Failing an Employee Assistance Program Can Justify Termination

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EAPs provide employees with an important benefit in fighting substance abuse issues.

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.

 

ADA: Reasonable Accommodations Have Limits

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The ADA only requires reasonable accommodations, not the accommodation of an employee’s choosing.

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.

 

ADA: Disabled Employees Must Meet Productivity Standards

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Disabled employees must meet the same productivity standards as other employees.

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.

ADA: Comprehensive Job Descriptions Are Vital

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Job descriptions are an important piece of evidence in defending ADA claims.

Do you have job descriptions for your employees?  Do your job descriptions list the “essential functions” for each job?  If not, your chances of violating the Americans With Disabilities Act (“ADA”) are greater than they need to be.

To prevail on a claim of disability discrimination, an employee must prove that they were “disabled” and that they were a “qualified” individual with a disability.  A “qualified” individual can perform the essential functions of their job, with or without reasonable accommodation.   Job descriptions are vital because they help a court to determine the essential functions of a job.

Whether a job function is “essential” is determined on a case-by-case basis.  Even so, one of the factors that a court considers is the employer’s judgment of whether a particular function is essential.  And, a comprehensive job description will tell a judge exactly which functions the employer considers to be essential.

But, a job description can be a double-edged sword.  If your job description fails to list a function as “essential,” it will be difficult to convince a court otherwise.  One employer learned that lesson in Lewis v. City of Union City, 877 F.3d 1000 (11th Cir. 2017).  In Lewis, a police department claimed that officer must be trained on, and suffer a shock from, taser guns.  Lewis refused because of a heart condition, and the department terminated her employment.  The department then tried to argue that taking a shock from a taser was an “essential function” of the job, but the job description for police officer made no reference to the taser shock.  The Eleventh Circuit then found that there were genuine issues on whether the taser shock was an essential function of the job.

The lack of reference to taser shock in the job description also defeated the department’s “direct threat” defense.  The department argued that the officer was a direct threat to herself, because her presence near tasers in the workplace posed a significant risk of harm to her health.  The Eleventh Circuit rejected that argument, however, because a “direct threat” can only be determined by examining “essential functions.”  And, again, the taser shock was missing from the “essential functions.”

In short, job descriptions are vital part of any defense to an ADA claim.  As always, proceed carefully if you are going to take any action based upon the health of any employee.

ADA: Extended Leave Is Not a Reasonable Accommodation

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In the Eleventh and Seventh Circuits, an extended leave of absence is not a reasonable accommodation under the ADA.

Last week, the Eleventh Circuit found that an open-ended extension of leave without pay is not a reasonable accommodation under the Americans with Disabilities Act.  See Billups v. Emerald Coast Utilities Auth., No. 17-10391, 2017 WL 4857430 (11th Cir. Oct. 26, 2017).  Roderick Billups suffered an on-the-job injury on December 18, 2013 and he began FMLA leave on December 19, 2013.  The FMLA 12-week period expired on March 12, 2014, while Billups was still out on leave.  He underwent surgery on April 16, 2014 and on May 27, 2014 his physician restricted him to sedentary work.

In early June 2014, Billups’ employer, Emerald Coast, sent him a notice that he would likely be terminated because of his inability to perform the essential functions of his job with or without reasonable accommodation.  At a “hearing” on June 19, 2014, Billups provided some evidence that he might be cleared for duty by July 15, 2014.  Nevertheless, on June 23, 2014, Billups was terminated because of a continuing inability to perform the essential requirements of his job.  Billups continued medical treatment and was cleared to return to work without restrictions on October 23, 2014.

In January, I discussed another case from the Eleventh Circuit (Here) finding that a leave of absence is a reasonable accommodation only if it allows employees to “perform the essential functions of their jobs presently or in the immediate future.”  Because Billups received more than six months of leave before the termination decision, and could not return within the immediate future, the Court found that an extension was not a reasonable accommodation.

The Billups decision comes on the heels of a similar decision by the Seventh Circuit Court of Appeals, Severson v. Heartland Woodcraft, Inc., which is discussed here:  7th Circuit Rejects Leave as Accommodation.    The Severson decision is slightly more noteworthy, because it directly addresses a policy from the EEOC requiring it as a reasonable accommodation:  EEOC on ADA and Leave.  The Court reasoned “[i]f, as the EEOC argues, employees are entitled to extended time off as a reasonable accommodation, the ADA is transformed into a medical-leave statute-in effect, an open-ended extension of the FMLA.”

“I Don’t Hire Overweight People”: Obesity and the ADA

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Courts are divided on whether obesity is a disability under the ADA.

Last week, an article on AL.com caught my attention.  A Vestavia Hills chiropractor admitted that he terminated a receptionist/chiropractic assistant because of her weight.  Here’s a link to the article:  “I Don’t Hire Overweight People.”  I’ve never had a client admit that they terminated an employee based upon their weight and/or obesity.  So, my first question was whether the chiropractor might be liable under the Americans with Disabilities Act (“ADA”).  Is obesity a “disability” under the ADA?

After a little research, I determined that there is no clear answer.  Prior to the ADA Amendments Act in 2008, the EEOC’s interpretive guidance expressly held that obesity would only be considered a disability in “rare circumstances.” But, that guidance was deleted after the ADA amendments.  Courts are divided on the issue after the ADA amendments.  See McCollum v. Livingston, 4:14–CV–3253, 2017  WL 608665 (S.D. Tx. Feb. 3, 2017)(“Courts are split as to whether obesity, on its own, can qualify as a disability under the ADA”).  The highest court to consider the issue lately is the Eighth Circuit Court of Appeals in Morriss v. BNSF Ry. Co, 817 F.3d 1104 (8th Cir. 2016).  The Morriss court held that obesity is not a disability unless the obesity is the result of a “physiological disorder.”

In Alabama, Judge Abdul Kallon in the Northern District of Alabama assumed that obesity could be a disability for purposes of his analysis in White v. Beaulieu Group, No. 5:15-cv-02141-AKK, 2017 WL 2243024 (May 23, 2017).  But, even with that assumption, Judge Kallon found that the employee failed to prove that he suffered discrimination.

The ADA Amendments Act liberalized the ADA’s requirements and made it much easier for employees to sue.  So, as a practical matter, I strongly suggest that all employers refrain from relying upon physical characteristics as a reason for taking an employment action.  In my opinion, it’s simply not worth the risk of a law suit.

On final note.  In this case, the chiropractor could probably not be liable under the ADA, because the receptionist/chiropractic assistant was his only employee — and an employer must have 15 employees to be subject to the ADA.

Employee Can’t Sue for Getting the “Silent Treatment”

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An employee receiving the “silent treatment” is not subjected to actionable discrimination

Your Mom probably told you:  “If you can’t say something nice, say nothing at all.”  In the workplace, this is sometimes great advice.  Rather than unleashing your true feelings on a co-worker, you can elect to ignore him.  Nevertheless, you can’t make everybody happy.  So, one employee who received the “silent treatment” from co-workers attempted to claim that she was being discriminated against.  The Eleventh Circuit Court of Appeals recently rejected that claim in Jones v. Allstate Ins. Co., No. 16-15628, 2017 WL 3887790 (11th Cir. Sep. 6, 2017).

Jamilia Jones’s employment with Allstate Insurance Company was complicated.  She complained that she was sexually harassed by her supervisor, and, after an investigation, Allstate fired that supervisor on May 8, 2012.  She then took disability leave in June and July 2012.   Ms. Jones testified that, upon her return to work, co-workers would not talk to her for fear of losing their jobs.  Those who would talk with her would only do so with a witness present. She resigned her employment on September 10, 2012, and later claimed that she was forced to resign because she was treated so poorly at work.  In other words, she claimed that she was “constructively discharged.”

To succeed on a claim of constructive discharge, an employee must show that her working conditions were so intolerable that a reasonable person in her position would be compelled to resign.  But, the Eleventh Circuit found that the “silent treatment” simply did not amount to intolerable working conditions.   As a result, the Court affirmed dismissal of Ms. Jones’s claim for constructive discharge — once again proving that Mom is always right.

Is Working From Home a Reasonable Accommodation?

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Sometimes, working from home is not a reasonable accommodation under the ADA.

The Eleventh Circuit Court of Appeals recently found that an employer was not required to allow an employee to work from home as a reasonable accommodation for her pregnancy/disability.  Everett v. Grady Memorial Hosp. Corp., No. 16-13495, 2017 WL 3485226 (11th Cir. Aug. 15, 2017).

At the outset, let me stress that the reasonable accommodation analysis under the Americans with Disabilities Act is a case-by-case determination.  The Eleventh Circuit’s ruling in Everett depends on the specific facts of that case.  In other cases, involving other jobs, work-from-home might be a reasonable accommodation.  If one of your employees suffers from an impairment and asks to work from home, proceed very carefully.

In Everett, Ana Everett was employed as the Program Manager for Grady Memorial Hospital’s car seat program.  She was diagnosed with a high-risk pregnancy in February 2015 and granted FMLA intermittent leave at that time.  On April 28, 2015, Ms. Everett presented a doctor’s note placing her on “light duty.”  In May 2015, her doctor diagnosed her with an “incompetent cervix” and said she should work exclusively from home.  Grady refused to allow Ms. Everett to work from home.  Instead, Grady placed her on unpaid leave until her doctor allowed her to return to work on October 8, 2015.

Ms. Everett asserted several claims against Grady — including a claim for failure to accommodate her pregnancy/disability because she was not allowed to work from home.  This is where the fact-intensive nature of the accommodation analysis comes into play.  The issue was whether Ms. Everett could perform the essential functions of her job if she worked from home.  In short, the Eleventh Circuit reviewed the relevant facts and found that teaching courses, supervising employees and meeting with patients were essential functions of the job.  Ms. Everett could not perform those essential functions if she worked from home.

Ms. Everett argued that Grady could assign those job duties to another employee as a reasonable accommodation, but the Eleventh Circuit rejected that argument.  “‘[T]he ADA does not require the employee to eliminate an essential function of the plaintiff’s job’ or place it upon someone else.”  Everett, 2017 WL 3485226 at *5.

Again, the Eleventh Circuit’s decision in Everett relied upon the fact that Ms. Everett’s presence at the work site was crucial to teach courses, supervise employees and meet with patients.  In other cases, particularly in those involving computer-intensive jobs, it might be reasonable to allow an employee with an impairment to work from home.

EEOC Cannot Revive Claim Barred By Statute of Limitations

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The EEOC cannot revive a discrimination claim that is barred by the statute of limitations.

The Eleventh Circuit Court of Appeals recently held that the United States Equal Employment Opportunity Commission (“EEOC”) cannot revive a discrimination claim that is barred by the statute of limitations.  See Stamper v. Duval County School Bd., No. 15-11788, 2017 WL 3033148 (11th  Cir. Jul. 18, 2017).

In 2007, Stamper filed a charge of race and disability discrimination.  On February 26, 2009, the EEOC issued a dismissal and notice of rights (also known as a “right to sue letter”) concluding that it could not establish a violation of the statutes.  Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act both required Stamper to file a law suit (if any) within 90 days of the right to sue letter.  Yet, Stamper did not file suit.

Instead, on July 9, 2011, Stamper filed a request for reconsideration with the EEOC.  On December 15, 2011, the agency sent Stamper a “Notice of Revocation,” which attempted to vacate the dismissal of her first charge and revoked the letter terminating processing of that charge.  Stamper then filed a second charge of discrimination, and she received a second notice of right to sue on November 5, 2012.  Stamper then filed suit within 90 days.  A trial court found that her lawsuit was untimely and the Eleventh Circuit affirmed.

The Court relied upon the agency’s own regulations.  In particular, 29 C.F.R. § 1601.19(b) allows the EEOC to reconsider a decision to dismiss a charge of discrimination.  But, that regulation only affects the 90-day statute of limitations if the EEOC reconsiders within 90 days of its dismissal decision.  In short, if the EEOC reconsiders within 90 days, the right to sue is revoked and the statute of limitations is re-set.  But, if the EEOC reconsiders after 90 days, the right to sue is not revoked and the statute of limitations is not affected.

In this case, the EEOC reconsidered Stamper’s right to sue more than two years after the fact.  As a result, the Eleventh Circuit found that it did not properly revive Stamper’s claims, and affirmed dismissal.

ADA: “Maximum Leave” Policy Costs UPS $1.7 Million

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Inflexible medical leave policies may violate the ADA’s reasonable accommodation requirement.

An article from Bloomberg reports that United Parcel Service recently agreed to pay $1.7 million to settle a claim under the Americans with Disabilities Act:  UPS to Pay $1.7M

The EEOC filed a nationwide lawsuit challenging UPS’s policy of discharging workers who could not return from medical leave after 12 months.  The case was filed in Illinois, so it is not directly applicable to cases filed in Alabama.  Nevertheless, it appears to demonstrate the dangers of inflexible medical leave policies.  While I have not delved into the details of the UPS lawsuit, the Bloomberg article suggests that all employees were terminated after 12 months of medical leave.  Potentially, UPS should have engaged in the reasonable accommodation process and determined if employees could return to work, for example, in 13 months.  Clearly, the EEOC would view an additional month of medical leave as a reasonable accommodation.  Indeed, the EEOC’s resource document on employer-provided leave supports that position:  EEOC:  Employer-Provided Leave

Inflexible leave policies certainly pose dangers for employers under the ADA.  Thus, each request for leave should be dealt with on an individualized basis.   In the Eleventh Circuit, if an employee has exhausted their employer-provided leave, and cannot return in the “present or immediate future,” an indefinite extension of leave is not required under the ADA.  I previously wrote about this issue here:  ADA:  Indefinite Extension of Leave Not Required.  In summary, inflexible policies on return from leave can lead to liability, but employers are not required to provide indefinite leave as a reasonable accommodation.