Tag Archives: Reasonable accommodation

Seventh Circuit Holds that Multiple-Month Extended Leaves Are Not Reasonable Accommodations Under the ADA

Contributed by Allison P. Sues, September 27, 2017

Because not all recoveries from medical conditions come in neat twelve-week packages, employers commonly need to address employees’ requests for additional leave after they have exhausted all leave afforded under the Family Medical Leave Act (“FMLA”) or company policy.

Clock and StethoscopeThe U.S. Equal Employment Opportunity Commission has long taken the position that terminating an employee who has exhausted FMLA leave, but is still not able to return to work, may violate the Americans with Disabilities Act (“ADA”). For instance, the EEOC guidance, issued on May 9, 2016, opined that providing additional leave may be necessary as a reasonable accommodation.

The Seventh Circuit Court of Appeals recently issued a decision running contrary to this EEOC guidance and the prevailing precedent in other circuits, holding in Severson v. Heartland Woodcraft, Inc., that an employee is not entitled to extended leave as a reasonable accommodation under the ADA.

In this case, employee Severson took a twelve-week medical leave from work under the FMLA to deal with serious back pain (the statutory maximum). Shortly before this leave expired, Severson notified his employer that he was scheduled to undergo back surgery, and requested an additional two to three months of leave to recover from surgery. The company denied Severson’s request to continue his medical leave beyond the FMLA entitlement, terminated his employment, and invited him to reapply when he was medically cleared to work.  Instead, Severson sued, alleging a failure to reasonably accommodate his disability—namely, a three-month leave of absence after his FMLA leave expired.

The Seventh Circuit affirmed the district court and clarified that a medical leave spanning multiple months is beyond the scope of a reasonable accommodation. Finding that the employer did not violate the ADA by refusing to provide the additional leave, the Seventh Circuit explicitly stated that an employee, who cannot not work or perform their job’s essential functions, is not a “qualified individual” under the ADA.  Further highlighting its position, the Court distinguished between the FMLA, which it held was intended to provide long-term medical leave for those who cannot work, while the ADA is meant to require accommodation only for those “that can do the job.”

Before employers in Illinois, Wisconsin and Indiana reinstate strict Maximum Leave Policies and No-Fault Termination policies, whereby employees are automatically terminated if they cannot return to work when FMLA or other awarded leave is exhausted, several limitations to Severson should be noted.

Severson’s holding is limited to “medical leave[s] spanning multiple months.” The Court acknowledged that finite extensions of leave for shorter durations – described as “a couple of days or even a couple of weeks”, but less than multiple months – may still be deemed a reasonable accommodation.

The Court further acknowledged that intermittent leaves of short duration may constitute reasonable accommodations in the same way a part-time or modified work schedule may be a reasonable accommodation for employees dealing with medical flare-ups. Moreover, employers should be cautious about maintaining 100% Healed Policies, whereby an employer requires employees to have no medical restrictions whatsoever when their leave ends.

At any time employees have exhausted their leave, but are not fully cleared to return to work, the employer should engage in the ADA’s interactive process and consider the following before deciding to terminate employment:

  • Whether the employee’s current medical restrictions affect the employee’s ability to perform the essential functions of the position;
  • If the restrictions do impact the employee’s ability to perform the essential functions, are reasonable accommodations available that would enable the employee to perform these functions;
  • Whether vacant positions exist that the employee would be qualified to perform and could be reassigned into;
  • Whether the employer has a policy of creating light-duty positions for employees who are occupationally injured and whether this benefit could be extended to the employee without posing an undue hardship; and
  • Whether the employee’s request for additional leave is definite in time and of a short duration, and if this extended leave could be provided without posing an undue hardship.

 

An Employer’s Guide on Service Animals and the ADA

Contributed by Amanda Biondolino, July 17, 2017

Under the Americans with Disabilities Act (ADA) it is unlawful for an employer to discriminate against a qualified individual on the basis of disability, and this includes not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual. A qualified individual is a person with a disability who can perform the essential functions on the job with or without a reasonable accommodation. A reasonable accommodation includes making existing facilities used by employees readily accessible to individuals with disabilities. If an employee with a disability can perform the essential functions of the job utilizing a reasonable accommodation, they fall within the protections of the ADA.

guide dog silhouettes

Silhouettes of a blind man with his guide dog

There are no bright-line limitations on what is reasonable or what is not. What if your employee asks to bring a service animal to the worksite?  Must an employer allow dogs or other animals on the premises alongside their employees if an employee claims the animal is needed to assist them in maintaining their employment? Perhaps. Although uncommon, requests for service animals have been litigated, and the courts often allow the issue to proceed through a jury trial, a very expensive process for any employer. Examples include a paraplegic physician utilizing her dog to pull her wheel chair, open and close doors, and retrieve items, and a mechanic with PTSD utilizing a service dog around the shop.

It is important to remember that Title I of the ADA governs employment, while Title II and Title III of the ADA govern places of public accommodation. A reasonable accommodation under Title I is not necessarily limited to a service animal as defined for Titles II & III. If an employee with a disability requests a reasonable accommodation to assist in the performance of his or her job, an employer should engage in a good faith interactive dialogue with the employee about his or her request. Failure to do so is a violation of the ADA. The employer should analyze the job purpose and essential functions, and consult with the employee to ascertain the precise job-related limitations caused by his or her disability and how those limitations would be overcome with a reasonable accommodation, such as the service animal or other alternatives. If the disability or need for the animal is non-obvious, an employer can request reliable documentation verifying the employee’s disability and the relationship of the animal to that disability.

Issues to consider include the nature of the worksite (i.e., office setting versus production facility), the relationship between the animal’s function and the employee’s disability, how well the service animal will improve the employee’s ability to perform his or her job, and the temperament and behavior of the animal. If an employee shows their request is reasonable, the employer is required to provide a reasonable accommodation unless the accommodation would impose an undue hardship on the operation of the business. It is important to keep an open mind and evaluate every request on a case-by-case basis. Although the employee’s preference should always be considered, an employer is not required to grant the specific request simply because it is the employee’s preference. The employer should implement the accommodation that is most appropriate for both the employee and the workplace.

For a refresher on the obligations of a business to accommodate its customers’ needs for services animals, read this article on service animals and the ADA.

Employees That Are Erratic and Disruptive, While Suffering From A Mental Illness, Can Still Be Terminated Under The ADA

Contributed by Julie Proscia

Erratic behavior, caused by an underlying medical condition, does not necessarily mean a free pass under the Americans with Disabilities Act (ADA). In March, the Eighth Circuit Court of Appeals, in Walz v. Ameriprise Financial, Inc., upheld the termination of a bipolar employee, finding that the termination did not violate the ADA. Identifying and accommodating employees with overt physical disabilities is substantially easier than accommodating behavior that is disruptive and/or erratic and caused by mental illness. Because of the difficulty in addressing these types of issues, employers are often unsure of what to do–and thus do nothing. This ruling is good news for employers that struggle with disciplining and ultimately terminating individuals that are disruptive in the workplace and who cannot perform the essential functions of their position with or without a reasonable accommodation.

In Walz v. Ameriprise Financial, Inc., the plaintiff worked for Ameriprise as a process analyst. The position required not only good communication skills but also the ability to work well in a team. Starting in 2012, the plaintiff began to interrupt meetings, disturb coworkers, and disrespect her supervisor. After Walz’s supervisor had repeated discussions with her about her behavior, including offers of assistance and time off, she was eventually issued a disciplinary warning. Walz then applied for FMLA leave which was granted by a third party vendor that administers the leave requests for Ameriprise. Neither the third party vendor nor Walz ever informed Ameriprise of the reason for the FMLA leave. Upon her return to work, Walz provided a doctor’s note stating that her medications had been stabilized and was released for duty. The plaintiff was then given, reviewed, and signed a document that explained Ameriprise’s policy against disability discrimination and the procedure for requesting a reasonable accommodation. Within months of her return to work, Walz again began to engage in disruptive and erratic behavior to both her colleagues and supervisor, and was ultimately terminated. Throughout this time, Walz never requested a reasonable accommodation or reported the nature of her illness.

Walz subsequently sued Ameriprise alleging that it violated the ADA and should have known that she had a disability and forced her to take additional time off, despite the fact that she never disclosed the illness nor requested an accommodation. On appeal, the Eighth Circuit rejected her arguments and upheld the district court’s ruling. In doing so, the court found that Walz was not a qualified individual under the ADA because she could not perform the essential functions of her position with or without accommodation. Moreover, it held that the employer does not have a duty to “guess” an employee’s disability when the employee does not inform it of the illness or injury.

Bottom Line: Employers can discipline and terminate employees for erratic, rude and disruptive behavior even if the cause is ultimately related to an underlying medical condition. In a note of caution, employers still need to engage in the interactive process and investigate reasonable accommodations if the employee has disclosed a medication condition causing the behavior.

Reasonable Accommodation for Pregnant Employees

Contributed by Noah A. Frank

On March 25, 2015, the U.S. Supreme Court issued the highly anticipated Pregnancy Discrimination Act (PDA) and Americans with Disabilities Act (ADA) decision, Young v. UPS, no. 12-1226.

The Court found a genuine issue of facts as to whether UPS failed to accommodate in 2006 a part-time delivery driver, restricted from 70 to 20 pounds lifting during her pregnancy, even though it accommodated other drivers injured on the job or otherwise disabled, as well as drivers who temporarily lost DOT certification.  As a result, the Court remanded the case to the appellate court to determine whether pregnancy-blind policies tended to discriminate against pregnant workers despite their similar abilities (or inabilities) to work as non-pregnant workers.

The Court specially noted that 2008 ADA amendments expanded the definition and interpretation of “disability,” likely requiring an employer to provide accommodations to an employee with temporary lifting restrictions originating off the job (e.g., such as pregnancy and related conditions).

What This Means For Employers:

Frustration continues for U.S. companies as there is no “one size fits all” application of law to formation of employment policy and practices.

  • As we previously reported, as of January 1, 2015, Illinois Human Rights Act amendments require all Illinois employers to provide accommodations to pregnant employees, and those affected by conditions related to pregnancy (775 ILCS 5/2, et seq.).  Because federal employment discrimination law is instructive to Illinois’ administrative agencies, the Court’s ruling means that employers should evaluate their neutral leave and accommodation policies for potential of pregnancy discrimination.
  •  In all states, employers should ensure that they use a case-by-case evaluation of an employee’s medical- and pregnancy-related leave and accommodation requests.
  • Employers should engage in the ongoing, individualized interactive process with the employee to determine what, if any, accommodation can or must be made with the goal of reducing barriers to performing work.
  • Employers should also carefully evaluate their Workers Compensation Light Duty Programs immediately.

 

New Pregnancy Protections Impacting ALL Illinois Employers!!

Contributed by Jeffrey A. Risch

HB 8, pushed through the Illinois Legislature and ready to be signed into law by Governor Quinn, amends the Illinois Human Rights Act to add to the list of employment discrimination, an employer’s failure to provide a reasonable accommodation to an employee based on conditions related to pregnancy or childbirth. The new amendment will create a legal quagmire for Illinois employers. Employers currently must balance the rights of employees under the current Illinois Human Rights Act (IHRA), the federal Americans with Disabilities Act (ADA), the federal Family Medical Leave Act (FMLA), the federal Pregnancy Discrimination Act (PDA) and the Illinois Workers’ Compensation Act (IWCA). The amendment’s “reasonable accommodations” requirements cover much broader issues and mandate greater responsibilities on employers than current laws covering other protected groups.

HB 8 provides leave rights to all employees well beyond FMLA: The impact of these changes could be devastating to employers. The definition of“reasonable accommodation” includes “time off to recover from childbirth; and leave.”

  • FMLA applies to employers of 50 or more. HB 8 covers all Illinois employers.
  • FMLA provides up to 12 weeks of unpaid leave. HB 8 has no limits on the term of leave. An employer could be required to hold a position open indefinitely.
  • FMLA has employee eligibility requirements of work of 1,250 hours in the past 12 months. No eligibility requirements are in HB 8.
  • FMLA provides that individuals who have used up all or part of their 12 weeks for other purposes cannot use that time for another serious medical condition within the same 12-week period. HB 8 allows unlimited leave for pregnancy, childbirth or conditions related to the pregnancy or childbirth.

HB 8 allows the employee, probationary employee and job applicant to pick the accommodation and employer must accommodate unless the request creates an “undue hardship”.

HB 8’s definition of “pregnancy” is expansive. “Pregnancy” is defined as pregnancy, childbirth or conditions related to pregnancy or childbirth. Could it include infertility???  Could it include certain activities related to ovulation???

No other state has as extensive statute as proposed in HB 8. 

Illinois employers OF ALL SIZES and industries must understand the new amendment!  It will completely reshape how all employers function in Illinois.  

EEOC Advisory Letter Makes Clear that “Sample” ADA Policies and Forms Can Get You in Trouble

Contributed by Michael Wong

The internet can be an excellent resource, but it can also be a very dangerous resource. Recently, the EEOC issued an advisory letter addressing a sample ADA policy and sample forms for responding to an accommodation request that were posted on a state agency’s website. Although the sample policy and forms were posted by a state agency, the EEOC advisory letter identified several parts of the sample policy and forms that would be considered as violating the ADA.

The EEOC advisory letter specifically states that setting absolutes in how circumstances are addressed in an ADA policy is dangerous. A one size fits all approach will not work and reasonable accommodation requests must be reviewed on an individualized basis. For example, the advisory letter provides that it is not recommended to have an ADA policy state that you are not required to permit “unscheduled (erratic, unpredictable, intermittent) or excessive absenteeism or tardiness as a reasonable accommodation,” as such is not only unclear, but the ADA may require you to do so in certain circumstances.

The advisory letter also makes clear that what is considered a reasonable accommodation is evolving with technology and positions. Specifically, the letter states that telecommuting is a reasonable accommodation, depending on the circumstances and position. This is in line with the recent Seventh Circuit case, EEOC v. Ford Motor Co., in which the court held that telecommuting was a reasonable accommodation for an employee with irritable bowel syndrome based on her position and the circumstances.

In addressing sample forms, the EEOC cautions that forms often include many questions that may not be applicable to every situation. Indeed, employers should only be asking questions that are necessary to establish that the person has a disability (unless it is obvious) and/or needs a reasonable accommodation. As such, if you are going to use a form, the questions should be simple and straightforward like the following:

  • The nature of the employee’s impairment and its expected duration?
  • The kind of activities, including major bodily functions, that the impairment affects?
  • The way in which the activities are affected?
  • The use of mitigating measures and the extent to which they eliminate or control the impact of the medical condition?

The takeaway from the EEOC advisory letter is to review your ADA policies and procedures to make sure they are in line with the current law. Additionally, if you use forms to address accommodation requests, you should consider using forms that have simple and straightforward questions and that can be modified depending on the request and the circumstances.

 

ADA Claims to Proceed to Jury Trial Despite Safety Concerns

Contributed by Suzanne Newcomb

A federal court in Indiana ruled recently that a GE manufacturing employee could present her ADA claims to a jury despite concern that accommodating her disability posed a safety risk. Cindy English’s permanent restrictions prevent her from reaching above her head. She was awarded a repair operator position based on seniority but GE’s medical staff concluded her restrictions prevented her from performing the job.

English suggested she could perform the job if she used a stool. GE considered allowing English to demonstrate whether she could perform the job using the stool, but ultimately concluded without the demonstration that using a stool so close to an assembly line posed a safety hazard and gave the position to another employee.

This case illustrates how important it is for employers to fully engage in the interactive process. Despite a formal process for addressing accommodation requests and evidence that it engaged in an interactive process, at least to some extent, the judge still found GE’s efforts lacking. She noted that the suggested demonstration could have definitely shown whether the stool would have allowed English to perform the job and whether using the stool posed a safety hazard. Had GE gone through with the demonstration and legitimately concluded that the stool did in fact pose an unacceptable safety risk, it is likely the judge would have granted GE’s motion for summary judgment and dismissed English’s claims.

How do you avoid a similar fate? As soon as you learn of a possible accommodation request, engage the employee and document the interactive process. Provide the employee with a current and accurate job description and ask the employee in writing:

1.  Can you perform the essential functions of your job at this time?

2.  Could you perform the essential functions of your job with reasonable accommodation? If so, suggest reasonable accommodations that will allow you to perform the essential functions of your job.

3.  If you cannot perform the essential functions of your job with reasonable accommodation now, will you be able to do so in the foreseeable future?

a. If so, when?

b. If not, is there an open position for which you are qualified that you believe you can perform with reasonable accommodation?

While the employee may not dictate what reasonable accommodation the employer provides, employers have an affirmative obligation to engage in the interactive process and to provide accommodations that are reasonable. The questions outlined above open the interactive process dialogue the ADA requires. From there, the ADA requires employers to assess each case individually and make decisions on a case by case basis. It is essential that employers have experienced employment counsel involved from the onset to avoid falling into the ADA’s many traps.