I’m tall: 6’5″. My wife is short: 5’1″ (on a good day). As she likes to put it: “I’m short, but mighty!!” Thus, she should read this blog and be unsurprised that her stature does not give her any rights under the Americans with Disabilities Act. See Colton v. FEHRER Auto. N.A., LLC, No. 4:19-cv-653-CLM, 2020 WL 2132026 (N.D. Ala. May 5, 2020).
Nicole Colton is 4’6″ tall. She was assigned by a temporary work agency to FEHRER’s plant in Gadsden, Alabama. When Ms. Colton was assigned to the assembly line, her short stature limited her reach and her ability to perform the job. Her requests for reassignment to a different position in the plant were refused and she was terminated because she was “not a good fit.”
Ms. Colton sued for disability discrimination under the Americans with Disabilities Act and FEHRER moved to dismiss her complaint. United States District Court Judge Corey L. Maze found that her height did not meet the definition of a “disability.” Importantly, Judge Maze did notrule that all short people are barred from the benefits of the ADA. Instead, he focused on the ADA’s implementing regulations and found that only physical impairments involving “some type of disorder or pathology of the body” qualify for protection. Thus, Ms. Colton’s height was not a “disability,” but a physical “characteristic.”
Judge Maze also rejected Ms. Colton’s argument that she was “regarded as” disabled. To satisfy that legal requirement, she was required to show “that FEHRER perceived that Colton’s height resulted from a physiological disorder or condition, thereby rendering her disabled under the ADA.” But, Ms. Colton possessed no evidence to support such a showing.
Again, it is important to note that Judge Maze did not create a categorical rule denying all short people the protection of the ADA. There are undoubtedly numerous physiological disorders or conditions that can result in decreased height. But, people like my wife, who are just short because of genetics, will not receive protection.
I’ve gotten a few calls this week from clients concerned about coronavirus. My clients have employees returning from travel to China/Korea/Japan and want advice on protecting the employee, their customers and co-employees. From a practical perspective, the Centers for Disease Control have issued guidance for business owners on responding to coronavirus in the workplace: CDC Coronavirus Guidance.
I. Legal Issues
From a legal perspective, employers have two primary statutes that relate to their employees and coronavirus: (1) the Occupational Safety and Health Act (“OSHA”); and, (2) the Americans with Disabilities Act.
OSHA has a “General Duty Clause” that requires employers to furnish “a place of employment which [is] free from recognized hazards that are causing or likely to cause the death or serious physical harm to … employees.” In short, employers have a general duty to protect employees from hazards. That’s great, in concept, but how does it apply to coronavirus?
At this stage, employers should take common-sense steps to prevent the spread of contagious illnesses in the workplace. Most employers already have these steps in place. Provide hand sanitizer at multiple locations. Regularly clean and disinfect public areas. Make sick employees stay home. If the cornavirus threat spreads in the United States, there may be increased duties under OSHA for employers to provide personal protective equipment and/or take other measures. But, those are not necessary at this stage.
Generally, the ADA prohibits employers from taking an adverse job action against an employee who is disabled or “regarded as” disabled. So, would the ADA prevent an employer from suspending or terminating an employee who is infected with coronavirus or suspected of infection? I have strong doubts that the ADA would apply. But, I will give my lawyerly disclaimer: Only a judge and/or jury can make a final determination on legal liability. In particular, the transitory nature of any virus is unlikely to amount to a disability under the ADA. Moreover, the Eleventh Circuit has expressly found that an employer’s fearan employee might develop Ebola in the future does not amount to “regarding” the employee as disabled. Here’s a link to a blog post that I wrote about that case:Fear of Future Infection and the ADA. That analysis would seem to apply equally to fear of contraction of coronavirus.
Employers may also want to require their employees to undergo a medical examination. Even though coronavirus might not be a disability, the ADA generally imposes restrictions on medical examinations regardless of an employee’s status as disabled. The EEOC previously issued guidance on steps that an employer can properly take under the ADA relating to a pandemic. Here’s a link to that guidance: EEOC/ADA Pandemic Guidance. In general, employers can ask employees about potential exposure to coronavirus; ask employees how they are feeling; and, require symptomatic employees to stay home.
II. Practical Advice
If one of my Alabama clients has a genuine fear about coronavirus, I have advised them that they should allow asymptomatic employees returning from “hot spots” to work from home, if possible. If work-from-home is not an option, then consider requiring the employee to stay home — and pay the employee at the employer’s expense. If overhead makes gratis leave infeasible, consider requiring the employee to use accumulated paid leave. Employers should consult with counsel before requiring an asymptomatic employee to take unpaid leave.
The Alabama Medical Cannabis Study Commission is proposing legislation that could impact Alabama employers. Here is a link to an article from AL.com discussing creation of the Commission and its work on medical marijuana: Commission Votes to Approve Medical Marijuana
Most notably, the Commission is opening the door to medical cannabis use, but its proposed legislation (which can be found here) takes great pains to educate the public that it does not condone “traditional” marijuana use. For example, the synopsis of the proposed act (which is proposed for codification at Ala. Code §§ 20-2A-1 et seq.) says: “this bill would prohibit the ingestion of any raw plant material, and would prohibit any smokeable or vaping product.” To that end, the term “Medical Cannabis” in the legislation does not include:
Raw plant material.
Any product administered by smoking, combustion, or vaping.
A food product that has medical cannabis baked, mixed, or otherwise infused into the product such as cookies or candies.
Moreover, only a limited set of conditions will qualify for treatment by medical cannabis/marijuana, including: cancer; Crohn’s Disease; epilepsy; fibromyalgia; and, HIV/AIDs-related nausea or weight loss.
Section 20-2A-6 of the proposed legislation is designed to give businesses some comfort level with medical cannabis by stating that the proposed act does NOT :
(1) Require an insurer, organization for managed care, health benefit plan, or any person who provides coverage for a medical or health care service to pay for or reimburse a person for costs associated with the use of medical cannabis.
(2) Require any employer to permit or accommodate an employee’s possession or use of a medical cannabis product, to allow the use of medical cannabis in the workplace, or to modify the job or working conditions of an employee who engages in the use of medical cannabis that are based upon the reasonable business purposes of the employer.
(3) Prohibit an employer from refusing to hire, discharging, disciplining, or otherwise taking an adverse employment action against an individual with respect to hire, tenure, terms, conditions, or privileges of employment because of that individual’s possession or use of medical cannabis.
(4) Prohibit an employer from establishing and enforcing a drug testing policy or from implementing a drug-free workforce program established in accordance with Article 13, commencing with Section 25-5-330, of Chapter 5 of Title 25.
(5) Interfere with any federal restrictions on employment, including, but not limited to, regulations adopted by the United States Department of Transportation in Title 49, Code of Federal Regulations.
(6) Permit an individual to commence a cause of action against an employer for refusing to hire, discharging, disciplining, or otherwise taking an adverse employment action against an individual with respect to hire, tenure, terms, conditions, or privileges of employment related to use of medical cannabis.
(7) Require a government medical assistance program, employer, property and casualty insurer, or private health insurer to reimburse a person for costs associated with the use of medical cannabis.
Section 6 above is good for Alabama employers, because its says that they cannot be sued for taking an adverse job action (like termination) against an employee because of their use of legal, medical marijuana. Nevertheless, Section 2 raises some questions for me. The first part of that section says that employers are not required to accommodate an employee’s use of medical cannabis. In other words, employers don’t have to allow employees to use medical marijuana on-the-job. But, the very final phrase of that section tacks-on the words: “that are based upon the reasonable business purposes of the employer.” I’m not sure what the purpose of that phrase was intended to be. It’s possible, however, that somebody could argue that employer arerequired to allow medical cannabis on the job, unless they can demonstrate a “reasonable business purpose” for prohibiting its use. Hopefully, this phrase will be cleaned-up in the legislative process.
Finally, the legislation would also alter Alabama’s Workers Compensation Act:
An employee who is injured or killed while using medical cannabis is ineligible to receive any compensation under Chapter 5 of Title 25, Code of Alabama 1975, if the injury or death was caused by an action or inaction of the employee, even if the employee was in full compliance with Chapter 2A of Title 20, Code of Alabama 1975, at the time of injury or death.
Potentially, that section makes it more difficult for users of legal, medical cannabis to recover workers’ compensation benefits than users of illegal drugs. Alabama Code Section 25-5-51 currently provides: “no compensation shall be allowed for an injury or death caused by … an accident due to the injured employee being intoxicated from the use of alcohol or being impaired by illegal drugs.” Under that law, an employer attempting to deny workers’ compensation benefits must show that an employee was intoxicated and that the intoxication caused the accident in question. Under the Medical Cannabis Commission’s legislation, employers would not be required to prove intoxication. Instead, if an employee is prescribed medical cannabis and suffers an injury caused by the employee’s “action or inaction,” benefits could be denied.
The Alabama Legislature returns to session on February 4, 2020. This proposed legislation will unquestionably be one of the hot topics of that session.
What does it mean for something or someone to be “similar”? That was the existential question recently confronted by the Eleventh Circuit Court of Appeals in a race discrimination case: Lewis v. City of Union City, No. 15-11362, 2019 WL 1285058 (11th Cir. Mar. 21, 2019.) In particular, the Court was concerned with comparators in discrimination cases.
In a typical discrimination case, an employee in a protected class (race, gender, disability, age) will claim that another employee, outside the protected class, was treated better. For example, a female employee who was terminated for tardiness will claim that a male employee was tardy but not fired. In legal jargon, the male employee is considered a “comparator.”
But, comparators need to be similar. A business can have legitimate reasons for excusing the tardiness of a high-level, salaried manager, but not a lower-level, hourly employee. I have discussed the importance of comparators in other discrimination cases Here and Here. Courts can’t compare “apples and oranges.” So, Lewis is an effort by the Eleventh Circuit to provide lower courts with a better analysis for reaching an “apples to apples” comparison.
The United States Supreme Court has previously held that comparators must be “similarly situated.” But, the Eleventh Circuit, and other courts, have struggled with question of just how “similarly situated” a plaintiff and her comparators must be. Different groups of Judges in the Eleventh Circuit have announced different standards to the point that the Lewis court concluded: “It’s a mess.”
Therefore, the Court announced a new standard to be used in all cases going forward: a plaintiff and her proffered comparators must be “similarly situated in all material respects.” Great! But, what does that mean?
At one point in the opinion, the Court suggests that “essential sameness” is a requirement. Yet, the Court also states that the standard “must be worked out on a case-by-case basis.” The Court also identifies four “sorts of similarities” that will underlie a valid comparison:
The compartor will have engaged in the same basic conduct (or misconduct) as the plaintiff.
The comparator will have been subject to the same employment policy, guideline or rule as the plaintiff.
The comparator will ordinarily (although not invariably) have been under the jurisdiction of the same supervisor as the plaintiff.
The comparator will share the plaintiff’s employment or disciplinary status.
The Lewis Court concludes by stating that “a valid comparison will turn not on formal labels, but rather on substantive likenesses.” Moreover, “comparators must be sufficiently similar, in an objective sense, that they ‘cannot be reasonably distinguished.'”
So, what does this mean for Alabama employers? Generally, I think this standard is good for employers. By using phrases like “substantial sameness” and “substantive likenesses,” the Court appears to be signalling that the standard for similarity is high. Nevertheless, the new standard is not effective in helping employers in determining “how high” the bar is. I feel that, in many ways, we are left with Justice Potter Stewart’s famous saying: “I know it when I see it.” As a result, employers in Alabama and the rest of the Eleventh Circuit must simply do their best while the Eleventh Circuit continues to flesh-out the standard on a “case-by-case” basis.
I confess: I’m a big Bruce Springsteen fan. One of his more obscure songs is “From Small Things (Big Things One Day Come).” The song itself has absolutely nothing to do with employment law, but I thought of the title when I read the Eleventh Circuit’s recent opinion in Jones v. Aaron’s Inc., No. 17-14298, 2018 WL 4203459 (Sep. 4, 2018). The Jones case demonstrates that small errors in dealing with employees can have big consequences for employers.
Rosana Jones was a Customer Service Representative for Aaron’s, Inc. She injured her back and took FMLA leave from June 2, 2013 to June 17, 2013. Prior to her injury and FMLA leave, Jones worked 40 hours per week, but upon return her hours were reduced to 32 hours per week. After two weeks working that reduced schedule, Jones complained to her supervisor, who returned her to 40 hours per week. But, Aaron’s did not pay Jones for the 16 hours of missed work.
In October 2013, a new manager was assigned to Ms. Jones’s store, and she clearly had personality conflicts with that manager. Those conflicts culminated in an event where Jones told the manager: “Christ, just be a man. Tell me what your problem is with me.” Based upon that statement and other conflicts, Aaron’s terminated Ms. Jones’s employment.
Ms. Jones sued Aaron’s under the Americans with Disabilities Act and the Family and Medical Leave Act. She focused on: (1) the termination of her employment; and, (2) the loss of 16 work hours when she returned from FMLA leave. A trial court dismissed both of those claims, but the Eleventh Circuit entered a limited reversal.
The Eleventh Circuit found that termination was appropriate, but reversed on the 16-hour issue. Aaron’s claimed that Ms. Jones requested a reduction of hours when she returned from FMLA leave, but Ms. Jones denied any such request. Indeed, there was no documentation of any kind indicating such a request. Instead, viewing the evidence most favorably for Ms. Jones, it appeared that Aaron’s management implemented the reduction of hours.
After Ms. Jones filed her lawsuit, Aaron’s paid her for the sixteen hours. While the dollar amount is not mentioned in the Jones opinion, I suspect that the payment was only a few hundred dollars — at most. After making that payment, Aaron’s essentially argued “no harm, no foul.” But, the Eleventh Circuit was not persuaded: “Employers cannot escape liability for adverse employment decisions by making retroactive payments to aggrieved employees. …. Moreover, Aaron’s late payment to Jones does not alter the fact that Jones was denied payment because of an FMLA violation, nor does it erase the injury caused by this alleged FMLA violation — specifically the lost value and use of the funds in the three years before she received payment.”
For Aaron’s, the practical impact of its small error will probably result in a much larger financial result. The Eleventh Circuit’s opinion clears the way for a jury trial on the FMLA violation. Most likely, the parties will settle that claim before trial. And, the primary beneficiary of any settlement will be Ms. Jones’s lawyers. The value of Ms. Jones’s FMLA claim for 16 hours is very low. But, her lawyers will certainly claim that they are entitled to thousands of dollars of in attorneys’ fees for successfully pursuing the claim. As a result, an error of several hundred dollars by Aaron’s will probably cost them thousands of dollars to resolve.
For employers, the practical lesson from Jones is: be willing to admit when you’ve made a mistake. If Aaron’s paid Ms. Jones before she filed suit, or if Aaron’s paid her for “the lost value and use of the funds,” the result of the case might have been much different. By waiting to correct a violation, however, Aaron’s small error potentially resulted in much larger financial consequence.
Many employers offer their employees the benefit of an Employee Assistance Program (“EAP”). An EAP is an intervention program that is designed to assist employees in resolving personal problems that may affect their performance. There are many types of EAPs, but they usually involve referral for some type of counseling and/or treatment. I frequently see EAPs provided for employees who have substance abuse issues.
Obviously, substance abuse is an important issue in the workplace. And, employers justifiably want employees who are committed to overcoming substance abuse problems. So, what happens if an employee suffering from substance abuse fails to comply with the terms of an EAP? In some cases, an employer might be justified in terminating such an employee. See Jacobson v. City of West Palm Beach, No. 17-12716, 2018 WL 4355863 (11th Cir. Sep. 12, 2018).
In Jacobson a firefighter self-medicated with marijuana for stress, anxiety and depression. He self-reported his marijuana use to an Assistant Fire Chief and was referred to a mandatory Employee Assistance Program. That program required Mr. Jacobson to attend six therapy sessions with the goal of becoming “Drug Free.” Unfortunately, Mr. Jacobson missed his fifth therapy session due to oversleeping. The EAP’s case manager reported to the Fire Chief that Mr. Jacobson was out of compliance with the EAP. The Fire Chief then reviewed the city’s collective bargaining agreement with firefighters, which provided: “Failure to comply with the prescribed treatment program will result in termination of employment.” Based upon that language, the Fire Chief terminated Mr. Jacobson’s employment.
Mr. Jacobson sued and claimed that the City violated the Americans with Disabilities Act. According to Mr. Jacobson, he was fired because of his depression and anxiety. A trial court ruled in favor of the City and the Eleventh Circuit Court of Appeals affirmed that decision. The Eleventh Circuit refused to find that the City was required by the collective bargaining agreement to fire Mr. Jacobson. Nevertheless, the Fire Chief’s reasonable belief that he was required to terminate was a sufficient, non-discriminatory reason for the termination decision.
Jacobson does not provide employers with carte blanche authority to terminate every employee who fails to comply with some aspect of an EAP. Indeed, the Eleventh Circuit noted that Mr. Jacobson failed to request a “reasonable accommodation” under the ADA to make-up the missed EAP session. Nevertheless, failure to comply with the terms of an EAP can, in some circumstances, justify termination.
In recent years, several of my clients have been threatened with lawsuits for allegedly violating Title III of the Americans with Disabilities Act. Title III of the ADA ensures that individuals with disabilities are not discriminated against by owners or operators of places of public accommodation such as shopping centers, restaurants, offices and amusement parks. Typically, Title III claims focus on the ability of people with disabilities to fully access stores and other places of public accommodation. Here’s an article from AL.com a few years ago discussing the increase in these types of lawsuits: ADA Lawsuits Against Businesses on the Upswing. The issue has become significant enough that the United States House of Representatives has passed the ADA Education and Reform Act. Here’s an article by the Alabama Retailers Association discussing that legislation: ADA Reform Act. The Senate has not yet passed or approved similar legislation, however.
Therefore, businesses need to be proactive in protecting themselves from ADA claims. The best way to protect yourself is to hire an expert (usually an architect) to review your business and ensure that it complies with the ADA’s accessibility requirements. But, what happens if you get a letter, or a lawsuit, claiming that you’ve violated the law?
At that point, you have a business decision to make. No matter what, if you’ve truly violated the ADA (even unintentionally) you need to fix the problem. But, many times these lawsuits focus on highly technical issues that leave room for debate over whether there’s been a violation. In other cases, the “fix” requested by an ADA customer may be more expensive than is “readily achievable.” You need to consider all available financial factors (such as cost of repair and cost of paying your attorney) in deciding whether you want to fight a claim that you violated the ADA.
In most cases, the central issue won’t be the cost of repairs, but the cost of attorneys’ fees to pay the lawyer representing the disabled customer. Many times, lawyers file lawsuits for small violations of the ADA in hopes of generating substantial legal fees that can be awarded by a judge to a “prevailing party” in an ADA case.
In most cases, I advise my clients to fix any alleged ADA violations that can be quickly remedied. To that end, one strategy is to fight over matters that are not truly violations, or “solutions” that are not readily achievable. That strategy was followed successfully by the business-owner in Kennedy v. Omegagas & Oil, LLC, No. 18-10102, 2018 WL 4183462 (11th Cir. Aug. 31, 2018).
In Kennedy, it appears that the business-owner drew the metaphorical “line in the sand.” A wheelchair-bound customer visited a gas station/convenience store and noted numerous violations of the ADA including: an improperly marked and blocked handicapped parking space; unsecured floor mats; a pedestal sink in the bathroom, which would prohibit her from utilizing the sink; sink and doorknob hardware in the shape of knobs, which require gripping and twisting to operate; missing or improperly placed grab bars near the toilet; a flush control on the incorrect side of the toilet; and a paper towel dispenser located too high to be reached. The owner quickly began work to fix those alleged violations. Nevertheless, the parties argued over the plaintiff’s request to increase the maneuverable space in the store’s bathroom.
By the time of trial, every alleged violation except the maneuverable space was fixed. As a result, the trial judge found that the ADA claims for those violations were “moot,” and that the plaintiff did not possess a claim. With regard to the maneuverable space issue, the trial court found that the renovations required to obtain sufficient maneuverable space were not “readily achievable.” In an existing building, the ADA states that discrimination includes a private entity’s “failure to remove architectural barriers … where such removal is readily achievable. ” 42 U.S.C. § 12192(b)(2)(A)(iv)). “Readily achievable” is defined under the ADA as “easily accomplished and able to be carried out without much difficulty or expense.” 42 U.S.C. § 12181(9).
The trial judge found that the plaintiff failed to meet her burden of demonstrating renovations for more maneuverable space were “readily achievable.” In particular, the plaintiff failed to rebut the business owner’s evidence that it would cost $80,000 or more, and would require him to close the gas station and store during renovation.
The Eleventh Circuit carefully reviewed the trial court’s decision and affirmed it on appeal. I have not talked to any of the lawyers involved in this case, but I strongly suspect that the real issues were “mootness” and attorneys’ fees. Based upon my experience, I believe that the plaintiff’s attorney asked to be paid an attorneys’ fee for obtaining a remedy of the violations that were quickly fixed by the gas station/convenience store owner. If the owner paid a fee to the lawyer, I suspect that the plaintiff would have agreed that maneuverable space in the bathroom would not be “readily achievable.”
But if a business-owner refuses to payoff the plaintiff’s attorney, that attorney can only get paid if he goes to court and persuades a judge that there’s been a violation of the ADA. In short, the business owner was taking a risk. If the trial judge found that the claims weren’t “moot,” the owner would have to pay attorneys’ fees. Similarly, if the trial judge found that the improving the maneuverable space fix was “readily achievable,” the owner would have to pay attorneys’ fees.
Some business owners might be thinking: “Great! I’ll fix the cheap problems and fight the expensive ones, and everything will turn out OK.” Not so fast, my friend! You need to carefully review all factors with your lawyer before making this kind of final decision in an ADA public accommodation case. The trial judge possesses a tremendous amount of discretion in determining whether accessibility issues are “moot.” A different judge could easily have reached a different conclusion and imposed liability on the gas station/convenience store owner — even for the problems that he quickly fixed. So, proceed cautiously, but know that, in some cases, there are defenses to Title III ADA public accommodation claims.
A recent decision from the Northern District of Alabama reinforces that the Americans with Disabilities Act (“ADA”) does not guarantee disabled employees an accommodation of their choosing. Instead, accommodations offered by an employer only need to be “reasonable.” See Maddox v. ALDOT, No. 2:15-cv-00312-MHH, 2018 WL 3241212 (N.D. Ala. Jul. 3, 2018).
In Maddox, the employee suffered from allergies to dust and asphalt, and also worked for the Alabama Department of Transportation (“ALDOT”). ALDOT provided numerous accommodations to Ms. Maddox. ALDOT allowed her to leave work anytime asphalt fumes affected her breathing. It provided an air purifier and replaced the air ventilation system in Ms. Maddox’s building. ALDOT even relocated an asphalt lab to the rear of the building in which Ms. Maddox worked. ALDOT also offered to transfer Ms. Maddox to a different office in Shelby County, but Ms. Maddox declined and requested a transfer to ALDOT’s main office in Montgomery. However, the main office was undergoing mold remediation and ALDOT would only permit the transfer if her doctor stated that the main office would be a safe environment. When Ms. Maddox’s doctor declined to issue such an opinion, she argued that ALDOT should allow her to take sick leave until a clean-air environment could be created. ALDOT declined to provide such leave.
Ms. Maddox sued under the ADA claiming that ALDOT failed to provide a reasonable accommodation for her alleged disability. For purposes of deciding the case, United States District Court Judge Madeline Hughes Haikala assumed that the allergies amounted to a “disability” under the ADA. Nevertheless, Judge Haikala focused upon the fact that the ADA only requires “reasonable accommodations.” Indeed, it is well-established that a qualified individual with a disability is “not entitled to the accommodation of her choice, but only a reasonable accommodation.” Stewart v. Happy Herman’s Chesire Bridge, Inc., 117 F.3d 1278, 1286 (11th Cir. 1997).
Judge Haikala noted her sympathy with Ms. Maddox’s frustration, but held that the ADA “does not require an employee to create an environment completely free of fumes, dust, mold or other allergens to accommodate an employee’s health condition.” Judge Haikala found that ALDOT’s proffered accommodations were reasonable; therefore, she dismissed Ms. Maddox’s case.
Maddox provides excellent guidance for employers struggling to accommodate employees’ health conditions. In most cases, employers should follow ALDOT’s lead and attempt to find some solution/accommodation for the employees’ health issues. But, at some point, requested accommodations cross the line from “reasonable” to unreasonable. In those cases, the employer’s other efforts to provide reasonable accommodations can help prove that the employee’s requested accommodation is not reasonable.
****For lawyers/lovers of the law**** Maddox was decided under Section 504 of the Rehabilitation Act of 1973. In employment cases, the standards of the Rehabilitation Act are the same as the standards applied under Title I of the ADA.
In the waning days of George W. Bush’s presidency, he signed the Americans with Disabilities Act Amendments Act (“ADAAA”). The ADAAA implemented several changes to the Americans with Disabilities Act of 1990. The change that has been most problematic for my clients is the liberalization of claims for being “regarded as” disabled.
The ADA protects employees from employment actions which are taken because they: (1) suffer from a disability; (2) have record of a disability; or, (3) are “regarded as” disabled by the employer. The third prong protects employees who are not actually disabled, but whose employers treat like they are disabled. Under the 1990 version of the ADA, it was difficult for an employee to prevail on a “regarded as” claim, because the employer must have wrongly believed that the employee was “substantially limited” in a major life activity (like walking or working). The ADAAA made it much easier for employees to sue for a “regarded as” disability. Now, an employee “need demonstrate only that the employer regarded him as impaired, not that the employer believed the impairment prevented the [employee] from performing a major life activity.” Wolfe v. Postmaster General, 488 Fed. Ap’x. 465, 568 (11th Cir. 2012).
In December, the Eleventh Circuit Court of Appeals reviewed the liberalized standards of the ADAAA, and made it extremely easy for an employee to prove they are “regarded as” disabled: “an employer that takes an adverse action because it fears the consequences of an employee’s medical condition has regarded that employee as disabled.” Lewis v. City of Union City, 877 F.3d 1000, 1012 (11th Cir. 2017).
In the real world, employers frequently take action because they fear the consequences of an employee’s medical condition. As a result, the ADAAA and the Lewis decision make it much easier for employers to be sued based upon reasonable business decisions. Employers can still avoid liability by showing that the employee could not perform the “essential functions” of his or her job, or that the employee was a “direct threat” to themselves or others. Nevertheless, employers who are contemplating taking any action against an employee because of that employee’s impairment should proceed very cautiously.
The Americans with Disabilities Act (“ADA”) is intended to ensure that individuals with disabilities do not suffer discrimination in the workplace. Even so, the ADA does not grant special status to individuals with disabilities, so that they are treated more favorably than other employees. One of the key requirements of any workplace is productivity. Disabled employees must meet the same productivity standards as other employees.
This concept is acknowledged even by the EEOC: “An employee with a disability must meet the same production standards, whether quantitative or qualitative, as a non-disabled employee in the same job.” The EEOC’s entire discussion of performance standards can be found here: Applying Performance And Conduct Standards To Employees With Disabilities. As you probably know, the ADA requires that “reasonable accommodations” must be made for disabled employees. But, the EEOC also acknowledges that an employer is not required to decrease productivity standards as an “accommodation”: “Lowering or changing a production standard because an employee cannot meet it due to a disability is not considered a reasonable accommodation.”
The Eleventh Circuit Court of Appeals recently upheld productivity requirements in Singleton v. The Public Health Trust of Miami-Dade County, No. 17-12282, 2018 WL 679389 (11th Cir. Feb. 2, 2018). In Singleton, a physician was required to treat a minimum number of patients each day. Yet, it was undisputed that he was unable to meet those productivity requirements. As a result, even though the physician may have been “disabled,” he was not a “qualified” individual with a disability. A “qualified” individual must be able to perform the essential functions of the job. Because productivity was an essential function, and the physician could not perform that function, he could be terminated without violating the ADA.
Employers should always proceed cautiously when contemplating the termination of a disabled employee. In fact, the EEOC suggests that an employer might have a duty to eliminate “marginal” functions of a job in order to assist an employee in meeting productivity requirements. Therefore, I strongly encourage Alabama employers to conduct a thorough analysis before terminating a disabled employee.