ADA

ADA: Indefinite Extension of Leave Is Not a Reasonable Accommodation

Robert C. Lockwood1 Comment
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ADA Indefinite Leave Reasonable Accommodation
Indefinite Leave Is Not a Reasonable Accommodation Under the ADA.

Employers are not required to give indefinite extensions of leave as a reasonable accommodation under the Americans with Disabilities Act (“ADA”).  Luke .v Board of Trustees of Fla. A&M Univ., No. 15-13995, 2016 WL 7404677 (11th Cir. Dec. 22, 2016).  In Luke, the plaintiff was a patrol office for the Florida A&M University police department.  She injured her knee and took leave in September 2013.  On June 10, 2014, after an approved nine-month leave, she requested an extension of leave based upon her doctor’s assessment that she would be unable to work patrol shifts for “at least another six months.”  Florida A&M denied that request and terminated her employment.

The Eleventh Circuit Court of Appeals affirmed the dismissal of the patrol officer’s ADA law suit. Among other things, the officer claimed that Florida A&M failed to provide her with a reasonable accommodation, when it refused to extend her leave.  The Eleventh Circuit rejected that argument:  “While a leave of absence might be a reasonable accommodation in some cases … an accommodation is unreasonable if it does not allow someone to perform his or her job duties in the present or in the immediate future.”  Luke, 2016 WL 740467 at *3 (emphasis added).  The Court found that the six-month extension request did not satisfy the “present or immediate future” requirement.

The Luke decision provides an interesting contrast to the position taken by the EEOC regarding leave as a reasonable accommodation.  On May 9, 2016, the EEOC published its position that employer-provided leave is a required accommodation under the ADA.  That publication can be found here:  EEOC ADA Leave Publication

The EEOC’s position avoids any reference to the Eleventh Circuit’s “present or immediate future” requirement.  Instead, the EEOC seeks to shift the burden to employers to prove that a particular leave would an “undue burden.”  Fortunately for employers, the Eleventh Circuit does not appear to be overly persuaded by the EEOC’s publication.  In the same paper, the EEOC took the position that employers are required to place a disabled employee “in a vacant position for which he is qualified without requiring the employee to compete with other applicants for open positions.”  The Eleventh Circuit rejected that position earlier this month in an opinion that I discussed here:  Job-Competition Policy Can Be a Defense to ADA

Luke provides some guidance to employers — a six month leave request does not meet the “present or immediate future” requirement.  For shorter leave requests, however, employers should proceed with caution, because the Eleventh Circuit has not provided guidance on the “immediate future” requirement.

Asperger’s at Work: Potential for Conflict Between Title VII and ADA

Robert C. Lockwood
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autism

A recent decision from the Eleventh Circuit Court of Appeals demonstrates difficult decisions that may face employers when they hire employees with Asperger’s syndrome.  Furcron v. Mail Centers Plus, LLC, No. 15-14595, 2016 WL 7321211 (11th Cir. Dec. 16, 2016).  Asberger’s is generally considered a “high functioning” form of autism.  Affected persons “have difficulty with social interactions and exhibit a restricted range of interests and/or repetitive behaviors.” https://www.autismspeaks.org/what-autism/asperger-syndrome

In Furcron, Myra Furcron was a female mailroom clerk, who claimed that she was sexually harassed by Daniel Seligman, a male mailroom clerk suffering from Asperger’s.  Furcron claimed that Seligman attempted to look down her shirt and at her underwear when she bent over.  She also claimed that Seligman would intentionally bump against her and rub his erect penis against her.  When she complained, Furcron’s supervisor responded “that Seligman meant no harm, and that his conduct should be tolerated because of his disability.”  Furcron, 2016 WL 7321211 at *2.  Although a trial court dismissed Ms. Furcron’s claims, the Eleventh Circuit found sufficient evidence of sexual harassment to warrant a jury trial.

Another case involving Asperger’s is Taylor v. Food World, Inc., 133 F.3d 1419 (11th Cir. 1998). In Taylor, the plaintiff suffered from Asperger’s and was a utility clerk who bagged groceries and assisted customers with their groceries.  He was terminated after three customers complained that he was “loud, overly friendly and overly talkative.”  He sued for violations of the Americans with Disabilities Act.  The Court found that one of the essential functions of the job was “the ability to carry out the tasks of the job without offending customers.”  Taylor, 133 F.3d at 1424.  Nevertheless, the Court found sufficient evidence to warrant a jury trial, because some managers and employees testified that they received no complaints and observed no inappropriate behavior.  Additionally, there were questions of fact regarding whether the questions asked by the plaintiff to customers were offensive or inappropriate.

A final case merits discussion, even though it deals with Tourette’s syndrome instead of Asperger’s.  Ray v. Kroger Co., No. 03-12919, 2003 WL 23018292 (11th Cir. 2003).  In Ray, a grocery store employee’s condition caused him to blurt out racial slurs on a daily basis.  As an accommodation to his disability, the store allowed him to pass out cards to customers explaining his condition, and transferred him to the night shift when fewer customers were in the store.  Nevertheless, three customers complained about bizarre and anti-social behavior, and a contractor complained about a perceived racial insult.  The Court affirmed dismissal of Ray’s ADA case, because he could not demonstrate that he could perform the essential function of “interacting with customers without insulting them.”

These cases seem to place employers in a Catch-22 situation.  If they discipline an employee for behavior related to their disability, they face the threat of a law suit for violating the Americans with Disabilities Act.  But, if they fail to discipline the employee, the employee could then commit acts (like the alleged sexual harassment in Furcron) that get the employer sued by other employees or third-parties.

Employer should proceed slowly if they encounter performance issues from employees suffering from Asperger’s, Tourette’s or other conditions that affect behavior.  Ray and Taylor both suggest that it may be possible to discipline such employees without violating the ADA.  To do so, however, employers need to establish, at a minimum that:  (1) the ability to interact with customers and co-workers without offending them is an essential function of the job; and, (2) abundant evidence existed demonstrating the employee’s inability to fulfill that essential function.

If You Can’t Stand the Heat, Don’t File an ADA Claim

Robert C. Lockwood
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ADA Summer Heat essential functions
An inability to work in summer heat can make an employee unqualified to perform the essential functions of a job under the ADA.

If an employee cannot work outside in the summer heat, she is unqualified for a job that requires outside work and cannot file a claim under the Americans with Disabilities Act.  This point was confirmed by the Eleventh Circuit Court of Appeals in Perry v. City of Avon Park, No. 15-14525, 2016 WL 6819669 (11th Cir. Nov. 18, 2016).  As discussed below,  Perry provides at least two tips for employers to follow.  First, a written job description helps establish the essential functions of a job.  If the employee cannot perform the essential functions found in a job description, it is very difficult to win a claim under the ADA.  Second, employers are not required to change their job descriptions as an accommodation to employees with medical conditions.

In Perry, the employee was employed as a maintenance technician/assistant.  Her primary duties took place outside doing manual labor in Avon Park, Florida.  Ms. Perry was recovering from breast cancer and also suffering from mental health issues.  A physician placed work restrictions on Ms. Perry to avoid direct sunlight and to work no more than four hours outside in temperatures above 50 degrees and below 80 degrees.

The City actually tried to accommodate Mr. Perry and gave her a thermometer with instructions to return to City Hall if temperatures exceeded her threshold.  Because Avon Park is located in South Florida, the temperature restriction was exceeded almost immediately.  When the City asked Ms. Perry’s physician if there was any possibility of accommodating Ms. Perry’s restrictions, the physician stated that there was no way Ms. Perry could work unless the temperature restrictions were met.

The City terminated Ms. Perry’s employment, and she sued under the ADA.  The Eleventh Circuit found that Ms. Perry was not qualified for her position because she could not perform the essential functions listed in her written job description — the majority of which required outside work.  The Court also rejected two “reasonable accommodations” proposed by Ms. Perry.

First, the Court found that Avon Park was not required to change her job description to eliminate the essential function of outside work.  Second, the Court found that Avon Park was not required to abide by the physician’s restrictions, because those restrictions would prevent Ms. Perry from performing the essential function of outside work on a consistent basis.

Perry demonstrates that written job descriptions are extremely important to defending ADA claims.  If an employee cannot perform the essential functions of a job as listed in a job description, it will be very difficult for them to establish a claim for disability discrimination.

 

Job-Competition Policy Can Be a Defense to ADA

Robert C. Lockwood
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Reasonable accommodation competition ADA
Employers Can Require Disabled Employees To Compete For Open Positions Without Violating Reasonable Accommodation Requirements

On Wednesday, the Eleventh Circuit Court of Appeals held that the Americans with Disabilities Act (“ADA”) does not require employers to forego a job-competition policy as part of the reasonable accommodation process for disabled employees.  See EEOC v. St. Joseph’s Hosp., No. 15-14551, 2016 WL 7131479 (11th Cir. Dec. 7, 2016).

In the St. Joseph’s case, Leokadia Bryk was a nurse in the psychiatric ward of St. Joseph’s hospital.  After 7 years on the job, spinal stenosis and a hip replacement caused her to use a cane for assistance walking.  The hospital found that the cane prevented her from performing the essential functions of her job, because psychiatric patients could use the cane as a weapon.

After making that safety determination, the hospital gave Ms. Bryk 30 days to identify and apply for other positions.  The hospital waived its typical internal transfer policy, which would have prohibited Bryk’s transfer, because she received a disciplinary warning. The hospital also made its Manager of Team Resources available to help Ms. Bryk with the process.

The hospital did not waive its policy which required internal applicants to compete for positions. Ms. Bryk applied for a position as an Education Specialist at the hospital and met the minimum requirements for the position.  Nevertheless, the managers hiring the Educational Specialist found that she was not the most qualified applicant and rejected her application.  The hospital terminated Ms. Bryk’s employment when she did not obtain another internal job at the hospital.

The EEOC sued for Ms. Bryk and argued that the reasonable accommodation requirements of the ADA required noncompetitive reassignment of Ms. Bryk to the Education Specialist position because she met the minimum requirements for the job.  The Eleventh Circuit disagreed, finding that “the ADA does not require reassignment without competition for, or preferential treatment of, the disabled.”  St. Joseph’s, 2016 WL 7131479 at *8.  “Passing over the best-qualified applicants in favor of less-qualified ones is not a reasonable way to promote efficiency or good performance.  In the case of hospitals, which is this case, the well-being and even the lives of patients can depend on having the best-qualified personnel.”  Id. at *9.

The Eleventh Circuit left open a small possibility that “special circumstances” might require waiver of a job-competition policy, but did not find any such circumstances in Ms. Bryk’s case.  Thus, St. Joseph’s provides some assurance to employers that, in most cases, they will not violate the ADA’s reasonable accommodation policies by requiring disabled employees to comply with a job-competition policy.

Employment Termination: “Get your sh!t and leave.”

Robert C. Lockwood
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Employment Termination: "Get your shit and leave"
A supervisor told an employee: “Get your shit and leave.”

A Huntsville employer is going to trial because a supervisor told an employee:  “Get your shit and leave.”  Griffith v. Nicholas Financial, Inc., No. 5:14-cv-02330-MHH, 2016 WL 5724725 (N.D. Ala. Sept. 30, 2016).  Based upon that statement, and other facts, Judge Madeline Haikala found that the employee could reasonably believe that her employment was terminated.

Krysti Griffith suffers from lupus and claims that her employer, Nicholas Financial, discriminated against her and terminated her employment in violation of the Americans with Disabilities Act.  Prior to November 2013, Ms. Griffith generally had a good working relationship with her supervisors.  In November 2013, however, Ms. Griffith was denied a promotion and the evidence in the case indicated that her relationship with her supervisors deteriorated thereafter.  In December 2013, her desk was moved to the front of her office facility and she objected, because she feared that sunlight in her new location might cause a flare-up of her lupus.  Then, she missed work on January 20 and 21, 2014 because of a lupus flare-up.  On January 29, 2014, Nicholas Financial, began interviewing candidates to replace Ms. Griffith, and she found out about those interviews.  Later on January 29, 2014, Ms. Griffith received a negative performance evaluation from her immediate supervisor.

On January 30, 2014, Ms. Griffith spoke with Nicholas Financial’s district manager, who scolded Griffith for a “bad attitude” and commanded her to “get her shit and leave.”  Ms. Griffith then packed her belongings and left the facility.  She did not return to work.

Nicholas Financial argued that the district manager did not actually terminate Ms. Griffith’s employment.  Instead, it argued that Ms. Griffith was merely being sent home for the day, and that Ms. Griffith voluntarily resigned when she packed her belongs and left the facility.

Judge Haikala found that she was required to determine whether plaintiffs in the position of Ms. Griffith would have “reasonably concluded that their employers had terminated their employment taking into account all of the circumstances surrounding the employees’ separation from the employers.”  Griffith, 2016 WL  5724725 at *7.  Judge Haikala found that Nicholas used language or engaged in conduct that would logically lead a prudent person to believe that she had been terminated — particularly in light of the poor job review, the interviews of other candidates and the command to leave.

Nicholas argued that the district manager never explicitly told Ms. Griffith that she was fired.  But, “an employer need not use the term’fired’ in order for a discharge to occur.”  Id. at *8.  Judge Haikala was required to view the facts favorably for Ms. Griffith, and in doing so Judge Haikala determined that a jury should decide whether Ms. Griffith was fired or quit.

Griffith presents a simple warning to Alabama employers:  “Anything you say can, and will, be used against you in a court of law.”  The district manager might not have intended to terminate Ms. Griffith.  But, when emotions ran high a statement was made that ultimately forced the employer to trial.  When communicating with employees about performance issues, try to keep emotions in check and communicate as clearly as possible.

 

 

Trust Your “Company Doctor” and Violate the ADA

Robert C. Lockwood
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Physician Disability Discrimination
Reliance Upon a Doctor’s Advice Can Result in Disability Discrimination

Relying upon advice from a physician could cause employers to unintentionally commit disability discrimination in violation of the Americans with Disabilities Act (ADA).  The ADA permits employers to terminate employees with a disability if those employees represent a “direct threat” to the safety of themselves or others.  Employers frequently rely upon doctors to determine if the employee represents a “direct threat.”  One federal judge in Alabama has found that reliance upon a doctor’s opinion on the “direct threat” issue can be discrimination.  See Pollard v. Drummond Co., Inc., No. 2:12-CV-03948-MHH, 2015 WL 5306084 (N.D. Ala. Sep. 10, 2015).

In Pollard, Mr. Pollard worked in a coal mine and injured a finger on-the-job.  He was sent to an in-house physician for treatment of the finger injury and disclosed to the physician that he was taking a prescribed narcotic, methadone, for back pain.  Based upon that narcotic prescription, the in-house physician found that Mr. Pollard represented a “direct threat” to himself or others working with heavy machinery in the mine.  Mr. Pollard then used the terms of a collective-bargaining agreement to obtain review by an independent physician.  That second physician examined Mr. Pollard and also concluded that he represented a “direct threat” to himself or others.

Despite opinions from those two physicians, Judge Madeline Hughes Haikala found issues requiring a jury trial on whether Drummond Coal Company committed disability discrimination.   The “direct threat” defense must be based upon “an expressly individualized assessment of the individual’s present ability to safely perform the essential functions of the job.”  Judge Haikala’s opinion hinged on two crucial legal findings.  First, “[a]n employer may not rely upon the recommendation of a physician who, like [the company doctor], conducts a cursory examination and bases his opinion at least in part on a general assumption that all patients with the same disability have the same limitations.”  Pollard, 2015 WL 5306084 at *7.  Additionally, “an assessment based on the known possible side effects of medication, as opposed to an individualized inquiry into a patient’s present ability to perform his functions, is insufficient.”  Id.   Based upon those legal findings, as well as the fact that Mr. Pollard apparently performed his job for three years without any manifestation of side effects, Judge Haikala refused to dismiss the case based upon the “direct threat” defense.

The Pollard opinion is a difficult one for employers who rely upon physicians when making fitness-for-duty determinations.  Practically, Pollard forces employers to interject themselves into determinations made by health care professionals.  Employers cannot simply rely upon a doctor’s opinion regarding an employee’s ability to work.  Instead, Pollard effectively requires employers to second-guess physicians with questions like:  (1) Did you conduct an extensive examination of this patient?; (2) Did you base your opinion on general assumptions about patients with the same condition?; (3) Did you base your opinion on an individualized inquiry into this patient’s present ability to perform the functions of his job?  Moreover, what happens if an employer asks the physician those kinds of questions, and the physician misrepresents the extent of his examination?

Unquestionably, Pollard requires employers to proceed cautiously when making employment decisions based upon a physician’s opinion.

 

 

Judge Acker Continues To Limit Wrongful Termination Claims

Robert C. Lockwood
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Wrongful Termination
Wrongful Termination Claims

In two previous posts, I wrote that United States District Court Judge William Acker provided employers with a weapon against employees making multiple claims of wrongful termination: Judge Acker’s Weapon  , Judge Acker Softens Position.  In ADA, ADEA, and Title VII retaliation cases, employees must prove that the protected characteristic was the “but for” cause of termination.  In other words, the employee must prove that the characteristic was the only reason for termination.  Judge Acker’s earlier rulings prohibited employees from filing complaints that claimed they were terminated because they were disabled, or old, or made claims of discrimination.

On May 26, 2016, the Eleventh Circuit Court of Appeals reversed Judge Acker’s reasoning in Savage v. Secure First Credit Union, No. 15-12704, 2016 WL 2997171 (11th Cir. May 26, 2016). The Court found that Rule 8(d) of the Federal Rules of Civil Procedure expressly permits plaintiffs to plead alternative and inconsistent claims.  So, employees are allowed to file a complaint claiming that they were terminated because they were disabled, or old, or made claims of discrimination.

Undeterred, Judge Acker issued a new opinion last Friday:  Jones v. Allstate Ins. Co., No. 2:14-cv-1640-WMA, 2016 WL 4259753 (N.D. Ala. Aug. 12, 2016).  Judge Acker found that Savage merely prevented him from applying his “but for” analysis at the beginning of a case at the motion to dismiss stage.  Nevertheless, he found that Savage did not control at the summary judgment stage — when depositions and discovery are complete.  As a result, he dismissed wrongful termination claims under the ADA, FMLA retaliation and Title VII retaliation.  Effectively, he found that each of those claims cancelled the others out.

Almost certainly, the employee in Jones will appeal, and it will be interesting to see how the Eleventh Circuit addresses Judge Acker’s analysis.  For now, however, Judge Acker’s analysis effectively forces employees to limit the number of discrimination claims that they pursue.

 

EEOC Issues Final Rule on ADA and Wellness Programs

Robert C. Lockwood
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Orange

Yesterday, the United States Equal Employment Opportunity Commission issued its final rule discussing the interaction of employee wellness programs, the Americans with Disabilities Act (“ADA”) and the Genetic Information Nondiscrimination Act (“GINA”). The EEOC’s press release can be found here:  EEOC Press Release on Wellness Programs

Wellness programs provide a compliance dilemma for employers.  Generally, those programs are a good thing, because they encourage better health and lifestyle choices for employees.  Nevertheless, the ADA and GINA both generally prohibit employers from obtaining and using information about employees’ health conditions. Both acts contain exceptions that allow employers to ask health-related questions as part of a voluntary wellness program.

But, if an employer offers a financial incentive to employees to join a wellness program, is the program “voluntary”?  The EEOC’s final rule permits employers to ask health-related questions and also offer employees incentives of up to 30 percent of the total cost of self-only coverage.  The rule also implements notice requirements to employees and limitations on the amount of information sharing between the programs and employers.

The new rule goes into effect in 2017.  If you sponsor an employee wellness program, carefully review the new rule to ensure compliance.

11th Circuit Holds That ADA Does Not Require Employers to Create Light Duty Position

Robert C. Lockwood
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disability

On April 7, 2016, the Eleventh Circuit Court of Appeals confirmed that an employer is not required to create a permanent light-duty position for an employee as part of the Americans With Disabilities Act’s “reasonable accommodation” requirement.  See Frazier-White v. Gee, No. 15-12119, 2016 WL 1376448 (11th Cir. Apr. 7, 2016).

In Frazier-White, the Hillsborough County Sheriff’s Office implemented a policy that limited light-duty work to 270 days within a two-year period.  The employee was terminated after a due process hearing during which it was demonstrated that she was on light duty for 299 days with no definite expectation of returning to full-duty.  As part of the termination proceedings, the employee asked for “an extension to continue to receive care” so that she could “get better and return to full duty 100%.”  The Eleventh Circuit found that a request for an indefinite extension of light-duty work is unreasonable as a matter of law.  The Court further found that the Sheriff’s Office was not required to create a permanent light-duty position.

The issue of light-duty positions for injured employees is a complex one, which I previously discussed here:  AM I REQUIRED TO CREATE A LIGHT DUTY POSITION FOR AN EMPLOYEE INJURED ON THE JOB?

While Frazier-White provides assistance to employers faced with light-duty issues, you should proceed carefully and consult with your attorney before taking any action relating to employees on light-duty.

Judge Acker Slightly Softens His Stance on “But For” Causation

Robert C. Lockwood
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Leave of Absence

About a month ago, I discussed a string of decisions issued by Senior United States District Court Judge William Acker.  Judge Acker has taken the position that “but for” causation prohibits an employee from making alternative claims of retaliation under Title VII, or the ADA or the ADEA. In short, Judge Acker is making employees limit their retaliation claims to only one statute. Here is a link to my previous comment:Judge Acker Comment.

In a recent decision, Judge Acker slightly softened his stance on “but for” causation. See Kirkland v. Southern Company Svcs, No. 2:15-cv-1500-WMA (N.D. Ala. March 8, 2016). In Kirkland, Judge Acker dismissed an ADA retaliation claim based upon “but for” causation. Nevertheless, Judge Acker declined to dismiss an FMLA retaliation claim. Rather than issuing a definitive decision, Judge Acker found that the issue of “but for” causation in FMLA retaliation claims “is still a toss-up in the Eleventh Circuit.” Judge Acker made clear that he thinks “but for” causation should apply to FMLA retaliation claims, but he would refrain from dismissing such claims until the issue is definitively resolved by the Eleventh Circuit.