Here, in Decatur, Georgia, and for that matter in the Atlanta metropolitan area generally, kids start school very early and end very early. In Decatur’s case, they start school the first Monday in August and end right before Memorial Day. So, next week my daughter starts summer vacation. She is in for a pretty busy summer, lots of fun camps and her bat mitzvah. So, I thought I would get ahead of next week, which she has off, and get a blog entry up to cover next week.
Today’s blog entry talks about how much notice from an employee is necessary for triggering the interactive process. I have previously talked about it in some way in this blog entry. As mentioned in that blog entry, preventive law is an excellent way to go about it because getting a handle on the specific notice required is very difficult to do. As usual, the blog entry is divided into categories: Valdivia v. Township High School District 214; Ruggiero v. Mount Nittany Medical Center; and takeaways. The reader is free to focus on any or all of the sections.
Valdivia v. Township High School District 214
In this case, the plaintiff was subject to a severe pattern of harassment that resulted in her behavior changing and she was forced to resign. She brought suit under title VII as well as the FMLA claiming that her employer should have known she was dealing with a serious health condition because of her behavior changes, and therefore, the defendant interfered with her FMLA rights by failing to provide her with the notice that she had a right to take job protected leave under the FMLA. In agreeing with the plaintiff, Magistrate Judge Sidney Schenkier of the Northern District of Illinois, Eastern Division, held the following:
- Where an employee is unaware she suffers from a serious medical condition or is unable to communicate her illness to her employer, the notice requirement may be met indirectly. So, clear abnormalities in the employee’s behavior can constitute constructive notice of a serious health condition.
- Observable changes in an employee’s condition or uncharacteristic or unusual conduct at work may provide an employer with adequate notice of a serious medical condition and eliminate the need for an express request for medical leave.
- Plaintiff alleged that in July 2016, one month after transferring due to harassment at another school, she became extremely distraught and began crying regularly and uncontrollably at work. She cried uncontrollably multiple times to her supervisor who had known her since 2012. She also told her supervisor that she was overwhelmed, afraid, not sleeping or eating, and unsure if she could continue to work. Further, she also cried uncontrollably to two other employees at the high school telling them she was unsure whether she could continue to work for the defendant. The response of her supervisor was to tell her to decide whether or not to resign. After she resigned, she was hospitalized for four days and diagnosed with depression, anxiety disorder, panic disorder, and insomnia. Accordingly, plaintiff plausibly alleged the defendant was on notice that she may have been suffering from a serious health condition at the time she was asked to decide whether to resign, particularly since the supervisor had known the plaintiff for several years and would/should have realized that her behavior was a dramatic departure from her normal behavior. Regardless of the prior relationship, the behavior of the plaintiff was unusual for any employee.
- Relying on a Seventh Circuit case involving depression, The fact that plaintiff did not know of her medical condition at the time of her resignation is not fatal to her FMLA claim. A plaintiff can be excused from giving direct notice where her medical condition prevents her from communicating the nature of her illness.
Ruggiero v. Mount Nittany Medical Center
In this case, the plaintiff suffered from both anxiety and eosinophilic esophagitis. On April 22, 2015, the defendant sent a memo to all clinical employees stating that it was instituting a new requirement that all clinical employees had to obtain a tetanus, diphtheria, and pertussis vaccine. When plaintiff tried to remove herself from that requirement through doctors notes and communication with her employer, the employer responded by asking her whether her condition was such that she had one of the conditions making the vaccine medically contraindicated. When that information was not forthcoming, plaintiff was terminated. In granting the defendant’s motion to dismiss for failure to state a claim, Judge Brann of the Middle District of Pennsylvania reasoned as follows:
- Just because a plaintiff conveys a healthcare professional’s initial findings of a medical impairment, that does not support an inference that the defendant was aware of a disability.
- Simply informing the employer of a particular condition, is not the same thing as providing to the employer knowledge that the employee is substantially limited in some major life activity.
- Vague and conclusory statements revealing an unspecified incapacity are not sufficient to put an employer on notice of its obligations under the ADA.
- It is up to the employee to show that the employer knew of the employee’s substantial physical or mental limitations resulting from the diagnosed impairments.
- For purposes of proving ADA discrimination, a distinction must be made between the employer’s knowledge of an employee’s disability versus an employer’s knowledge of any limitations experienced by the employee as a result of that disability. This distinction is critical because the ADA requires employers to reasonably accommodate limitations, not disabilities.
- The determination of whether an individual has a disability is not necessarily based upon the name or diagnosis of the impairment the person has, but rather on the effect that impairment has on the life of the individual.
- The hospital had good reasons, based upon a large body of medical evidence, for requiring the vaccination of all healthcare personnel.
After deciding that the employer did not have the requisite notice, Judge Brann went on to talk about how the employer still wins even if he were to make the assumption that the employer was on notice as to both her disability and the need for accommodations because the employer acted in good faith in attempting to accommodate plaintiff despite a lack of knowledge of her mental and physical limitations. In reaching that conclusion, he reasoned as follows:
- Although the ADA does not explicitly refer to an interactive process, the Third Circuit has endorsed that concept as a means of furthering the ADA’s purposes because the interactive process allows the employee to consider accommodations he or she may not otherwise be aware of while simultaneously allowing the employer to better understand the potential range of jobs the employee can do.
- Making out a prima facie case for a breakdown in the interactive process under the ADA involves showing: 1) the employer knew about the employee’s disability; 2) the employee requested accommodations or assistance for his or her disability; 3) the employer did not make a good faith effort to assist the employee in seeking accommodation; and 4) the employee could have been reasonably accommodated but for the employer’s lack of good faith.
- In a footnote, the court noted that a claim brought under failure to accommodate does not require any evidence or inference of intentional discrimination. Therefore, McDonnell-Douglas (see this blog entry), is not used to evaluate failure to accommodate claims.
- All that is required when it comes to the interactive process is that the employers make a good-faith effort to seek accommodations.
- The facts show that the employer was willing to exempt the plaintiff from the vaccination requirement if she had provided evidence her alleged disability precluded her from obtaining the vaccine due to the medical contraindications indicated by the manufacturer. Had she furnished such evidence, the employer would have made an exception to the vaccination requirement.
- The law does not mandate an employer or labor organization accommodate what amounts to a purely personal preference.
- In a footnote, the court noted that the letter from the plaintiff’s doctor explained the plaintiff was worried about the side effects of the vaccine. That letter did not say that either her anxiety or her eosinophilic esophagitis were the medically-based reasons she could not take the vaccine. So, the court said plaintiff failed to appreciate the nature of the restriction required to qualify as a person with a disability under the ADA. After all, most people in the general population would agree that they feel the same discomfort as plaintiff when it comes to vaccines.
- The interactive process does not demand that any particular accommodation be made by the employer.
- The ADA was not intended to provide a way for a court to establish conditions of a person’s employment.
- Congress intended that persons with disabilities have the same opportunities available to them as are available to persons without disabilities.
- If it turns out that there is no existing job that the employee can perform with or without reasonable accommodations, then under the ADA, the company cannot be held liable.
- Courts for years have struggled with just what is necessary for an employee to do in order to give the employer notice of his or her disability and trigger the interactive process. The decisions are difficult to get a handle on and are a bit all over the place.
- Preventive law is critical. An employer is better off erring on the side that they have been put on notice rather than waiting for something more explicit. After all, magic words, as we have discussed here and here, are not necessary to trigger the interactive process.
- Valdivia has not been the rule for courts when dealing with whether a person with a disability has presented sufficient information to trigger the interactive process. I also don’t think Valdivia will be persuasive when it comes to future ADA cases because it goes against the weight of previous ADA authority and because Valdivia involves the FMLA and not the ADA. Also, despite the reasoning of the court, plenty of facts exist so that an employer could reasonably be said to have been aware of a serious health condition/disability.
- Interactive process cases break down into different ways. There are Circuits where the interactive process is a separate cause of action, but there are also Circuits where the interactive process is not a separate cause of action. If you are faced with such a case, be sure to check the approach your Circuit uses.
- Where a job contains a prerequisite, such as a vaccination requirement, it is always helpful on the employer side if you have bona fide reasons backing up the need for that requirement.
- Judge Brann raised a really important point when he said that the ADA requires employees to reasonably accommodate limitations and not disabilities. I must confess I hadn’t thought of it that way before, but it makes a great deal of sense. After all, the definition of a disability is a physical or mental impairment that substantially limits one or more of life’s major activities, and both parts have to be true for a disability to exist under the ADA.
- When it comes to interactive process cases, remember it is the party that breaks down the interactive process that bears the consequences.
- Personal preferences are not obligations imposed by the ADA.
- While the amendment to the ADA have made it much easier to be considered a person with a disability, even those amendments go beyond the realm of simple discomfort/simple anxiety associated with various activities.
- An employer must be on notice for both the disability and the substantial limitation on a major life activity before the obligation to start the interactive process is triggered.