Tag Archives: employee accommodations

Register Now! Managing Employee Medical Issues in the Workplace Webinar – September 12th

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Webinar-TemplateJoin Rebecca Dobbs Bush and Joe Trevino, on September 12 at noon CT as they share valuable insight and best practices to help business owners and human resource professionals navigate the quagmire of managing employee medical issues in the workplace. 

Managing employee medical issues has become more challenging due to increasingly complex regulations. In order to minimize risk, employers must learn to effectively handle requests for accommodations, paid and unpaid leaves of absence, employee benefits, and wage and hour issues; areas that are ripe for abuse.

When employee medical issues are handled on a fair and consistent basis and abuses are prevented, a positive workplace culture is fostered, and employee morale, retention and productivity are improved.

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Failure to Engage in Ongoing, Individualized Interactive Process Could Cost Millions

Contributed by Noah A. Frank

A bit of strategic planning could have saved an employer from a federal jury’s $5.5 million verdict for a mechanic who claimed his accommodations were discontinued after eight (8) years. Labor LawA heavy equipment mechanical repairman  was subject to medical restrictions for lifting, climbing, and postural limitations. Despite these restrictions, he performed the essential functions of the job with accommodations. This all changed on December 28, 2011 when he returned to work from an unrelated gallbladder surgery; his new supervisor noted his arthritis-related work restrictions and allegedly told him that no one was allowed to work in the department with limitations. All accommodations ceased.

The jury found that he was a qualified individual with a disability, who should have been provided with an accommodation, and was terminated because of his disability. Further, his employer failed to prove either that an accommodation would not be possible, or that he was a threat to his own or others’ safety.

What Should Have Happened?

Administrative agencies (like the EEOC and state/local counterparts) and courts expect employers to engage in the Interactive Process for individuals with known/disclosed disabilities to determine whether:

  • The employer can provide an accommodation to remove barriers to enable the employee to perform the essential (non-marginal) functions of the job, and
  • That the accommodation is reasonable.

If neither of those is true, the individual may not be a qualified individual with a disability, and therefore not protected under relevant civil rights laws.

In this situation, it seems that the employer’s biggest mistake was suddenly deciding that years-old accommodations were no longer possible. If anything, the company should have re-addressed his individual needs by engaging in the process. Having done so, it could have then considered changing the accommodations.

Interactive Process – Done Right

Every employee and employment situation is unique, so frustratingly there is no one-size-fits-all approach. However, some general steps for a successful Interactive Process include:

  • First, meet with the employee. Inquire about any limitations from the known/disclosed disability (of course, employers may not simply inquire whether any employee has a disability, as this would run afoul of these disability acts as well).
  • Next, review the employee’s ability to perform the essential, required job functions. Ask what, if any, accommodations are being sought.
  • Consider in good faith the requested accommodations, or if none, what you can offer to assist the worker. If some are possible, implement them to enable the employee to be a productive worker; if none, carefully consider next steps, including perhaps an administrative termination.
  • Finally, in tricky situations, consult with employment counsel.

 

Universally Applied Seniority-Based Bidding System Trumps ADA Accommodation Says Seventh Circuit – Though Dissenter Disagrees

Contributed by Suzanne Newcomb

On December 3, the Federal Court of Appeals for the Seventh Circuit (Illinois, Indiana and Wisconsin) affirmed dismissal of a failure to accommodate claim brought by an employee bumped from a job assignment that accommodated his disability after his employer opened that assignment to seniority-based bidding pursuant to the terms of the collective bargaining agreement (CBA).

After a series of injuries and several extended leaves of absence, the employee was released to return to work with permanent restrictions that prevented him from performing many of the physically demanding essential functions of his position. The employer accommodated his restrictions by placing him into the fairly sedentary “Matrix position.” The CBA allowed employees to bid on their desired work assignments and required the employer place them in their selections according to seniority. The Matrix assignment, however, was reserved for employees with permanent restrictions and was not subject to seniority-based bidding.

The employee had held the Matrix position for years when the employer decided the position should be included in the seniority-based competitive bidding scheme. The employee did not have enough seniority to hold the position. He inquired about several no-bid positions, but none were available at the time. Ultimately he was placed on extended leave and sued.

Office PeopleThe employee claimed his employer failed to accommodate his disability by refusing to allow him to remain in the Matrix position and by failing to place him in a no-bid position. Relying on U.S. Supreme Court precedent, the Court held that the employer was not required to violate a uniformly enforced seniority system in order to accommodate an employee’s disability. The employee’s argument with respect to the no-bid positions failed because he could not show a vacancy existed at the relevant time, reaffirming that the Americans with Disabilities Act (ADA) does not require an employer to create a vacancy or “bump” other employers in order to provide an accommodation.

Notably, however, a dissent was filed. The dissenting judge pointed out that the prior precedent on which the majority relied, specifically allowed that “special circumstances” can warrant a finding that the requested accommodation is reasonable under the particular facts despite the existence of a seniority system. He concluded that evidence that the employer excluded the Matrix position from the seniority system for years could warrant such a finding. Whether the employee will ask the United States Supreme Court to review the decision remains to be seen.

Bottom line: Although this decision is a win for the employer and welcomed guidance for employers who regularly find themselves balancing individual employee’s ADA rights and its obligations under a CBA, the dissent highlights the fact that, as with all things ADA, there are no clear answers. Careful analysis of all accommodation options and a review of available positions must be conducted on a case by case basis.