable Accommodation

Wiletsky_MBy Mark Wiletsky 

The Americans With Disabilities Act (ADA) “does not endow all disabled persons with a job—or job schedule—of their choosing,” according to the majority of judges on the full Sixth Circuit Court of Appeals. In an 8 to 5 decision, the Sixth Circuit Court ruled en banc that Ford Motor Company did not violate the ADA when it denied an employee’s request to telecommute up to four days per week in order to accommodate her irritable bowel syndrome. EEOC v. Ford Motor Co., No. 12-2484 (6th Cir. Apr. 10, 2015). 

“Good, Old-Fashioned Interpersonal Skills” Made In-Person Attendance Essential 

The Equal Employment Opportunity Commission (EEOC) argued that a resale buyer for Ford, Jane Harris, who had irritable bowel syndrome that made it difficult for her to be far from a restroom, should be allowed to work from home up to four days per week. The agency cited Ford’s telecommuting policy that allowed other workers, including some resale buyers, to telecommute as evidence that Harris’ telecommuting request was a reasonable accommodation under the ADA. 

The Court disagreed. It ruled that regular and predictable on-site attendance was an essential function of the resale-buyer position at Ford. Resale buyers needed to purchase raw steel from steel suppliers and then resell it to parts manufacturers to make parts used in Ford vehicles. Although some interactions could be done by email and telephone, the Court found that many required “good, old-fashioned interpersonal skills,” and resale buyers needed to be able to meet face to face with suppliers, parts manufacturers and Ford employees during core business hours. 

Importantly, the Court reiterated the general rule is that regular attendance at work is essential to most jobs, especially interactive ones. It pointed to past court opinions as well as to EEOC regulations that support the premise that regular and predictable on-site attendance is an essential job function. The Court even relied on that “sometimes-forgotten guide” – common sense, stating that non-lawyers (as well as judges in other appellate circuits) recognize that regular in-person attendance is an essential function, and a prerequisite to other essential functions, of most jobs. 

Other Buyers Telecommuted on a Predictable, Limited Basis 

But what about the fact that Ford had a telecommuting policy that allowed other employees, including resale buyers like Harris, to work from home? Wouldn’t that make telecommuting a reasonable accommodation for Harris? 

The Court said no, because she proposed to telecommute four days per week on a schedule of her choosing. The other resale buyers who telecommuted did so only one established day per week and they agreed in advance that they would come into work that day, if needed. They were also able to perform well and maintain productivity. Harris, on the other hand, wanted to be able to pick and choose which days she would telecommute, up to four days per week, without agreeing to come in those days, if necessary. The Court found that none of these other employees’ more predictable and more limited telecommuting schedules removed regular on-site attendance from the resale buyer’s job. 

As a result, the Court ruled that Harris’ proposed telecommuting accommodation unreasonable.

In addition, Ford had allowed Harris to telecommute on an as-needed basis on three separate occasions and her performance suffered. Other attempts to improve Harris’ attendance also failed. The Court found that Harris could not perform the essential functions of her job and was unable to establish regular and consistent work hours. Therefore, it ruled that she was not a “qualified individual” under the ADA. 

Technology Did Not Carry the Day 

The EEOC argued that advances in technology make on-site attendance less essential. The Court disagreed in this case, stating that there was no evidence presented that specific technology made personal interactions unnecessary for resale buyers. 

No Blind Deference to Employer’s Judgment 

The Court made a point of stating that its opinion did not open the door for courts to blindly accept as essential whatever an employer says is essential for a particular job. It emphasized that an employer’s words, policies and practices were all important in deciding whether a particular task or requirement is an essential job function. 

In Ford’s case, the evidence supported Ford’s judgment that regular and predictable in-person attendance was essential for resale buyers. The Court affirmed the district court’s grant of summary judgment in favor of Ford. 

No Retaliation For Termination 

The Court also ruled that Ford did not retaliate against Harris when it fired her for poor performance just four months after she had filed a charge of discrimination with the EEOC. Key was Ford’s good documentation of Harris’ performance and interpersonal issues. She had been ranked in the bottom 10% of her peer group before she filed her charge. Documentation showed that she failed to update spreadsheets, complete her paperwork, schedule training sessions, price items correctly and finish her work on time. Despite the closeness in time of the firing to her charge filing, the Court ruled that the EEOC failed to present evidence from which a reasonable jury could find that the real reason that Ford terminated Harris was unlawful retaliation instead of poor performance. 

Dissent: Either Physical Presence is Not Essential or Telecommuting is A Reasonable Accommodation 

Five judges on the Sixth Circuit dissented, believing that the EEOC had presented enough evidence to send the EEOC’s claims to a jury. Specifically, the dissent stated that the evidence was sufficient to show that there remained genuine disputes over whether Harris was a qualified individual, either because in-person attendance was not an essential function of her job, or because telecommuting would be a reasonable accommodation for her. It pointed to Ford’s telecommuting policy which allowed for “one to four days” of telework each week. It noted that Harris proposed that she be able to work from home up to four days each week, as was arguably allowed under the policy, not that she be permitted to telecommute four days each and every week. 

The dissent also asserted that Harris’ past attendance issues that were a result of her disability should not be used against her in deciding whether a telecommuting arrangement during core business hours would be a reasonable accommodation under the ADA. Moreover, the dissent found that Ford should have engaged in a more interactive process to clarify Harris’ telecommuting accommodation request. Finally, the dissent believed that there was a genuine dispute over whether Ford retaliated against Harris for filing her discrimination charge. 

Lessons for Employers Facing ADA Telecommuting Accommodation Requests 

The majority’s decision finding that regular and predictable in-person attendance is an essential function of most jobs, especially interactive ones, is favorable for employers. But it does not mean that telecommuting can never be a reasonable accommodation. In fact, the dissent in this case demonstrates that telecommuting requests for disabled employees is likely to continue to be an issue with which employers will grapple in coming years.  

If face-to-face interactions and in-person attendance at meetings or other work-related functions is essential for certain jobs at your workplace, be certain to include those tasks in your job descriptions. If you generally allow telecommuting, be sure to have a written policy and apply it consistently. If presented with a request to telecommute in order to accommodate a disability, engage in an interactive process to discuss whether telecommuting would be appropriate for that particular position and employee, whether it would constitute an undue hardship for your organization and if alternative accommodations would allow the employee to perform his or her essential functions. And by all means, make sure you have concrete documentation of an employee’s poor performance or policy infractions before taking adverse action against anyone who has filed a discrimination charge.

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June 2, 2014

Disabled Employee Not Entitled to Additional Leave as Reasonable Accommodation

Biggs_JBy Jude Biggs 

After Kansas State University denied her request to extend a leave of absence for longer than six months, assistant professor Grace Hwang, who suffers from cancer, filed suit against the University alleging disability discrimination and retaliation under the Rehabilitation Act.  The Tenth Circuit Court of Appeals ruled that the University had not violated the Rehabilitation Act because Ms. Hwang could not show that she was able to perform the essential functions of her job.   In addition, the Tenth Circuit held that requiring the University to extend the six-month’s leave was not a reasonable accommodation.  Hwang v. Kansas State Univ., No. 13-2070 (10th Cir. May 29, 2014). 

Policy Provided Six-Month’s Paid Leave of Absence 

Ms. Hwang was set to teach classes at Kansas State University under a one-year contract that covered all three academic terms — fall, spring and summer.  Before the fall term, Ms. Hwang was diagnosed with cancer. She asked for a leave of absence to seek medical treatment.  The University granted her a paid six-month leave under its regular policy which capped the length of a leave at six months.  

As the six-month leave was coming to an end, Ms. Hwang’s doctor advised her to seek more time off of work.  She asked the University to extend her leave through the end of the spring semester, intending to return before the summer term.  The University refused to extend her leave but instead arranged for Ms. Hwang to receive long-term disability benefits, effectively ending her employment with the University. 

Ms. Hwang sued the University in federal court alleging that the University’s denial of her request for extended leave constituted disability discrimination under the Rehabilitation Act.  The Rehabilitation Act prohibits disability discrimination by entities that receive federal funds, such as Kansas State.  29 U.S.C. § 794(a).  The federal district court dismissed her lawsuit on a motion to dismiss (before any discovery was done), and Ms. Hwang appealed to the Tenth Circuit Court of Appeals, which covers the states of Colorado, Utah, Wyoming, Kansas, Oklahoma and New Mexico. 

Extended Leave Not A Reasonable Accommodation Under Rehabilitation Act  

The University did not dispute that Ms. Hwang was a capable teacher and that her cancer rendered her disabled as defined by the Rehabilitation Act.  The central issue in the appeal was whether the University was required to ignore the six-month time limit in its leave policy to extend Ms. Hwang’s leave of absence beyond six months. The Court said no.  Because Ms. Hwang wasn’t able to work for an extended period of time, she was not capable of performing the essential functions of her job.  In addition, requiring the University to keep her job open for that extended period of time did not qualify as a reasonable accommodation.  The Court wrote: “[a]fter all, reasonable accommodations – typically things like adding ramps or allowing more flexible working hours – are all about enabling employees to work, not to not work.” 

The Court noted that a “brief absence from work” for medical care may be required as a reasonable accommodation, as it likely allows the employee to continue to perform the essential functions of the job.  Determining how long employers must provide for leave as a reasonable accommodation depends on factors such as the duties essential to the job in question, the nature and length of the leave sought and the impact of the leave on co-workers.  That said, the Court stated that it would be difficult to find a six-month leave of absence in which the employee performs no work (e.g., no part-time hours or work from home) reasonable in any job in the national economy today.  Ms. Hwang’s terrible problem, in the Court’s view, was one other forms of social security aim to address.  In addition, the Court noted that the aim of the Rehabilitation Act is to prevent employers from denying reasonable accommodations that would allow disabled employees to work, not to turn employers into a “safety net” for those who cannot work. 

“Inflexible” Six-Month Leave Policy Not Inherently Discriminatory 

Ms. Hwang asserted that the University’s “inflexible” sick leave policy that capped the maximum length of sick leave at six months violated the Act.  She cited the EEOC’s guidance manual which states that if a disabled employee needs additional unpaid leave as a reasonable accommodation, the employer must modify its “no-fault” leave policy to provide the additional leave, unless the employer can show that there is another effective accommodation that would allow the individual to perform the essential functions of her job, or that granting additional leave would cause the employer an undue hardship.  The Court, however, pointed to another section of the EEOC’s guidance manual to counter Ms. Hwang’s argument, as the EEOC manual states “ . . . six months is beyond a reasonable amount of time.”  In fact, the Court stated that an “inflexible” leave policy can actually help protect the rights of disabled employees rather than discriminate against them because such a policy does not permit individual requests for leave to be singled out for discriminatory treatment. 

Not all leave policies will past muster, however.  The Court stated that policies that provide an unreasonably short sick leave period may not provide enough accommodation for a disabled employee who would be capable of performing his or her job with just a bit more time off.  Alternatively, policies that are applied inconsistently, such as where some employees are allowed more time off and others are held to a strict time limit, could be discriminatory.  In this case, however, the Court found that Ms. Hwang did not allege any facts to support a claim that she was treated differently than other similarly situated employees. 

Retaliation Claim Fails As Well 

Ms. Hwang also asserted that she was unlawfully retaliated against for reporting disability discrimination.  In particular, she based her claims on two theories : (1) the University failed to explain her COBRA health benefits before or immediately after her termination; and (2) she wasn’t hired for two other positions at the University that she applied for after losing her teaching job.  The Court easily dispensed with both theories. 

First, COBRA allows thirty days for an employer to provide separating employees with a COBRA notice.  Consequently, the University was not required to provide Ms. Hwang with notice of her COBRA benefits before or immediately after her termination of employment.  Second, although Ms. Hwang alleged that she was not hired for two other University positions for which she applied, she failed to allege any facts suggesting that the University’s decision not to hire her was because she had engaged in legally protected opposition to discrimination.  She not only failed to provide facts showing that she was qualified for the two jobs, but she also failed to offer facts suggesting that the University officials who decided not to hire her knew about her disability and her complaint about disability discrimination.  Without such allegations, the Court ruled that Ms. Hwang’s retaliation claim failed. 

ADA Application 

Although this case alleged a violation of the Rehabilitation Act, courts typically analyze such claims similarly to those alleging a violation of the Americans With Disabilities Act (ADA).  Consequently, this case may prove helpful to employers defending ADA claims where the employer denies an employee’s request for an extended leave of absence.  Employers should heed the Court’s warning about leave policies that may be discriminatory if they provide an unreasonably short leave or are inconsistently applied.  However, lengthy leaves of six months or more, or leaves of an unlimited duration in which the disabled employee provides no work, will likely not be considered a reasonable accommodation.

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September 14, 2012

Working from Home – Not a Reasonable Accommodation

By Mark Wiletsky

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

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

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

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

Lessons Learned

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

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