FMLA

Interactive Process and Essential Functions of the Job

February 10, 2020 by William Goren 2 Comments

Today’s case is a twofer. That is, we are going to talk about two different cases, both dealing with the interactive process and essential functions of the job. The first case is an unpublished decision from the 11^th Circuit, Kassa v. Synovus Financial Corporation, decided February 3, 2020. The second case is Seward v. Roy City decided by the United States District Court for the District of Utah on January 22, 2020. As usual, the blog entry is divided into categories and they are: Kassa facts; Kassa court’s reasoning; Seward facts; Seward court’s reasoning; and thoughts/takeaways on both cases. Of course, the reader is free to concentrate on any or all of the categories.

Kassa Facts

Plaintiff began working for the defendant as a lead network support analyst in the network operations center during night and weekend shifts. He has bipolar disorder and also suffers from intermittent explosive disorder. Accordingly, he told his supervisor about his disorders and that he would sometimes get angry or upset. He also told his supervisor that he was able to control his anger if he took his medicine and could take short breaks. The supervisor granted his request to take a short break when he got frustrated so long as his area was covered and he could be reached if necessary. That system worked fine. However, in 2016, defendant restructured and his department was outsourced to a third party vendor. Since plaintiff had quite a bit of technical expertise, the defendant wanted to retain plaintiff’s services and transferred him to the automated teller machine team. That team was responsible for handling customer service calls about issues with automatic teller machines. Once plaintiff learned that his position would involve answering customer service calls from both technical and non-technical personnel, he spoke to his senior director and to a human resources manager about his concern that he might lose his temper while talking to someone on the phone as he had a condition where he couldn’t always control what he said. Accordingly, it was not a good idea to have him answering phones. Plaintiff asked the senior supervisor if he could take customer service calls only from technicians, work nights, work from home, or could take a short break when he was having an episode. None of those requests were granted. Of course, plaintiff did indeed have episodes and in July 2017, his employment was terminated after plaintiff made another rude and unprofessional comment during customer service call. After filing with the EEOC, plaintiff sued the defendant alleging failure to provide a reasonable accommodation and for retaliation.

Kassa Court’s Reasoning

To establish a prima facie case of discrimination under the ADA, plaintiff must show he is: 1) disabled; 2) a qualified individual; and 3) that he was subject to unlawful discrimination because of his disability.
The essential functions of the position are the fundamental job duties of the position an individual with a disability is actually required to perform. The court then proceeds to list out all the EEOC factors and EEOC situations going into deciding whether a job function is essential.
The District Court got it right when it came to deciding that situations answering customer service calls was an essential function of plaintiff’s job on the ATM team. There really wasn’t any dispute on that point from either the plaintiff or the defendant.
An accommodation is reasonable only if it enables the employee to perform the essential functions of the job.
The employee has the burden of identifying accommodations and demonstrating that it is reasonable.
Plaintiff brought forth enough evidence to establish his request to take short breaks was a reasonable one. After all, he did precisely that in the job he was in prior to being transferred. Also, plaintiff’s supervisor for his original job testified that he generally permitted his customer service employee to take breaks when they got frustrated.
Plaintiff testified that when he transferred to the new team the accommodations simply stopped.
An employer’s failure to provide a reasonable accommodation is itself a violation of the ADA.
With respect to accommodation requests of not having to answer all calls, working from home, and working at night, those requests were not reasonable in light of the facts put forward by the defendant.
A retaliation claim cannot duplicate a failure to accommodate claim.
So, the 11^th Circuit vacated the District Court’s summary judgment on plaintiff’s failure to accommodate discrimination claim with respect to his request to take short breaks and remanded for further proceedings. They affirmed summary judgment on the remaining failure to accommodate claims as well as the retaliation claim.

III

Seward Facts (taken directly from opinion)

Seward worked for the Roy City Police Department from April 2001 until May 2015. During his time with the police department, he concurrently served with the United States Air Force Reserve. As a part of his duties with the Air Force Reserve, he was deployed to Afghanistan from February 21, 2014 until October 31, 2014. While in Afghanistan, he sustained an injury to both of his knees.

Upon Seward’s return from Afghanistan, he engaged in full active duty with Roy City until the condition of his knees worsened, mandating knee surgery in March of 2015. Seward took thirty days of unpaid leave to recover, and then was placed on light duty with Roy City. On April 15, 2015, Seward submitted a letter from his surgeon, Dr. Thomas, requesting an extension of light duty for an additional four weeks. Roy City granted the extension of light duty. The letter stated that Dr. Thomas anticipated Seward returning to “Full Duty in 4 weeks as police officer.”

In May, acting Roy City Police Chief Calcut asked Seward for an update as to when Seward could return to full active duty. On May 11, 2015, Seward submitted a second physician’s note recommending three additional months of light duty. The second note also stated there would be a “Follow up with doctor in: 4 wk(s).” After reviewing the letter, Calcut informed Seward that he was “good to go.” Seward understood from this statement that Calcut had approved his request for an extension of his light duty assignment. On May 27, Seward submitted a third doctor’s note stating that he was able to carry a firearm and drive a police vehicle and that he should follow up with his physician “as needed.”

On May 29, 2015, Roy City asked Seward to meet with human resources to fill out Family and Medical Leave Act (FMLA) paperwork. During that meeting, the city told Seward to call Dr. Foot to schedule a physical within the next two weeks. Seward was informed that he must pass a fit-for-duty examination in that time period in order to return to his job as a police officer. He was then sent home on unpaid leave.

Seward believed that he could not pass a physical within the allotted time period and did not call Dr. Foot. Instead, he submitted a retirement letter on June 12, 2015. Seward then sued Roy City, asserting three causes of action: (1) disability discrimination in violation of the ADA, (2) disability discrimination in violation of the Rehab Act, and (3) failure to engage in the interactive process or make a reasonable accommodation in violation of the ADA. Roy City moved for summary judgment on all three claims. Seward stated that he intended to abandon his first two claims but argued that summary judgment was not appropriate for his third claim.

Seward Court’s Reasoning

An available claim under the ADA is the employer failed to engage in an interactive process to accommodate a person’s disability.
Federal regulations implementing title I of the ADA envision an interactive process requiring participation by both parties.
The interactive process begins when an employee provides notice of a request for an accommodation.
One notice is given, both parties have the obligation to proceed in a reasonably interactive manner to determine whether reasonable accommodations can be granted.
A plaintiff bringing a failure to accommodate claim must show: 1) that he or she is a qualified individual with a disability; 2) that the employer was aware of the disability; and 3) that the employer failed to reasonably accommodate the disability.
In a footnote, the court noted that the 10^th Circuit has granted a petition for an en banc rehearing to review whether an adverse employment action is a requisite element for failure to accommodate claims under the ADA. Since that has not been decided yet, the court followed existing precedent, which we discussed here, that an adverse employment action is required.
A temporary reprieve from an essential function, such as a leave of absence or light duty assignment, for treatment of recovery from an injury can be a reasonable accommodation providing certain circumstances are met: 1) the employee provides an estimated date when he or she can resume his or her essential duties; and 2) the request for leave or modified duties must assure the employer than an employee can perform the essential functions of his or her position in the near future.
The letter furnished by the plaintiff from his surgeon recommended that the plaintiff be limited to light duty work for a period of three months. Accordingly, the clear implication of that letter is that the light duty restriction would be lifted at the end of the three month period. So, that letter necessarily provides a projected date for the defendant as to when the plaintiff could resume his essential work duties.
A failure to engage in the interactive process is a failure to make reasonable accommodations.
Interactive process includes good-faith communication between the employer and the employee. A lack of good faith can be demonstrated by the party obstructing or delaying the interactive process or by the party failing to communicate with respect to starting or responding to the interactive process.
While requesting an update on medical information from an employee is reasonable, giving the employee an ultimatum is not. Here, plaintiff produced evidence the defendant gave him an ultimatum where he either had to pass a fitness for duty test within two weeks or be terminated. An all or nothing ultimatums from an employer ending the opportunity for any possibility of reasonable accommodation is not the flexible and informal process mandated by the ADA.
The 10^th Circuit liberally views what an adverse employment action is. In the 10^th Circuit, it is more than just monetary losses. The United States Supreme Court has held that a jury can reasonably conclude that a suspension without pay is an adverse employment action. Here, plaintiff presented evidence that he was placed on unpaid leave and then given the ultimatum. Accordingly, that suffices for an adverse action.

Thoughts/Takeaways on Both Cases

I am still seeing a lot of confusion about the prima facie case for discrimination under title I of the ADA. That is, I still see too many courts talking about the standard of causation being, “because of his disability.” That isn’t the standard. The statute, 42 U.S.C. §12112, specifically says the standard is, “on the basis of.” Further, we have talked about cases, such as here, strongly implying if not holding, that the standard outside of the retaliation context is not because of (whether that be “but for,” or sole cause).
You most certainly can look at all the factors EEOC lays out plus the additional situations they mention to determine what are the essential functions of a particular job. Keeping it simple, look to what is fundamental to carrying out those job duties. Don’t forget that the standard is whether a person can carry out those essential job duties with or without reasonable accommodations.
Not unusual to see cases saying that the employee had the burden of identifying accommodation and demonstrating that the accommodation is reasonable. That becomes a particular issue when it comes to reassignment as a reasonable accommodation, which we have discussed here.
If it ain’t broke, why fix it? I can’t tell you how many times I see a new supervisor with a system already working blow the whole thing up. That is only a recipe for litigation. If an accommodation is working, keep letting it work.
“An employer’s failure to provide a reasonable accommodation is itself a violation of the ADA.” This statement from Kassa raises the question of whether the 11^th Circuit would require an adverse action for failure to accommodate claims. The 10^th Circuit is quite liberal as to what an adverse action is and may even soon get rid of the requirement altogether in failure to accommodate cases.
Failure to accommodate claims are fine, but a retaliation claim has to be distinct from the failure to accommodate claim.
With respect to what the interactive process should look like, this blog entry addresses that question.
Magic words are not required to start the interactive process.
Will definitely be following what the 10^th Circuit does in Exby-Stolley. It will not surprise me at all to see a Circuit Court split develop on this question of whether failure to accommodate claims require an adverse action.
Courts outside of the Seventh Circuit are tending to be flexible with respect to extended leave as a reasonable accommodation. The general trend is extended leave is okay where the employee can provide an estimated date in the near future for his return. In the District Court of Utah, three months was reasonable. Again, jurisdictions are going to vary on how to deal with extended leave beyond the FMLA leave.
An ultimatum can be construed as blowing up the interactive process.
An employer is not required to create light-duty positions if they don’t already have one.
Don’t forget, as we discussed here, that reassignment can be a reasonable accommodation.
The 11^th Circuit said in Kassa the following: “an accommodation is reasonable only if it enables a person with a disability to perform the essential functions of the job.” Note, what the court is not saying. It is not saying that the accommodation must be related to the essential functions of the job. Rather, it is saying that the accommodation must enable a person to perform the essential functions of the job. That language is Exhibit 1 for any plaintiff lawyer saying that a bona fide service dog is always a reasonable accommodation because without it a person will not be enabled to perform the essential functions of the job. So, as a matter of preventive law, allow bona fide service dogs for your employees assuming proper documentation.
Most of the cases I am now seeing are using the term, “disabled.” I still prefer people first language myself.

Lewis v. Union City Yet Again

August 26, 2019 by William Goren 1 Comment

Today’s blog entry is a case that I have blogged on before twice, here and here. On August 15, 2019, the 11^th Circuit came down with its second decision on this case, here. Since I have blogged on it before twice, there isn’t any need to cover the facts except through the court’s reasoning. The prior appeal to the 11^th Circuit just discussed the civil rights aspect of the case and not the ADA. This appeal to the 11^th Circuit discussed the ADA and revisited the civil rights claims. It also looked at municipal liability under §1983, which the court threw out. I don’t see a need to discuss the municipal liability section under §1983. Finally, there was a concurring and dissenting opinion. The concurrence agrees with dismissing the municipal liability claim and would have thrown out the ADA and civil rights claims as well. As usual, the blog entry it divided into categories and they are: court’s reasoning actual disability and regarded as; court’s reasoning qualified individual; court’s reasoning direct threat; court’s reasoning racial and gender discrimination claims; and takeaways. The reader is free to focus on any or all of the categories.

Court’s Reasoning Actual Disability and Regarded As

While plaintiff certainly had a physical or mental impairment with respect to her heart condition, she simply didn’t bring forth enough evidence to permit a conclusion that the physical impairment substantially limited a major life activity. For example, she testified that she had periodic shortness of breath, and her doctor testified that it could limit her ability to sleep. However, no evidence existed as to the severity, frequency, and duration of the episodes with respect to shortness of breath. Further, there wasn’t any evidence discussing the extent of plaintiff’s ability to sleep that could lead a reasonable jury to conclude she was substantially limited in a major life activity.
The ADA allows for a cause of action where the an employer regards an employee as having a disability.
Plenty of evidence existed to raise a genuine issue of fact as to whether plaintiff’s employer regarded her as having a disability. In particular: 1) Assistant Chief Brown in his June 17 letter referred to her chronic conditions and instructed her to complete FMLA paperwork thereby suggesting that he believed plaintiff had a medical condition warranting medical leave; 2) on July 1, Assistant Chief Brown prohibited plaintiff from returning to work until everything was cleared up with her doctor. He also said that her Dr.’s letter essentially made it impossible for her to work or be at work and concluded that she could not return until her doctor released her for duty. That email again referred to the possibility of plaintiff taking leave under FMLA; 3) the department’s own stated reason for putting plaintiff on leave, i.e. a fear for her safety in view of her heart condition, demonstrate the department’s belief that plaintiff’s medical condition set her apart from other police officers.
Looking to an EEOC guidance, an employer engages in prohibited conduct regarding a person as having a disability where it takes adverse action because it fears the consequences of an employee’s medical condition.

Court’s Reasoning Qualified Individual

A qualified individual under title I of the ADA is a person who with or without reasonable accommodation, can perform the essential functions of the employment position that he or she holds or desires.
Essential functions of the job are evaluated on a case-by-case basis after examining a number of factors. Courts do consider the employer’s judgment of whether a particular function is essential and may even cut the employer more slack when the employer is a Police Department. Courts also consider the EEOC seven factors as well.
The employer’s judgment as to what are the essential functions of the job is not by itself conclusive.
The city’s written job description for the position of detective nowhere mentions it is necessary for a detective either to carry or to be exposed to OC spray or a Taser shock. In fact, there is no such mention of any of that in an entire paragraph listing various physical demands of the job.
The work environment section states that a detective has to be willing to carry a firearm on and off the job and be mentally and physically capable of using deadly force if justified. However, it contains no reference to OC spray or Taser.
Plaintiff offered evidence that detectives previously were permitted the choice of what nonlethal weapon or weapons to carry. Further, neither party disputed that Taser International does not require trainee to receive a shock in order to become certified in Taser use.
Plaintiff clearly presented enough evidence to show that a jury would be justified in concluding that receiving a Taser shock or direct exposure to OC spray was not an essential function of her job. As a result, that means plaintiff was a qualified individual.
In a footnote, the court said that ample evidence existed that plaintiff could withstand indirect exposure to OC spray that would allow her to work inside the Police Department building if that option have been made available to her.

III

Court’s Reasoning Direct Threat

Plaintiff produced sufficient evidence that she is not a direct threat.
Direct threat means a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodations. See 29 C.F.R. §1630.2(r).
Direct threat, as we have discussed previously here, has to be based on a reasonable medical judgment relying on the most current medical knowledge and/or the best available objective evidence. It also must be based upon an expressly individualized assessment of the individual’s present ability to safely perform the essential functions of the job after considering, among other things, the imminence of the risk and severity of the harm. For this, the court specifically cited to Chevron USA Inc. v. Echazabal, which we discussed here and in numerous other blog entries as well.
The definition of direct threat requires an analysis of the individual’s ability to perform safely the essential functions of the job.

Court’s Reasoning Racial and Gender Discrimination Claims

Previously, the 11^th Circuit sitting en banc concluded that plaintiff failed to establish a prima facie case of intentional discrimination under McDonnell Douglas because her comparators were not similarly situated in all material respects. Thus, that particular aspect of the ruling is binding on this panel.
Even without similarly situated comparators, plaintiff can still get by summary judgment if he or she presents circumstantial evidence creating a triable issue concerning the employer’s discriminatory intent. After all, not every employee can produce a similarly situated comparator. Further, a proper comparator may not exist in every workplace. Therefore, a plaintiff always gets by summary judgment if he or she can present a convincing mosaic of circumstantial evidence that allows a jury to infer intentional discrimination.
A convincing mosaic can be demonstrated in a variety of ways, including: 1) suspicious timing, ambiguous statements and other bits and pieces from which an inference of discriminatory intent might be drawn; 2) systematically better treatment of similarly situated employees; and 3) the employer’s justification is pretextual.
Plaintiff presented a mosaic of circumstantial evidence raising a genuine issue of material fact as set forth in the paragraphs that follow below.
Union City initiated plaintiff’s indefinite administrative leave on June 17 and informed her on July 1 that she would not be permitted to return to work until she was medically cleared. Yet a week later, and despite plaintiff’s request to return to work and the police chief’s explicit denial of that request, Union City terminated her for being absent without leave.
Union City gave plaintiff no warning that if she exercised the option to use her accrued leave instead of being on non-pay status, she would be terminated upon taking that option.
Union City gave her no notice she had to file FMLA paperwork by any specific date nor did the department’s written FMLA policy provide any such deadline.
At no time was plaintiff told she would be terminated if her doctor failed to contact the department on the very first day the doctor returned from vacation.
There is also plenty of evidence that Union City’s stated reason for firing plaintiff were pretextual as discussed in the following paragraphs.
Plaintiff can show pretext in any of the following ways: 1) casting sufficient doubt on the defendant’s proffered discriminatory reason so as to permit a reasonable factfinder to conclude the employer’s reasons were not what actually motivated its conduct; 2) showing that the employer’s articulated reason is false and that the false reason led to the discrimination; or 3) establishing that the employer failed to clearly articulate and follow its formal policies.
One of the reasons offered by Union City was that her medical condition was permanent. However, evidence exists suggesting the department believed either that plaintiff was faking her medical condition or that her condition was not sufficiently serious to prevent her from working as a detective. In fact, the initial letter placing plaintiff on leave stressed that she had been cleared for full duty without restrictions after a heart attack and emphasized that the letter disclosing her chronic condition came as a surprise.
Plaintiff’s doctor testified that the Assistant Chief made clear to plaintiff’s doctor in a telephone conversation that he thought her letter was more a product of plaintiff’s influence than her unbiased medical judgment. In fact, the Assistant Chief at his deposition testified that he doubted plaintiff’s doctor truthfulness more generally.
Two of Union City’s police chief’s letters could reasonably be construed as indicating that plaintiff’s doctor would ultimately clear plaintiff for duty and that the medical condition, in the department’s view would not permanently prevent plaintiff from doing her job as a detective.
Plenty of evidence exists that the argument that plaintiff did not timely submit her paperwork was just a pretext.
Evidence existed permitting the conclusion that two Caucasian officers in a similar situation to plaintiff were treated differently. However, the white officers were treated more favorably than the plaintiff because they were given extended periods of time to attempt to demonstrate their physical ability they needed, but plaintiff was fired without warning.
A reasonable jury could find that Union City did not consistently exercise its authority in placing physically unfit officers on administrative leave and that Union City did not comply with its own policies.
One Caucasian officer was offered a transfer to a position not requiring him to continue taking the fitness test that he failed while plaintiff was fired without notice after 21 days of administrative leave and was offered no such alternative assignment before termination.
Union City had a history of working with others with a heart condition to allow them to receive a milder version of Taser training with respect to officers with heart conditions but that option was never offered to the plaintiff.
A Union City Lieutenant testified that the department treated women differently than men with regards to the cases assigned to them.
Plaintiff by her termination undoubtedly suffered an adverse action i.e. a change in the terms of her employment.

Takeaways

A regarded as cause of action does not require a substantial limitation on a major life activity. Thanks to the amendments to the ADA, it only requires the employer regard the person as having a physical or mental impairment.
The employer’s judgment as to what the essential functions of the job is not the be-all and end-all of things.
Keep your written job descriptions current.
Antidiscrimination policies for dealing with people with disabilities are always a good idea. Also, make sure those policies are implemented without favoritism and in a consistent manner. Keep in mind, when it come to the ADA, consistently doing an individualized analysis is where you need to go.
I’ve seen many folks get hung up on direct threat because they don’t read Chevron v. Echazabal. Remember, direct threat has to be based on a reasonable medical judgment relying on the most current medical knowledge and or the best available objective evidence. It also needs to be based upon an individualized assessment as well. I have also seen lots of entities make a mistake by not doing the individualized assessment.
This isn’t the first time we have seen convincing mosaic. We saw it here. What is interesting in this case, is that the 11^th Circuit says that convincing mosaic is a fallback were no comparators exist. In the Seventh Circuit, as we discussed previously, convincing mosaic is another way to deal with McDonnell-Douglas regardless of whether the proof is indirect or direct.
Insisting on a full return to work is always a bad idea. We discussed that issue here.
Remember, otherwise qualified/qualified is a question of whether the individual can do the essential functions of the job with or without reasonable accommodations.
Convincing mosaic is a fairly new idea. It will be interesting to follow what happens from here on out. Expect the United States Supreme Court to deal with it eventually.
The 11^th Circuit nicely lays out what is needed to show it convincing mosaic and what is necessary to show pretext.

Medical Licensing Boards, Physician Health Programs, and the Lack of ADA Compliance: an Opportunity for Plaintiff Lawyers

July 13, 2019 by William Goren 7 Comments

Before getting started on the blog of the week, some housekeeping matters. First, my blog was late this week. My daughter came home from camp on Monday, and so my time is different than it usually is. Second, starting tomorrow, my family will be in Chicago visiting both sides of the family. So, no blog entry this coming week.

Today’s blog entry talks about the FSMB (Federation of State Medical Boards), and their policy on physician impairments, here, which are typically applied to medical licensing boards and to PHPs. By way of full disclosure, I have consulted on cases involving healthcare professionals who have had their licensing called into question on the basis of their disability. Those consulting efforts either got the licensing authority to back off or led to more individualized remedies. About two months ago, I was contacted by a couple of physicians, and we have been exploring how the ADA applies to the universe of Physician Health Programs and medical licensing boards. It turns out it is incredibly complicated. Eventually, we decided to focus on the FSMB Policy on Physician Impairments, which is used by PHPs to justify their actions using the imprimatur of the Medical Licensure Boards (MLBs). Physician Health Programs exist in 48 states and are tightly linked to the medical boards that enforce their actions. Their ostensible purpose is to restore impaired physicians to a non-impaired status. Here is the rub. It is quite clear that the FSMB policy was not drafted with the ADA in mind even though it is a 2012 document. So, the ADA would have been around for many many years at the time of this document. Also, the amendments to the ADA would have been around and in effect at the time of this document as well. When I went through the policy, I found 36 different instances of ADA noncompliance and/or provisions that are extremely problematic under the ADA. The physicians I have been working with on this project and myself decided a piece detailing all the 36 issues overwhelms a blog entry. So, we are going to save that for an article we will be publishing in a peer-reviewed journal to be determined. With respect to a blog entry, we decided that talking about the general concerns I had with the policy and then exploring an actual case would work better. Turns out, there is an actual case we can explore. I had a delightful conversation with Susan Haney, M.D., and she wrote about her case here. This article won a 2019 EXCEL award for best editorial/opinion piece in a magazine. So, we will use her article as a springboard after we go over some general concerns. As usual, the blog entry is divided into categories and they are: overarching theme of the FSMB policy on physician impairments; Key definitions; Dr. Haney’s case study; other case studies mentioned in Dr. Haney’s article; and takeaways. Of course, the reader is free to focus on any or all of the categories.

Overarching Theme of the FSMB Policy on Physician Impairment

If there is an overarching theme of the FSMB policy on physician impairment it is this: physicians who are impaired or who have any potential for impairment must be fixed and restored at all costs before they can practice. I have a real problem with this. It goes directly against the underlying principles of the ADA. Whether a person chooses to have their disability fixed or not is entirely up to them. The ADA is all about integrating people with disabilities into the mainstream environment, and NOT “fixing” their disabilities. It accomplishes its goal by forcing various entities to engage in reasonable accommodations/modifications for the person’s disability. As we know, the reasonable accommodation/modification obligations must be done unless there is an undue hardship (title I) or an undue burden or fundamental alteration (title II and title III). So, the ADA is very much about working with the individual as you find them. That is not what is going on with this policy at all. Wait a minute, you might say. Maybe, this is just your disability rights perspective running amok. My response to that is the policy has a nondiscrimination clause in it. However, tellingly, people with disabilities are completely absent from that clause. Taking that and the clear lack of knowledge about what the ADA requires in terms of how the provisions are written, the only conclusion I come up with is that, according to the FSMB, disability is just wrong and needs to be fixed or cured at all costs. Like I said, the ADA doesn’t work that way nor should it.

Key Definitions

It isn’t the reasonable accommodation/modification piece that is the problem with the FSMB policy on physician impairment. Where the policy consistently runs into trouble is the lack of awareness of key ADA definitional terms. In particular, the policy clearly does not take into account that a person has a disability under the ADA if they have a record of a physical or mental impairment that substantially limits one or more major life activity or if they are regarded as having a physical or mental impairment. 42 U.S.C. §12102(1)(B),(C). Also, the policy runs into serious problems with respect to two other definitional issues. First, both title I and title II of the ADA talk about how you have to be qualified as well as a person with a disability in order to be protected by the ADA. The definition of qualified is a bit different from title I and title II. Title I, as we know, focuses on the essential functions of the job and whether the job can be performed with or without reasonable accommodations. Title II, as we also know, focuses on essential eligibility requirements and whether those requirements can be met with or without reasonable modifications. Since medical boards are title II entities, medical boards would have to be concerned about title II, but since much of what is going on here is a fitness for duty, Medical Boards and PHPs also need to know of title I’s qualified definition as well. With respect to the PHPs, the organizations actually doing the work of assessing a physician’s particular situation, the PHPs would have to be aware of title III of the ADA, which as we discussed here, does not but should contain an implicit qualified definition within it. Also, since they are doing the specific work of fitness for duty, they should be aware of qualified under title I of the ADA. Finally, the FSMB policy really breaks down when it ignores the ADA concept of direct threat. As we have discussed many times in this blog, direct threat in both title I and in title II and title III are essentially the same. However, the key difference is that direct threat under title I applies to self and others. On the other hand, direct threat under title II title III only applies to a direct threat to others. The direct threat analysis becomes very complicated in this context because you have title III and title II entities doing fitness for duty exams on behalf of a title II entity with respect to a physician who probably, but not always, works for a title I entity. As I say, going into depth as I have done over the last couple of months, becomes incredibly complicated. Every time we thought we had a handle on it, other items opened up. As I am fond of saying the ADA is a milewide and a mile deep. At any rate, we are going to save the details for an article to be published later.

III

Dr. Haney Case Study

The case study we are exploring today can be found here. Let’s go through the key points of the article. Also, as I mentioned above, I had an hour conversation with her last week, so I may bring additional facts to bear. She has given me permission to share all of this and actually encouraged me to do so. I also shared this blog entry with her prior to posting this online. Also, please note that the facts are taken as true from the article and from what she told me in her conversation. The actual facts in their entirety are surely more complicated.

Haney is a person with recurrent episodes of major depression. Until about 2008, she managed her depression privately without interference or oversight from any medical licensing board. She was never hospitalized because of mental illness and never missed a day of work due to mental illness. At the time of the occurrence, she was working for an employer of 15 or more employees (an entity covered by title I).
While on vacation in March 2006, she had a severe asthma attack requiring an extended course of a high dose of prednisone. Prescribers of prednisone and many patients know that mild dose-dependent mood and cognitive changes happen frequently during the therapy and that more severe psychiatric side effects are occasionally seen at a higher dosage level. In her case, the prednisone caused her to become clinically manic for the first time in her life and she realized that her judgment was becoming impaired. So, she reported her illness to the employer in order to arrange for a brief medical leave of absence (very unclear whether FMLA leave was properly designated at the proper time). She also contacted her primary care physician who had appropriately prescribed the prednisone as well as her personal psychiatrist and reestablished care with the previous psychotherapist. So far so good. Absolutely nothing wrong with what she did so far.
After discussing the matter with a colleague, she asked her employer whether she should preemptively report her illness to the state medical board in order to keep her professional credentials unblemished by rumors about the cause and severity of her symptoms. Big mistake here. She had already requested and was granted a leave of absence by the employer. Accordingly, the employer was on notice that they were dealing with a disability. Also, if the leave was FMLA leave and the employer had a certification policy in place, the employer could have asked Dr. Haney upon expiration of the leave to get certified as to whether she could perform the essential functions of the job at the end of the leave. Even if it was not FMLA leave, the ADA would have kicked in for the employer. If it was not FMLA leave, the employer would have had the right to ask for a fitness for duty exam so to speak to determine whether she could perform the essential functions of her job with or without reasonable accommodations because the employer would probably be able to show that such an exam was job-related and consistent with business necessity (we discussed job-related and consistent with business necessity many times before in our blog, such as here).
The minute she reported the matter to her employer, the employer required her to obtain written permission from the Oregon Board of Medical Examiners (BME) before permitting her to resume work. The employer made a mistake here as the employer immediately regarded her as having a disability. As mentioned above, if the employer was concerned about her ability to do the essential functions of the job with or without reasonable accommodations, it could have insisted on a medical exam to assess that since it probably would be able to show that such an exam was job-related and consistent with business necessity. That exam would be a narrowly focused exam to assess whether the person could do the essential functions of the job with or without reasonable accommodations without being a direct threat (see this blog entry for example). Mandating approval from the Oregon BME is a strong indication that the employer regarded her as having a disability.
She immediately called the BME’s physician health program, hoping to obtain confidential help. She was told that without a chemical component, they were not able to assist her. Instead, they recommended that she discussed this matter directly with the BME’s Medical Director,, a retired general surgeon. He explained to her that the only way she could get written permission authorizing her return to work was to open a formal board investigation into her fitness to practice medicine. Thinking she had nothing to fear, she went all in. As she realizes now, big mistake. While the Medical Board and the PHPs may not realize it, they are subject to title II (medical board and possibly the PHP), and title III (the PHP), of the ADA. Accordingly, any investigation should have been narrowly focused on the concern raised, which is not what happened here, as you will see below. Failure to conduct a focused investigation created ADA regarded as claims.
During the four month investigation, the BME would not permit her to return to work. The investigator successfully discouraged her from seeking legal assistance because of the potential for prolonging the investigation and further delaying her return to work. The BME’s staff would not allow her to appear in person or to testify in her own defense. I am not going to get into the due process claims that may be here, but I will say getting ADA knowledgeable legal counsel involved in this process as early as possible is absolutely critical. Also, getting licensing counsel involved as early as possible in this process is absolutely critical. If such attorneys had gotten involved, they may have been able to work with the investigators to make clear to them that anything beyond a narrowly focused investigation would activate regarded as claims under the ADA. Such advocacy may have gotten the BME and the PHPs to think twice about conducting a far-reaching investigation.
At the conclusion of the investigation, the BME issued a nondisciplinary public corrective action order effectively announcing her mental illness to the general public. The order required that she continue psychiatric care, maintain a physician-patient relationship with the primary care physician, and refrain from the abuse of drugs or alcohol, all of which she had been doing. The order was published in the quarterly newsletter and picked up and published by her local newspaper as well as made available on the BME’s public website despite her objections. She was also required to enroll in a 12 step addiction treatment program despite the fact that she does not have a substance use disorder. I am not a privacy attorney. Accordingly, I can’t go into whether any of those kinds of laws were violated. I do know that privacy laws vary widely from State to State. I can say that what you have here is regarded as claim in all kinds of ways. Also, there seems to be a complete lack of individual analysis as to the remedy needed. For example, being forced to enroll in a 12 step program regardless of whether an individualized analysis would suggest that was a suitable program for her is very problematic. If the ADA requires anything it is an individualized analysis.
Publication of the order was not based upon any actual threat that her illness both to the general public but rather was a standard policy. This is a real problem because direct threat under the ADA, which we have discussed many times in our blog entries, such as here, is a completely different animal and a term of art that the BME and the PHPs seem to be completely unaware of.
When she attempted to assert her right to privacy, autonomy, religious freedom, and appropriate medical mental health care, the BME threatened her with emergency suspension of her license unless she fully complied with the PHP ordered program. Couple of things here. First, no mention of the ADA being pursued and that should have been done. Second, a variety of laws have retaliation provisions in them. Third, two sets of attorneys need to be immediately involved in these things (licensing counsel who understands how the licensing system in that State works and counsel with a comprehensive knowledge of the ADA). The two together, if my experience is any guide, can be quite effective. Each State has so many quirks with their licensing system and the personalities involved and the ADA issues here are so complex, that you really do need two attorneys working together to deal with the issue.
In late 2012, the Ninth Circuit in Haney’s case, held that the State Medical Review Board was entitled to absolute immunity from civil suit for the quasi-judicial and quasi-prosecutorial acts. Pointedly, that decision said that injunctive relief would have been possible but Dr. Haney did not allege any facts showing that injunctive relief was called for. The absolute immunity piece I have not seen before, and my first reaction is that part of the opinion is an outlier. Also, it can be debated whether the acts at issue were quasi-judicial/prosecutorial in nature. I don’t see how a state entity or even a private entity, even if they are acting as a state actor, would have absolute immunity from a federal lawsuit, assuming federal claims were involved. Second, it is important to remember that injunctive relief and attorney fees are a very powerful tool even if it is not damages.
In 2007, she filed an independent complaint with the US Department of Health And Human Services Office of Civil Rights alleging violation of her civil rights under the ADA by the BME. Under pressure from both her civil suit and a Health and Human Services investigation, in mid-2008, the BME voted to allow her to withdraw from the PHP ordered program in good standing. Moral of the story: lawyers can be very helpful at any stage of the process, but the earlier you get them involved, the better.
She ultimately returned to full-time work as an emergency physician with an unrestricted medical license. However, as a consequence of the sanctions and the publication of her private medical history, she has been turned away by literally dozens of potential employers and credentialing bodies because she no longer has a clean record. All kinds of things here. First, there may be claims against the potential employers. The question for the employer is can she do the essential functions of the job with or without reasonable accommodations and is not a direct threat to others. If the employers are not giving her a chance to explain what happened, are the employer then regarding her as having a disability? If the employers have a process of screening out people without a clean record from the BME and the PHPs, are they involved in a policy practice or procedure that screens out persons with disabilities in violation of the ADA? They just might be.
She also informed me that she is under PHP monitoring basically for the rest of her career. One wonders if such monitoring does not create a regarded as claim that might lead to a future injunctive relief filing.

Other Case Studies Mentioned by Dr. Haney in Her Article

For purposes of this section, all facts are taken from Dr. Haney’s article and are taken as true. The actual facts will of course be more complicated.

In 1998, a New York physician was initially denied a California state medical license due to his self-disclosed history of mental illness. After California refused to license him, New York revoked his license there as well. After considerable outcry from disability rights advocacy groups, he was eventually granted a probationary license in California, subsequently unrestricted, where he currently practices. I have seen this before where a person with a record of a disability that is being completely managed is gone after by licensing boards. The focus, such as we discussed here, needs to be on behavior and not on the record of the disability. If you take adverse action based upon the record and not upon the behavior, that is disability discrimination.
In 2004, a Washington physician published her first hand account of working with bipolar. 10 years later, that Physician was sanctioned by her medical board following a retaliatory complaint from a former patient arising from a custody dispute over a dog. I don’t know the facts, but sounds like a potential “record of,” claim to me.
Physicians with any history of mental illness may be automatically assumed by the medical licensing board to have an occupational impairment based simply upon their diagnosis. In fact, one of the provisions in the FSMB policy on physician impairments very much suggests this as a possibility. Automatically assuming a physician is a direct threat to others without conducting a focused individualized analysis relying on the most current medical knowledge and/or the best available objective evidence is disability discrimination.

Takeaways

Clearly, licensing boards and PHPs are in need of knowledgeable ADA counsel reviewing their operations and this particular policy. As I mentioned, expect a paper on this at some point. In the meantime, an opportunity exists for plaintiff attorneys to get fees.
Any physician going into this system needs to get licensing counsel and an attorney with a comprehensive knowledge of the ADA involved immediately. Do not wait. The sooner appropriate attorneys are involved, the more likely through the use of extremely knowledgeable licensing and extremely knowledgeable ADA counsel, the train will be able to be stopped. Also, the more likely resources will be available to pay for the necessary substantive expertise
Louise Andrew MD JD and Ron Chapman JD have put out a nice little publication on do’s and don’ts with respect to this whole PHP system.
This stuff is all really complicated. PHPs are generally 501(c)(3) organizations. However, as a service establishment, they are subject to title III of the ADA per 42 U.S.C. §12181(7)(F). Where an entity covered by title III of the ADA violates the ADA, the plaintiff can get injunctive relief and attorney fees. Damages are not a possibility. With respect to the medical licensing boards, which are state entities, if a showing of deliberate indifference, which we discussed here, can be made, then damages are available. Also, if the title III entity takes federal funds, then damages are in order as well under §504 to Rehabilitation Act.
With respect to damages, that may be a tough fight for a couple of reasons. First, sovereign immunity or other immunities may be in play. As we have discussed many times before, such as here and here, sovereign immunity is an incredibly complicated area because the equal protection class that persons with disability fall into is never fixed. Also, whether a State has waived sovereign immunity will vary from State to State. Second, even though PHPs are title III entities an argument exists under this case that PHPs are state actors. As such, they would be subject to damages under title II of the ADA. Unclear whether a state actor, a PHP, would be able to avail themselves of sovereign immunity. Regardless, sovereign immunity does not protect against prospective injunctive relief claims.
The employers of doctors are not off the hook either. Under title I of the ADA should an employer have reason to believe through behavior an issue is involved with respect to whether that physician can do the essential functions of the job with or without reasonable accommodations, they have the ability to insist on a medical exam if they can show that the medical exam is both job-related and consistent with business necessity. Automatically referring a physician into the PHP system, may wind up running the employer into a regarded as claim. If there is no behavior and the employer refers someone with a record of a disability into the system, that is problematic as well. Finally, were an employer to order a medical exam based on an anonymous tip, they may run themselves into problems, as we discussed here. Of course, medical licensing boards and PHPs are not title I entities, but the principle is instructive with respect to ADA compliance.
The PHP evaluations are comprehensive, but why? Performing a comprehensive evaluation in every case leads to regarded as claims. For that matter, so does the lack of an individual analysis.
Do look for a paper, but since it will be peer-reviewed, it may take some time for that to be published.
The sooner the FSMB and PHPs can understand the ADA and get away from fix a disability at all costs mentality, the less liability they are going to have.
Not all physicians are employees. For those physicians who are not, how does the ADA apply to them as title I of the ADA does not apply because they are not an employee. So, what mechanism exists for ADA protection for such individuals. First, there is this case, which holds a physician independent contractor can have a claim under title III. Second, since medical licensing board and PHPs are covered by title II (MBE), and by title III and possibly title II (PHP), fitness for duty is involved, I would argue title I’s rules with respect to otherwise qualified/qualified must apply.
There may be overlapping regulatory jurisdiction depending upon the entity involved. For instance, you may see Health and Human Services, Department of Justice, or the EEOC all having jurisdiction depending on the situation.
If a lawyer representing a physician headed into or in the PHP process already is not using the ADA in his or her advocacy on behalf of the client, then per this blog entry , that lawyer, in my opinion, is committing legal malpractice.
Did I say legal counsel legal counsel legal counsel with comprehensive knowledge about the ADA is critical. As soon as possible is important as unless a disability rights advocacy group takes on the matter, any representation may be hourly since damages can be very uncertain with sovereign immunity and other immunity defenses. A physician also is more likely to have resources early on in the process. Also, it is possible that your malpractice insurance may or may not offer coverage. On this, the physician may need an insurance coverage attorney to argue over any coverage distinctions based upon disciplinary proceeding v. assessment of an illness. At any rate, exhausting the possibility of malpractice insurance coverage is worth exploring as such coverage could make a huge difference to the physician.