ADA Archives - Page 3 of 3 - Employing Alabama

Job-Competition Policy Can Be a Defense to ADA

December 9, 2016Robert C. Lockwood

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.”

October 31, 2016Robert C. Lockwood

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

August 29, 2016Robert C. Lockwood

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

August 16, 2016August 16, 2016Robert C. Lockwood

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

May 17, 2016Robert C. Lockwood

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

April 11, 2016Robert C. Lockwood

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.

AM I REQUIRED TO CREATE A LIGHT DUTY POSITION FOR AN EMPLOYEE INJURED ON THE JOB?

March 7, 2016Robert C. Lockwood

I frequently receive telephone calls from clients asking if they are required to create a light duty position for an employee who is injured on the job. The well-reasoned response to that question is: “It depends on your definition of ‘create.'”

While the question seems simple, this is an extremely complex area of the law that involves the intersection of the Alabama Workers’ Compensation Act, the Americans with Disabilities Act and the Family and Medical Leave Act. Alabama law is clear: the Alabama Workers’ Compensation Act does not require an employer to create a light-duty position for an employee injured on-the-job. Bleier v. Wellington Sears Co., 757 So.2d 1163, 1172 (Ala. 2000).

But, Alabama law is not the final authority for injured employees, because the Americans with Disabilities Act potentially applies. If an employee is a “qualified individual with a disability” (a topic which could occupy several pages of discussion) an employer may be required to supply the employee with a reasonable accommodation. Here’s where the confusion can occur. An employer is not required to create a light duty position. Nevertheless, if a light duty position is available, the employer may be required to transfer the employee to that position as a reasonable accommodation. Moreover, if the employer has previously created positions for injured employees, there may be a requirement to create a position again.

In addition to the ADA, the Family and Medical Leave Act adds to the complexity of this question. While the FMLA does not impose any accommodation requirements on employers, it does provide protection for employees suffering from a “serious health condition.” Employees on FMLA leave are entitled to reinstatement after exhaustion of their leave. The Eleventh Circuit Court of Appeals (which reviews FMLA cases in Alabama) has imposed a heavy burden on employers who fail to return employees to work. Even if you don’t have to create a light duty position for the employee, you may have an obligation to allow the employee to try to return to work, or give them additional time to return.

Every case is different. When making employment decisions about injured employees, talk to your attorney before taking final action.

EEOC Releases Guidance Expanding Scope of Retaliation.

February 12, 2016Robert C. Lockwood

On January 21, 2016, the EEOC issued a draft guidance expanding its interpretation of the law regarding retaliation claims. The EEOC claims that it needs to revise its guidance because of several Supreme Court decisions which were released after publication of its last retaliation guidance in 1998. While the EEOC’s enforcement guidance is supposed to be used only by EEOC investigative staff, courts and attorneys frequently cite the guidance as a source of authority. Unsurprisingly, the EEOC’s interpretation of the law is fairly liberal and employee-friendly. The EEOC’s draft guidance can be found here: EEOC Retaliation Guidance

One key example of the EEOC’s expansive interpretation is the burden placed on an employee to demonstrate that an employer’s stated reason for termination is pretextual — or unworthy of belief. Traditionally, the Eleventh Circuit (which reviews most retaliation claims originating in Alabama) requires an employee to address the employer’s reason for termination “head on.” If any employer says it terminated an employee for tardiness, the employee needs to show that he wasn’t tardy or that other employees were tardy and not fired. In contrast, the EEOC’s guidance indicates that it won’t require a “head on” analysis. Instead, the EEOC will allow an employee to demonstrate a “convincing mosaic” of other evidence to allow an “inference” of discriminatory intent.

The EEOC will accept public comments on its draft guidance until February 24, 2016. Comments can be made at www.regulations.gov in letter, email, or memoranda format. Alternatively, hard copies may be mailed to Public Input, EEOC, Executive Officer, 131 M Street, N.E., Washington, D.C. 20507.

JUDGE ACKER PROVIDES EMPLOYERS WITH A WEAPON AGAINST DISCRIMINATION CLAIMS

February 10, 2016Robert C. Lockwood

Senior United States District Court Judge William Acker is providing Alabama employers with a highly-effective weapon against employment discrimination complaints. In many cases, a terminated employee will be a member of multiple protected classes, for example race, age and disability. When they are terminated from employment, those employees may suspect that one or more of their protected traits were the reason for termination. As a result of that uncertainty, employers are often sued under multiple federal statutes: Title VII of the Civil Rights Act of 1964; the Age Discrimination in Employment Act; and, the Americans with Disabilities Act.

Judge Acker is putting an end to that practice. In a string of cases starting with Savage v. Secure First Credit Union, No. 2:14–cv–2468–WMA, –––F.Supp.3d ––––, 2015 WL 2169135 (N.D. Ala. May 8, 2015), Judge Acker is making employees choose exactly which employment law they are claiming has been violated. Judge Acker’s reasoning is based upon the fact that an employee in ADA, ADEA, and Title VII retaliation cases 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.

As a result, Judge Acker finds that it is impossible for an employee to file a complaint claiming that he was fired in violation of the ADA or the ADEA or Title VII retaliation. Instead, he is making employees commit to one discrimination claim. If they refuse, he is dismissing their case in its entirety.

Notably, a Title VII claim for race, gender or religious discrimination does not require a “but for” causation analysis. Under Title VII, an employee can recover if his employer had “mixed motives” for termination. As a result, if race, gender or religion was merely part of the reason for termination, it is possible for an employee to win. I discussed this possibility in reviewing the case of a transgender auto mechanic who was terminated after sleeping in a customer’s car: LGBT Issues In the Workplace

Judge Acker’s decision in the Savage case is currently on appeal before the Eleventh Circuit Court of Appeals. Thus, it is possible that the Eleventh Circuit could find that he is wrong, and employees can be permitted to assert multiple claims, even under “but for” statutes.

HAVE YOU REVIEWED YOUR EMPLOYMENT APPLICATIONS FOR ADA COMPLIANCE?

February 8, 2016Robert C. Lockwood

Many employers either forget or are unaware that the Americans with Disabilities Act restricts disability-related questions on employment applications. In particular, the ADA prohibits discrimination “in regard to job application procedures.” As a result, employers cannot ask disability-related questions or require medical examinations until after an applicant has been given a conditional job offer.

The EEOC has provided enforcement guidance on this issue:

At the pre-offer stage, an employer cannot ask questions that are likely to elicit information about a disability. Of course, this includes directly asking whether an applicant has a particular disability. It also means that an employer cannot ask questions that are closely related to disability.

Certainly, an employer may not ask a broad question about impairments that is likely to elicit information about disability, such as, “What impairments do you have?”

Many employers also want to know about an employee’s history of drug use. This can be a thorny issue because the ADA provides protection for past drug addiction. Current use and addiction are not protected, but past addiction is. The EEOC makes this issue clear as mud with its guidance:

May an employer ask applicants about their prior illegal drug use?

That depends on whether the particular question is likely to elicit information about a disability. It is important to remember that past illegal drug addiction is a covered disability under the ADA (as long as the person is not a current illegal drug user), but past casual use is not a covered disability. Therefore, whether the question is likely to elicit information about a disability depends on whether it goes to past drug addiction.

It is safe to say that you can ask an applicant if they are currently using any illegal drugs. You can also ask the general question of whether they have ever used illegal drugs. But, if you ask for more detail beyond those general questions (like “Tell us the extent of your past drug use and whether you received treatment”) you may be close to violating the ADA.

It may be worthwhile to take a few minutes to see if your employment application asks questions that are in compliance with the ADA.