Just What Is a Sales Establishment Anyway per Title III of the ADA?

In a recent blog entry, I discussed a 10th Circuit opinion that talked about just what is a service establishment. This blog entry talks about a similar issue, which is just what is a sales establishment? The case of the day essentially adopts the dissenting view of Judge Holmes in Levorsen, the case referenced above. As such, it makes you wonder whether there is not a split in the Circuits with respect to just what does it mean for a place of public accommodation to exist. I realize the issues are not exactly the same, since one involves sales establishments and the other involves service establishments. However, the applicable analysis is identical but with completely different outcomes. Therefore, one has to wonder whether the defendant in Levorsen have now increased its chances for an en banc rehearing and/or appeal to the U.S. Supreme Court.

Today’s case is Magee v. Coca-Cola Refreshments USA, Inc., a published Fifth Circuit decision. As is usual, my blog is divided into categories: facts; court’s reasoning; and takeaways. The reader is free to focus on any or all of the categories.

I

Facts

Coca-Cola’s glass-front vending machines are self-service, fully automated machines dispensing bottles and cans of Coca-Cola sodas, as well as juices, energy drinks, and waters. They have been around since 2000 and are equipped with many different features including: the ability to accept payment from smart phones and other near field communication devices; wireless Internet capabilities; credit and debit card processing; motion sensing technology; and onboard computer systems. Even so, the vending machines lack any meaningful accommodation for use by the blind. In particular, the machines use an alphanumeric keypad. Such a keypad does not contain a tactile indicator differentiating between letters and numbers, but yet the users have to identify and input selecting codes of the beverage they wish to purchase. Of course, a blind user (the plaintiff suffers from macular degeneration and is considered legally blind), can’t do that since the selecting codes are printed in place below each beverage inside the machine and are visible to the machine’s glass front. It is also possible that the vending machines could be made accessible to the blind by doing any of several different things including: retrofitting the machine with an audio interface system and a tactile alphanumeric keypad; developing a smart phone application capable of displaying a non-visual representation of the contents and corresponding prices for the vending machine; or imprinting a nonvisually displayed toll-free hotline that the visually impaired person to call for assistance in purchasing a beverage. The plaintiff encountered the vending machines at East Jefferson General Hospital in Metairie, Louisiana, and at a bus station in New Orleans, Louisiana. He has regularly used both of those places and reasonably expects to use those places in the future. The plaintiff’s filed suit against Coca-Cola Refreshments alleging that they were violating title III of the ADA by not having a sales establishment accessible to him. He did not sue the bus station or the hospital.

II

Court’s Reasoning

In rejecting plaintiff’s claim that a sales establishment was present, the court reasoned as follows:

  1. 42 U.S.C. § 12181(7)(E) states that a place of public accommodation includes, “a bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment.”
  2. Two principles are critical for assessing whether the vending machine is a sales establishment. The first is noscitur a sociis, which means a word is known by the company it keeps. Second, ejusdem generis, which means when a general word or phrase follows a list of the specific, the general word or phrase will be interpreted to include only items of the same class as those listed.
  3. The relevant portion of the statute uses the term “sales establishment,” following a list of retailers occupying physical stores.
  4. The Third, Sixth, and Ninth Circuits have recognized that every term listed in 42 U.S.C. § 12181(7) is a physical place open to public access. That is, they are actual, physical places where goods or services are open to the public, and places where the public get those goods or services. The court does note a split among the Circuits on this point as the First, Second, and Seventh Circuits have interpreted the term, “public accommodation” to extend beyond physical places.
  5. Although the term “establishment,” could possibly be read to include a vending machine, a vending machine is not like any of the listed examples in the applicable statute.
  6. A look at various dictionaries reveals that an establishment would not include a vending machine. The dictionaries consistently talk about places of business or residence with furnishings and staff when it comes to establishments.
  7. The United States Supreme Court, in a Fair Labor Standards Act case, has recognized that the term “establishment,” is normally used in business and in government as meaning a distinct physical place of business.
  8. Legislative history also backs up the use of noscitur a sociis and ejusdem generis. In particular, a House Report said that although not expressly mentioned, bookstores, video stores, stationery stores, pet stores, computer stores, and other stores offering merchandise for sale or rent are included as retail sales establishments. Another House Report notes that the category including a bakery, grocery store, clothing store, hardware store, shopping center, or other sales or retail establishment is only a representative sample and that other retail or wholesale establishments selling or renting items include such things as: a bookstore; videotape rental store; or pet store, all of which are physical places and actual stores.
  9. The Department of Justice has noted that the category sales or rental establishments includes many facilities other than those specifically listed such as: video stores; carpet showrooms; and athletic equipment stores. Again, all of which are actual stores.
  10. Holding otherwise leads to an absurd result, though the Fifth Circuit didn’t say it quite that way. For example, the Department of Justice has said that a building with five or more sales or retail establishments is a shopping center or mall. Accordingly, if the plaintiff’s theory is correct, that would mean that any building containing five vending machines would qualify as a shopping center or mall, which is clearly not the intent of the various drafters. That Department of Justice guidance also refers to counters and large windows and check out aisles as special features for sales or rental establishments, which are clearly not applicable to vending machines.
  11. All of this is not to say that vending machines are not subject to various requirements under the ADA by virtue of their being located in a hospital or a bus station as both of those places are undoubtedly places of public accommodation per 42 U.S.C. § 12181(7)(F) and 42 U.S.C. § 12181(7)(G).

III

Takeaways:

  1. For the reasons stated by the court, it is curious why the bus station and the hospital were not sued instead of Coca-Cola Refreshments. If the vending machines are still in the hospital and the bus station, it would make sense for the plaintiff to immediately go after the hospital and the bus station.
  2. With respect to the hospital, since they take federal funds, the plaintiff will also have the option, assuming the vending machines are still there, of suing the hospital under § 504 of the Rehabilitation Act. It would also make sense to investigate whether the bus station takes federal funds. If the Rehabilitation Act is applicable, that opens up the possibility of damages, though that would involve meeting a high standard, in addition to attorneys fees and injunctive relief.
  3. One wonders why it was not argued that the vending machines were an establishment serving food or drink per 42 U.S.C. § 12181(7)(B), but even there, you would have to get around the “establishment,” language for the vending machines to come within coverage of that clause. For that, you might argue for adoption of the majority decision in Levorsen, which basically says the key is the adjective and not the noun. That is, an establishment is simply a place carrying out a service or in this case, a sale.
  4. The court also specifically references the split among the Circuits with respect to whether a place of public accommodation extends beyond physical spaces.
  5. As mentioned above, we now have two United States Court of Appeals cases discussing places of public accommodations reaching diametrically opposite conclusions, albeit discussing different categories. One wonders if that doesn’t set up a Circuit court split or at a minimum, as mentioned above, increase the chances of an en banc hearing in Levorsen.
  6. Common sense says to me that this would be a very difficult case to win on appeal, assuming the United States Supreme Court would take the case in the first place, since vending machines are involved and it involves a logical stretch from the statutory language. It is also worth noting that there was no dissent in Magee. That said, as mentioned above, this case does, to my mind, increases the possibility of a rehearing en banc in Levorsen or if that does not happen, an appeal to the United States Supreme Court on a Circuit court split theory.

 

DOJ Final Rules Implementing Title II and Title III of the ADA

Last week, the Department of Justice came down with their final regulations implementing the amendments to the ADA with respect to title II and title III of the Americans with Disabilities Act. I had previously written on these proposed regulations back in February 2014, and so I thought it would be a good idea to update that entry. The blog entry is divided into the categories of DOJ final rule and takeaways. As such, it doesn’t make a lot of sense to read just one of the categories, but I suppose that it is possible.

I

DOJ Final Rule

  1. The DOJ did add the major life activities of reaching, sitting, and interacting with others. It also added writing to its non-exhaustive list of major life activities. It also, to match the title I implementing regulations of the EEOC, added the following examples of major bodily functions: special sense organs and skin; genitourinary; cardiovascular; hemic; lymphatic; and musculoskeletal systems. The DOJ makes it quite clear that the list of major life activities is illustrative and that it is neither necessary nor possible to list every major life activity.
  2. The DOJ also added the immune system and circulatory system to those that may be affected by physical impairment.
  3. The DOJ did add a reference to dyslexia as an example of learning disabilities. The phrase used in the final rule is, “dyslexia and other specific learning disabilities.”
  4. The DOJ did add ADHD as an example of a physical or mental impairment.
  5. The DOJ did stick with the nine proposed rules of construction, which we discussed in the above-mentioned blog entry.
  6. With respect to the regarded as prong, DOJ and its regulations make clear that the burden is on the covered entity to establish that objectively an impairment is both transitory and minor before that exception applies. That is, it doesn’t matter whether the employer believes that the impairment is transitory and minor, rather it is an objective standard. Further, the transitory and minor exception is a defense to a claim of discrimination and not part of a plaintiff’s prima facie case, a position which aligns with the EEOC.
  7. It added a phrase in the final rule noting that not all diagnosed impairments automatically trigger coverage under the ADA since you still have to show a substantial limitation, which may be true, but it isn’t going to happen very often.
  8. As it said it would do in the proposed rule, whether an activity is a major life activity is not to be determined by reference to whether it is of central importance to daily life (the Toyota Motor standard). Instead, the standard to use is whether the impairment substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population with respect to its condition, manner, or duration.
  9. Clarified that the Department of Justice does not endorse reliance on similarly situated individuals to demonstrate substantial limitations. It gives a couple of examples: whether an elderly person is substantially limited in a major life activity should be compared to the general population and not to similarly situated elderly individuals; someone with ADHD should be compared to most people in the general population.
  10. With respect to testing entities, in the final rule, DOJ clarifies that private entities offering covered examinations need to make sure any request for required documentation is reasonable and limited to the need for the requested modification, accommodation, or auxiliary aid or service. Further, when considering requests for modification, accommodation, or auxiliary aids or services, the entity should give considerable weight to documentation of past modification, accommodation, or auxiliary aids or services received in similar testing situations or provided in response to an IEP or a 504 plan.
  11. The ADA’s prohibition on assessing the ameliorative effects of mitigating measures applies only to the determination of whether an individual meets the definition of disability AND NOT to the requirement to provide reasonable modifications or testing accommodations.
  12. The availability of mitigating measures has no bearing on whether the impairment substantially limits a major life activity.
  13. The origin of the impairment, whether it’s effect can be mitigated, and any ameliorative effects of mitigating measures that are employed may not be considered in determining if the impairment is substantially limiting.
  14. Whether an impairment is both transitory and minor is a question of fact that is dependent upon individual circumstances.
  15. With respect to predictable assessments, impairments not requiring extensive analysis, DOJ added traumatic brain injury, to the list put forth in the proposed rule.
  16. Makes clear that epilepsy, muscular dystrophy, and multiple sclerosis each affect neurological/brain function.
  17. Facts gathered to establish a diagnosis of an impairment may simultaneously satisfy the requirement for demonstrating limitations on condition, manner, or duration sufficient to show that the impairment is a disability.
  18. The ultimate outcome of an individual’s efforts should not undermine a claim of disability, even if the individual ultimately is able to achieve the same or similar results as someone without the impairment.
  19. DOJ states it believes Congress made its intention clear that the ADA’s protections are such that the focus should be on how persons with disabilities engage in major life activities rather than the ultimate outcome of those activities. So, for example, the capacity to quantify testing grades does not make them inherently more valuable with respect to proving or disproving disability.
  20. With respect to the rules of construction, ameliorative effects of mitigating measures are not to be considered when determining whether an impairment substantially limits a major life activity. There is a non-exhaustive list of mitigating measures and those mitigating measures also include “learned behavioral or adaptive neurological modifications (includes strategy developed by an individual to lessen the impact of an impairment),” as well as psychotherapy, behavioral therapy, physical therapy, and reasonable modifications (includes both informal or undocumented accommodations and modifications as well as those provided through a formal process), or auxiliary aids and services.
  21. With respect to mitigating measures, if a person is utilizing a mitigating measure not on the list, that does not mean that the mitigating measure should be factored in. That is, you would still have to assess the situation without that mitigating measure, unless it is eyeglasses.
  22. With respect to the record of disability prong, any evidence that an individual has a past history of an impairment substantially limiting a major life activity is all that is necessary to establish coverage under that prong.

II

Takeaways:

  1. What the Department of Justice has done by these regulations is matchup by and large with the EEOC regulations implementing title I of the ADA. That certainly helps for consistency.
  2. School systems when it comes to dyslexia are now going to have a much more difficult time of insisting that dyslexia is not a disability covered by the ADA and 504.
  3. The transitory and minor exception means transitory AND minor, and it is an objective standard. It is also an affirmative defense. Finally, it is the Department of Justice’s view that whether an impairment is transitory and minor is a question of fact. As such, it may now be easier for plaintiff’s to survive summary judgment if the transitory and minor exception is involved.
  4. Toyota Motor’s definition of a major life activity no longer applies.
  5. Whether a person has a disability has nothing to do with similarly situated individuals.
  6. DOJ has put the brakes on excessive documentation request by testing entities and made establishing a disability for accommodations by testing entities much easier. On the other hand, while mitigating measures are out with respect to whether a disability exists, they are not out with respect to figuring out what modifications work; a very important distinction for both testing entities and places of education.
  7. The origin of the impairment has nothing to do with whether a person has a disability or not. While this final rule does not cover employment situations since that is the province of the EEOC and their implementing regulations, this is a big deal because I have seen light-duty policies vary in terms of their benefits depending upon how the disability originated. So, there may be a carryover here to the employment arena.
  8. The lists of major life activities and mitigating measures are not exhaustive.
  9. A person’s success through mitigating measures, whether they be through equipment or strategies the individual has developed, does not undermine a claim of disability. So, one wonders how this case would have turned out if this final rule was in place at the time of the decision, particularly in light of DOJ’s view that mitigating measures cannot be factored into whether the person has a disability but can be factored into the accommodation ultimately reached.
  10. The DOJ believes that it should be fairly easy to establish a record of a disability should there be such a record.
  11. Whether a substantial limitation on a major life activity exists, depends upon the condition, manner, or duration of the disability.
  12. Occasionally, you run across a few cases that talk about the need to show similarly situated people with respect to disability discrimination, it is clear from these regulations that the DOJ is having none of it.

EEOC Guidance on Employer-Provided Leave and the ADA

First off, I want to thank everyone who voted for me for the 2016 ABA blog 100. It has been two years in a row for Understanding the ADA, and I am keeping my fingers crossed for a third. Thanks again everyone!

Turning to the topic of the week, about a week or so ago my Google alerts lit up concerning the EEOC Guidance on Employer-Provided Leave and the ADA, which came down on May 9 of 2016. I am not sure why my Google alerts lit up about a week ago considering the guidance came down in May. Nevertheless, I thought it would be useful to go over the guidance. I have been thinking in my head about how to organize this particular blog entry, and I came up with a system where the odd numbers would be the EEOC view and the even numbers would be my thoughts. So, section I is the EEOC view juxtaposed against my comments. While section II, are the takeaways.

I

The Guidance Itself:

  1. EEOC view: just what is a reasonable accommodation? Citing to an appendix to their regulations, the EEOC says that a reasonable accommodation is generally any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities.
  2. Comments: Don’t have a problem with the formulation. As I have written numerous times in my book over the years, it helps to think of this in terms of getting the person with a disability to the same starting line as those without disabilities.
  3. EEOC view: employer policy requiring employees on extended leave to be 100% healed or able to work without restrictions may deny some employees reasonable accommodations that would enable them to work.
  4. Comments: absolutely as we discussed in this blog entry, which was one of my very first blog entries.
  5. EEOC view: employers often fail to consider reassignment as an option for employees with disabilities who cannot return to their job following leave.
  6. Comments: for sure. See this blog entry for example.
  7. EEOC view: consider this situation: an employer provides four days of paid sick leave each year to all employees and does not set any condition for use. That is, the employer’s sick leave policy does not require any documentation, and requests for sick leave are routinely granted based upon an employee’s statement that he or she needs the leave. If the employer demands documentation for the use of such leave because the employee is dealing with a disability, then the supervisor’s actions violate the ADA because the employee is being subjected to different conditions for use of sick leave than employees without a disability.
  8. Comments: makes sense.
  9. EEOC view: consider this situation: an employer permits employees to use paid annual leave for any purpose and does not require they explain how they intend to use it. If the employer denies an employee’s use of annual leave due to her disability, then you have an ADA problem. In this situation, the supervisor forced an employee with a disability to use sick leave instead of annual leave to deal with a disability even though he had never denied other employees annual leave based upon the reason for using it.
  10. Comments: makes sense.
  11. EEOC view: employers are entitled to have policies requiring all employees to provide a doctor’s note or other documentation to substantiate the need for leave.
  12. Comments: makes perfect sense as all employees are being treated the same.
  13. EEOC view: an employer must consider providing unpaid leave to an employee with a disability as a reasonable accommodation if the employee requires it so long as an undue hardship is not created even where: the employer does not offer leave as an employee benefits; the employee is not eligible for leave under the employer’s policies; or the employee has exhausted the leave the employer provides as a benefit.
  14. Comments: not a problem but the emphasis of the EEOC is that the employer must consider providing unpaid leave. The specific accommodation could be different depending upon the results of the interactive process.
  15. EEOC view: reasonable accommodation does not require an employer to provide paid leave beyond what it provides as part of its paid leave policy.
  16. Comments: absolutely.
  17. EEOC view: consider this situation: an employer provides 10 days of paid annual leave and four days of paid sick leave each year to employees who have worked for the company less than three years. After three years, employees are eligible for 15 days of paid annual leave and eight days of paid sick leave. An employee who has worked for only two years and has used his 10 days of paid annual leave now requests six days of paid sick leave for treatment for his disability. Under its leave program, the employer must provide the employee with four days of paid sick leave but may refuse to provide paid leave for the two additional days of sick leave because the employee has not worked long enough to earn this benefit. However, the employer has to provide two additional days of unpaid sick leave as a reasonable accommodation unless it can show that providing the two additional days would cause undue hardship.
  18. Comments: no problems with much of this section. However, the section saying that the employer must provide the two additional days of unpaid sick leave as a reasonable accommodation absent a showing of undue hardship overstates the case. Again, the specific accommodation should be the result of the interactive process. Sure, it is absolutely conceivable that such a process would mean granting the two days of unpaid leave, and that it would be unlikely to be an undue hardship considering the rest of the employer’s policy. However, that is not the same as saying the granting of this accommodation is mandatory. We simply don’t know what the interactive process would reveal.
  19. EEOC view: consider this situation: an employer’s leave policy does not cover employees until they have worked for six months. An employee who has worked for only three months requires four weeks of leave for treatment of his disability. Although the employee is ineligible for leave under the employer’s leave policy, the employer must provide unpaid leave as a reasonable accommodation unless it can show that providing the unpaid leave would cause an undue hardship.
  20. Comments: completely agree that once a person is an employee, the ADA applies regardless of probationary status or regardless of length of tenure of the employee. Also agree that unpaid leave could be a reasonable accommodation and that anything goes with respect to accommodating a person with a disability unless an undue hardship exists. My issue is the statement that providing unpaid leave is mandatory absent an undue hardship. Again, as mentioned above, we simply don’t know what the interactive process would reveal. It is possible that the unpaid leave is the best situation, but maybe the interactive process would reveal something else. Reassignment perhaps?
  21. EEOC view: consider this situation: an employer’s leave policy explicitly prohibits leave during the first six months of employment. An employee who has worked for only three months needs four weeks of leave for treatment of a disability and the employer tells him that if he takes the leave, he will be fired. Although the employee is ineligible for leave under the employee’s leave program, the employer must provide unpaid leave as a reasonable accommodation absent a showing of undue hardship. If the employer could provide unpaid leave without causing an undue hardship, but fires the individual instead, then the employer violates the ADA.
  22. Comments: don’t have a problem except for the mandatory nature of the unpaid leave. Again, we just don’t know what the interactive process would reveal.
  23. EEOC view: When an employee requests leave, or additional leave, for a medical condition, the employer must treat the request as one for reasonable accommodation under the ADA.
  24. Comments: the EEOC is making this argument in a case, Capps v. Mondelez Global LLC, currently on appeal with the Third Circuit. However, as the lower court noted in the opinion hyperlinked above, it isn’t that simple. One has to remember, that to get FMLA leave, it has to be shown that a person cannot do the job’s essential functions. It does not have to be shown that the person can do the essential functions of the job with or without reasonable accommodations. Therefore, making a request for FMLA leave does not, according to the lower court, mean a request for reasonable accommodation is involved since whether a person can do the essential functions of the job with or without reasonable accommodations is not the question under the FMLA. In essence, it is much the same argument used by employers when a person files for Social Security Disability Income and later claims they have a right to proceed under the ADA, which we discussed in this blog entry. That said, as a preventive matter, it would make sense for the employer to use some common sense when a leave request comes through and start the interactive process to see what would work best for both sides.
  25. EEOC view: when seeking information to help figure out where the interactive process will go, much of the focus will go to the following issues: the specific reasons the employee needs the leave; whether the leave will be for a block of time or intermittent; and when the need for leave will end. Also, depending upon the information the employee provides, the employer should consider whether the leave would cause an undue hardship.
  26. Comments: makes sense. I do find the phrasing, “depending on the information the employee provides…,” a bit funny, as the employer should always be keeping in mind whether an undue hardship exists. Keep in mind, undue hardship can either be logistical or financial (see 29 C.F.R. § 1630.2 (p)(2)), and that a showing of financial undue hardship is a very rare occurrence.
  27. EEOC view: an employer may obtain information from the employee’s health care provider (with the employee’s permission of course), in order to confirm or to elaborate upon information that the employee has provided. Employers may also ask the healthcare provider to respond to questions designed to enable the employer to understand the need for leave, the amount and type of leave required, and whether reasonable accommodations other than (or in addition to), leave may be effective for the employee (perhaps resulting in the need for less leave).
  28. Comments: absolutely. However, it doesn’t make a lot of sense for the employer to do any of this unless the employer is having it all evaluated against the essential functions of the job. So, the employer should make sure that the person assessing the employee is given a copy of the essential functions of the job as the job is actually practiced. Once the employer has that information, don’t forget about the interactive process and utilizing the Job Accommodation Network.
  29. EEOC view: consider this situation: an employee with a disability is granted three months of leave by an employer. Near the end of the three month leave, the employee requests an additional 30 days of leave. In this situation, the employer can request information from the employee or the employee’s health care provider about the need for the 30 additional days and the likelihood that the employee will be able to return to work, with or without reasonable accommodation, if the extension is granted. However, an employer that has granted leave with a fixed return date may not ask the employee to provide periodic updates, although it can reach out to an employee on extended leave to check on the employee’s progress.
  30. Comments: not a problem here.
  31. EEOC view: although employers are allowed to have leave policies establishing the maximum amount of leave an employer will provide or permit, they may have to grant leave beyond this amount as a reasonable accommodation to employees requiring it because of his disability unless the employer can show that doing so will cause an undue hardship.
  32. Comments: very confusing. On the one hand, the EEOC is saying that they may have to grant leave beyond the amount of maximum leave, but on the other hand they are saying that it has to be done unless an undue hardship exists. As mentioned above, the EEOC also uses in this guidance the term, “must.” It simply isn’t clear what is going on here. Again, as mentioned above, the granting of leave per the ADA may very well happen, but it is also possible that the interactive process will come up with a different solution. The key is making sure the interactive process occurs.
  33. EEOC view: consider this situation: an employer covered under the FMLA grants employees a maximum of 12 weeks of leave per year. An employee uses the full 12 weeks of FMLA leave to deal with her disability but still needs five additional weeks of leave. The employer must provide the additional leave as a reasonable accommodation unless the employer can show that doing so will cause an undue hardship. However, the employer may consider whether other reasonable accommodations may enable the employee to return to work sooner than the employee anticipate, as long as those accommodations would be consistent with the employee’s medical needs.
  34. Comments: first, this situation happens all the time. Keep in mind, that in granting additional leave, the courts have held that there must be a fixed time. An unfixed time for additional leave is not a reasonable request for a reasonable accommodation. Second, while the EEOC says that leave must be provided, they then turn around and say that it is possible that reasonable accommodations may allow the employee to return to work sooner. The phrasing is very confusing. Again, the key is the interactive process. Third, the phrasing that “the employer may consider whether other reasonable accommodation may enable the employee to return to work sooner than the employee anticipates so long as those accommodations would be consistent with the employee’s medical needs,” is a bit funny because the critical question is not the employee’s medical needs. The question is whether in the employee’s current physical or mental condition, the employee is capable of performing the essential functions of the job with or without reasonable accommodations.
  35. EEOC view: consider this situation: an employer not covered by the FMLA, and its leave policy specifies that an employee is entitled to only four days of unscheduled leave per year. An employee with a disability informs her employer that her disability may cause periodic unplanned absences and that those absences might exceed four days a year. The employer should consider that request a request for reasonable accommodation and the employer should engage with the employee in an interactive process to determine if her disability requires intermittent absences, the likely frequency of the unplanned absences, and if an undue hardship exists.
  36. Comments: in this situation, the critical piece is that the employee is not eligible for FMLA leave. Accordingly, I give it a makes sense rating. If the employee is eligible for FMLA leave, then see ¶24, discussing Capps.
  37. EEOC view: with respect to form letters to communicate with employees nearing the end of leave provided under the employer’s leave program, such form letters should contain information within them that if the employee needs additional unpaid leave as a reasonable accommodation for his disability, the employee should ask for it as soon as possible in order for the employer to consider whether it can grant an extension without causing an undue hardship. If an employer relies on a third-party provider to handle lengthy leave programs, including short and long-term disability leave programs, it should ensure that any automatic form letters generated by these providers comply with the employer’s obligations under the ADA.
  38. Comments: makes sense.
  39. EEOC view: Employers handling request under the regular leave policy separately from request for leave as a reasonable accommodation should ensure that those responsible communicate with one another in order to avoid mishandling the request for accommodation. The employer should ensure that the contractor is instructed to forward to the human resources department in a timely manner any request for additional leave beyond the maximum period granted under the long-term disability program, and it refrain from terminating the employee until the human resources department has the opportunity to engage in an interactive process.
  40. Comments: makes sense. Also, when it comes to short-term and long-term disability policies, you may be facing the same situation alluded to in Capps and in Cleveland v. Policy Management Systems Corp.
  41. EEOC view: Where an employee requests additional leave exceeding an employer’s maximum leave policy, the employer may engage in an interactive process to assess the situation.
  42. Comments: I don’t understand the use of the term, “may.” Seems to me that failure to engage in the interactive process in that situation, would expose the employer to liability. Even if it wouldn’t somehow, engaging in the interactive process in this situation would be good preventive law.
  43. EEOC view: an employer violates the ADA if it claims an employee with a medical restriction poses a safety risk but cannot show that the individual is a direct threat. If an employee’s disability poses a direct threat, an employer must consider whether reasonable accommodation will eliminate or diminish the direct threat.
  44. Comments: makes sense. On this, you might want to check out Chevron U.S.A. Inc. v. Echazabal.
  45. EEOC view: consider this situation: the clerk has been out on medical leave for 16 weeks for surgery in order to address a disability. The employee’s doctor releases him to return to work but with a 20 pound lifting restriction. The employee refuses to allow the employee to return to work with the lifting restriction even though the employee’s essential and marginal functions do not require lifting 20 pounds. The employer’s action violates the ADA because the employee can perform the job and she does not pose a direct threat.
  46. Comments: my problem is with the use of the term, “ The only issue under the ADA is whether the employee can perform the essential functions of the job with or without reasonable accommodations. When it comes to marginal functions, those functions can be written off by the employer or assigned to someone else. If indeed the marginal functions are something that has to be performed for that person’s job, then wouldn’t it be an essential function in the first place? Finally, keep in mind a function can be essential even if it is performed infrequently.
  47. EEOC view: an employer may not prohibit the employee from returning to work solely because she needs reasonable accommodations. Of course, if the requested accommodation would constitute an undue hardship, that is another matter.
  48. Comments: the word “solely,” is bothersome. See this blog entry for example.
  49. EEOC view: When it comes to the interactive process, issues that need to be explored include: the specific accommodations and employee requires; the reason the accommodation or work restriction is needed; the length of time the employee will need reasonable accommodation; possible alternative accommodation that might effectively meet the employee’s disability -related needs; and whether any of the accommodations result in an undue hardship.
  50. Comments: not a problem here. Keep in mind, that temporary disabilities may be a disability under the ADA as discussed in this blog entry.
  51. EEOC view: where a person with a disability is no longer qualified/otherwise qualified for the position they are in, reassignment to a position that they are qualified for is mandatory.
  52. Comments: this view is certainly consistent with the view of the Seventh Circuit, as we discussed above. Even there, a seniority system may be involved as we discussed in this blog entry from last week. Also, mandatory reassignment is not a view that is universal among all the U.S. Court of Appeals. Look for the United States Supreme Court to ultimately step in.
  53. EEOC view: in determining whether leave results in an undue hardship, consider the following: the amount and/or length of leave required; the frequency of the leave; whether there is any flexibility with respect to the days in which leave is taken; whether the need for intermittent leave on specific dates is predictable or unpredictable; the impact of the employee’s absence on coworkers and on whether specific job duties are what constitute being performed in an appropriate and timely manner; and the impact on the employer’s operations and its ability to serve customers/clients appropriately and in a timely manner, taking into account for example, the size of the employer.
  54. Comments: I don’t see why these factors have to be exclusive. These factors do make sense when considering whether a logistical undue hardship is present. As I have written numerous times over the years, it makes sense to think of logistical undue hardship in terms of fundamental alteration (I once heard an EEOC Commissioner say the same thing).
  55. EEOC view: when considering whether additional leave constitutes an undue hardship, the employer has the right to consider whether that additional leave on top of the leave already granted taken together constitute an undue hardship.
  56. Comments: makes sense.
  57. EEOC view: Leave as a reasonable accommodation includes the right to return the employee to his or her original position.
  58. Comments: this is interesting. FMLA by statute requires such a return, but the ADA does not. If you don’t, is that an adverse action violating the ADA? Keep in mind, a demotion could be a reasonable accommodation as we discussed in last week’s blog entry. Also, an employer wants to keep in mind what obligations it has to reassign the employee to a vacant position the employee is qualified for, which we have also discussed above. Finally, the key is going to be the interactive process, whether it breaks down, and who is responsible for the breakdown of the interactive process.

II

Takeaways:

  1. Never forget about the interactive process and utilizing the Job Accommodation Network. It is possible that granting a leave is not the only option. After all, it is entirely possible that the employee would rather work with or without reasonable accommodation than go on leave.
  2. Make sure you understand just where your jurisdiction is on whether a person who is no longer qualified per the ADA to do their job must be re-assigned that they are qualified/otherwise qualified for.
  3. This is a guidance by the EEOC and so it is anybody’s guess as to how persuasive the courts will take this. See this blog entry for example. Even so, this guidance contains many excellent preventive law ideas.
  4. For people working in this area, Cleveland, mentioned above, and University of Texas Southwestern Medical Center v. Nassar are mandatory reading.
  5. 100% return to work policies are dead, but the readers of this blog already knew thatJ
  6. Don’t forget about the possibility of direct threat, particularly but not exclusively where public safety is involved.
  7. Marginal functions of the job can either be reassigned or written off. It is also possible that the marginal function is really an essential function. Remember, a function that is done every so often could still be an essential function.
  8. Temporary disabilities may be protected under the ADA.
  9. Whether leave as a reasonable accommodation includes the right to return the employee to his or her original position may or may not be the case. However, a thorough use of the interactive process could go a long way towards protecting the employer from liability in that regards.

Don’t forget about FMLA, but do not impose that scheme on the ADA either.