With or without reasonable accommodations

Interaction Between FMLA and ADA: A Whole Lot Going on

March 20, 2018 by William Goren Leave a Comment

The best weekend in sports is no doubt the first and second round of the NCAA basketball tournament. I hope your bracket survived. The UMBC VA game was amazing (even my 14-year-old daughter was into it), and there were plenty of other upsets along the way as well. I am in two pools (brother and brother-in-law), and Cincinnati’s loss did not help me. However, I do have Villanova and Gonzaga in the final game, and so I am okay that way (I have Gonzaga winning in one pool and Villanova winning in the other). Good luck to everyone with their brackets.

As everyone knows, I am not afraid to blog on cases blogged on by others. Today’s case is a first because I don’t think I have ever blogged on a case mentioned here by Eric Meyer of Fisher Broyles in his Employer Handbook blog, an ABA Hall of Fame blog that can be found in my blogroll. So, today is a first. My thanks to Eric for alerting me to the case. The case, Lindstrom v. Bingham County, Idaho, out of the Idaho District Court decided on March 15, 2018, is a combination of FMLA and ADA . As usual, the blog entry is divided into categories and they are: facts; court’s reasoning in denying summary judgment on the FMLA claim; court’s reasoning in denying summary judgment on the ADA and the equivalent Idaho Human Rights Act claim; and takeaways. Of course, the reader is free to focus on any or all of the categories.

Facts

Plaintiff was employed at the Rattlesnake Landfill located outside of Shelley, Idaho as the landfill manager from July 26, 2004, until March 10, 2015. It was a full-time position, and his duties generally included operating the scale house when customers arrived, operating heavy machinery throughout the landfill, and supervising other employees. On September 16, 2014, plaintiff was taken to the hospital because he was ill. Subsequent visit with doctors revealed multiple health issues including blurry vision and low blood sugar. As a result, one doctor told the plaintiff to refrain from operating heavy equipment for a time, and another doctor suggested taking time off work to address the health concerns.

On September 30, 2014, plaintiff signed a request for FMLA leave. That form noted that plaintiff’s FMLA leave started September 24, 2014 and would last for 12 weeks until December 16, 2014. During that time, plaintiff took medications and was able to improve his vision and level out his blood sugar. However, the condition with his feet, which was caused by diabetes, did not get better or worse.

During November and December 2014, plaintiff kept in contact with the County’s Human Resources Director and discussed various work option for him upon his return. Plaintiff indicated that he wanted to try to do some work at Rattlesnake to see how it went. However, that never took place. Plaintiff’s intent was to work mainly in the scale house, which he had done previously when his feet were causing him pain.

Plaintiff did not have a doctor’s note immediately available upon completion of his FMLA leave and did not show up for work on December 17, 2014. Even so, the County continued his time off as a paid leave of absence. On December 31, 2014, plaintiff received a note from a doctor and provided it to the County on January 2, 2015. The County asked the plaintiff to work with medical providers to determine the details of any work limitations and to fill out a fitness for duty form.

Plaintiff complied with that and furnished two fitness for duty forms. With some variations, both doctors recommended that plaintiff not stand or walk for long periods because of the condition with his feet along with other minor restrictions and suggestions.

As a result of the fitness for duty forms, the County determined that Rattlesnake was not a good fit for the plaintiff and instead offered him a position at the central transfer station located in Blackfoot, Idaho. The County gave him few details about that job, but did say that he would have a stool to sit on. While plaintiff initially agreed to attempt that position, when the day for him arrived to start that job, he left a message with the supervisor indicating that he would not be able to make it for medical reasons. He later indicated that he wasn’t comfortable driving the significantly greater distance to that job as opposed to his usual 3-4 mile commute to Rattlesnake. After meeting with his doctors, the doctors about the plaintiff that driving longer distances and a slower paced job close to home, essentially Rattlesnake, would be best for the plaintiff.

On March 5, 2015, the Board of Bingham County’s Commissioners passed a resolution reducing the hours of operation at Rattlesnake for financial reasons. They then implemented a reduction in force and terminated the plaintiff and another part-time employee. After exhausting administrative remedies, plaintiff brought suit and the County eventually moved for summary judgment.

Court’s Reasoning in Denying Summary Judgment on the FMLA Claim

Under the FMLA, if an employee can’t perform the essential functions of the position because of a physical or mental condition, he is not entitled to restoration of a job upon return. However, he may have rights under the ADA.
What were the essential duties of the job, how those essential duties were defined, and how fieldwork was allocated at Rattlesnake were all facts in hot dispute. Further, the County could not point anything in the record actually showing that plaintiff could not perform the duties as outlined.
In the past, plaintiff had worked internally with his coworkers to switch duties when he was having a difficult time, and the County provided no explanation as to why that type of scenario could not have continued upon his return.
No legal authority exists for the proposition that a person on FMLA leave must return to work at the specific time the FMLA leave ends or risk losing his right to reinstatement. In fact, FMLA regulations say that the timing is not so rigid. In particular, 29 C.F.R. §825.216 provides an employer can delay restoration to an employee who fails to provide a fitness for duty certificate to return to work. Importantly, that provision does not say the employer can fire an employee or that the employee’s right to reinstatement lapses or ends. Rather, it says that the employer can delay reinstatement. That is exactly what happened in this case. That is: plaintiff did not provide the form upon completion of the leave; the County requested it; plaintiff produced it; and then the parties work towards a solution. Further, 29 C.F.R. §825.312 says an employer may not terminate the employment of the employee while awaiting a certification of fitness to return to duty.
While an employee cannot wait around and return to work at his or her convenience, there is nothing indicating that the day after leave expires is the sole date upon which a person can return without forfeiting his or her rights, especially in this case where the County admittedly chose to work with the plaintiff regarding his return and even extended it with paid time off.
Nothing in the C.F.R. puts a timeframe on the required fitness for duty form.
While it is logical to assume that in order to avoid any downtime the employee should provide the form immediately after the 12 weeks, the regulations are silent with respect to timing.
Since federal regulations allow for delay for an employee to get paperwork, that suggest that there is not a strict timing requirement. Further, this case did not involve extreme behavior where the plaintiff put off returning to work: his leave ended on December 16, 2014; he got a note from a doctor on December 31, 2014; and submitted the same to the County on January 2, 2015. The County then asked for the official fitness for duty forms and the plaintiff provided two of those.
No indication exists that the County told the plaintiff he had to submit the form prior to December 16, nor was there any indication that plaintiff was not diligent in getting the requested forms to the County.

III

Court’s Reasoning and Denying Summary Judgment on the ADA and the Equivalent Idaho Human Rights Act Claims

Once an employer becomes aware of the need for accommodation, the employer has a mandatory obligation to engage in an interactive process with the employee in order to identify and implement appropriate reasonable accommodations.
What is a reasonable accommodation is typically a jury question.
Just what were the essential duties of plaintiff’s job were not clear-cut.
There are several questions of fact in dispute that are critical to the case, including: whether plaintiff could do the work; what were the essential functions of the job; and why plaintiff could not trade the functions of the job off with other employees as he had done prior to his FMLA leave.
Whoever breaks down the interactive process bears the liability. In this case, who was responsible for that breakdown of the interactive process is in hot dispute. In particular, both sides interacted with each other but neither side liked the other side’s suggested options. So, whether those communications and ideas were adequate under the ADA is a question the trier of fact must determine, i.e. a jury question.
When trying to determine whether a person is a qualified individual under the ADA, it is absolutely critical to remember that the question is whether the individual can perform the essential functions of the job with or without reasonable accommodations. As mentioned in the above paragraphs, whether plaintiff could perform the essential functions of his job with or without reasonable accommodations is in hot dispute and material to the dispute as well.
With respect to causation, the County’s Human Resources Manager admitted that the plaintiff’s disability played a role in the decision to reduce plaintiff’s hours at Rattlesnake. Accordingly, if the reduction in plaintiff’s hours was the moving factor behind the reduction in force resulting in his losing employment, it is reasonable to infer that plaintiff’s health issues were a consideration in his termination. Since there appears to have been multiple factors with respect to the reduction in force, it all should be presented to the jury for resolution.

Takeaways:

Nothing in the FMLA requires that the process of going on FMLA leave and the certification process of coming back from FMLA leave factor in reasonable accommodations. However, since the FMLA applies to employers with 50 or more employees and title I of the ADA applies to employers of 15 or more employees, an employer would have to be out of their mind not to factor in the with or without reasonable accommodation part when it comes to the FMLA certification process. On the plaintiff’s side, the distinction is important for pleading purposes. A defendant would be perfectly justified in getting an FMLA claim dismissed if that claim focused on the reasonable accommodation piece, but that would not be the case if that claim was phrased as an ADA claim.
Make sure your essential duties of the job are current, accurate, and reflect what is actually happening on the ground.
If a reasonable accommodation is working, why mess with it?
Employers want to review their policies and figure out the timing for when paperwork must be in with respect to returning from FMLA leave. You do want to build a least a little bit of flexibility into the process.
What is a reasonable accommodation is typically a question for the jury.
As we have discussed before, whoever breaks down the interactive process bears the liability.
Figuring out who broke down the interactive process is a question for the jury, at least in close calls.
Whether a person is a qualified individual with a disability under the ADA depends upon whether that person can do the essential functions of the job with or without reasonable accommodations. Don’t forget about the, “with or without reasonable accommodation piece.”
Whether a job can be performed with or without reasonable accommodations is a question of fact.
Interesting, that the court talks about the plaintiff’s health issues undoubtedly being a consideration in the termination. The court doesn’t address the issue of whether causation is sole cause analysis or causation is a motivating factor analysis. See this blog entry.
Not addressed in this case, but discussed here, is the important question of whether extending leave beyond FMLA leave is a reasonable accommodation under the ADA.
For another FMLA ADA interaction problem, check out this blog entry, which discusses forcing FMLA leave instead of engaging in the interactive process.
Don’t forget about reassignment as a reasonable accommodation.

Curiosity Killed the Cat: Disability Related/Medical Inquiries and the ADA

January 9, 2018 by William Goren 1 Comment

The blog entry for this week is a follow-up on the blog entry from last week. Last week, I discussed job relatedness and business necessity. This week we discuss medical related inquiries and disability related inquiries in two different cases. One from the Northern District of Texas and the other from the Fourth Circuit. The case from the Northern District of Texas is Mir v. L-3 Communications Integrated Systems . The case from the Fourth Circuit is Bingman v. Baltimore County. As usual, the blog is divided into categories, and they are: Mir facts; Mir court’s reasoning; Bingman court’s facts; Bingman court’s reasoning; and takeaways. The reader is free to focus on any or all of the categories in the blog entry

Mir Facts:

Plaintiff suffered from hip problems throughout his life and had a number of surgeries on his right hip, including multiple hip replacement operations or revisions. In 2005, during his left hip replacement, the sciatic nerve on one side of his hip was crushed causing permanent nerve damage. As a result, plaintiff walks with a pronounced limp and uses a cane to assist him while walking. In 2005, the injury required him to go on long term disability. The long-term disability provider required him to apply for Social Security benefits to offset the long-term disability benefits. He made certain representations on his Social Security Administration application for benefits and was awarded SSA benefits. In 2007, the plaintiff underwent another surgery to correct his hip, and he was physically able to return to work in 2008. In 2011, he applied to work for L-3 Communications at their Greenville, Texas facility. On October 11, 2011, he was contacted by the defendant and an interview was scheduled for October 17 of 2011. The specific job posting for the position was as follows:

Bachelors Degree in Mechanical or Civil Engineering with a minimum of 8 years of experience or Bachelor’s Degree with related experience. The candidate must have a knowledge of manufacturing processes, which include machining, NC programming, sheet metal and assembly. Additional knowledge of HDL Aircraft installation procedures is a plus. He/She should have experience with what constitutes a good engineering design with respect to producibility issues. In additional to these skills, the ability to work simultaneous projects and operate in a dynamic, fast-paced cross-functional environments is required. Strong written and oral communication skills are essential.

On October 17, 2011, a department head at L-3 Communications met the plaintiff at a recruiter’s office and led him to his office, which was located in a separate building to conduct the interview. During the walk to his office, approximately 100 yards away, the department head asked the plaintiff questions regarding his ability to walk. The plaintiff responded that he had a hip replacement surgery, a mistake was made, and his sciatic nerve was crushed. Once the interview started the department head also asked the plaintiff questions regarding the nature and extent of his physical limitations. More specifically, he made inquiries as to his short and long-term prognosis and a timeline of when the injuries occurred. Plaintiff testified that the discussion concerning his injuries lasted approximately 15 minutes. Three weeks later, human resources contacted the plaintiff to inform him that they declined to offer him a position. The plaintiff then filed a complaint with the Office of Federal Contract Compliance Programs, which initially concluded that he had been discriminated against because of his disability, but then issued a revised notification of results stating that there was insufficient evidence to conclude that discrimination occurred because of his disability. OFCCP then issued a notice of to sue, and the plaintiff brought suit in federal court.

Mir Court’s Reasoning

Claims of disability discrimination can be established by either presenting direct evidence or by using the indirect method of proof set forth in McDonnell-Douglas. The questions asked by the department head were not direct evidence of discrimination under the ADA.
Plaintiff was not bound by his statement to the Social Security Administration because those statement regarding his inability to work occurred approximately five years prior to his interview for the position at L-3 communications. He established that he underwent corrective surgery to correct the injury. His statement to the Social Security Administration were consistent with his claim that he could perform the duties of the position with reasonable accommodations. Finally, plaintiff offered sufficient explanation to reconcile his sworn assertion to the Social Security Administration regarding his inability to work with his claim that he was qualified for the position under the ADA. Accordingly, he was not judicially estopped from being a qualified individual under the ADA.
Knowledge of HDL aircraft installation procedures was not a necessary minimum qualification under the job posting for the position.
The job posting did state that a candidate for the position must have NC programming knowledge and the plaintiff lacked such knowledge.
The court could not find any authority requiring a prospective employer to accept a person for a position who does not meet all minimum qualifications. Accordingly, since the plaintiff did not have NC programming knowledge, he was unable to establish a prima facie case of discrimination due to his disability. The court was unpersuaded by plaintiff’s claim that a lack of NC programming knowledge was not a bar to the job because he had more advanced programming knowledge than the NC programming.
The ADA provides that an employer shall not conduct a medical examination or make inquiries of the job applicant as to whether such applicant is an individual with a disability or as to the nature or the severity of such a disability. 42 U.S.C. §12112(d)(2)(A). While damages liability must be based on something more than a violation of 42 U.S.C. §12112(d)(2)(A), that doesn’t preclude nominal damages. Accordingly, a genuine dispute of material fact existed with respect to plaintiff’s claim of improper inquiries under the ADA.

III

Bingman Court’s Facts

Plaintiff, formerly employed as a laborer with the Bureau highways of Baltimore County, Maryland, sued Baltimore County alleging he was terminated because of his disability in violation of the ADA. At trial, he received a verdict of $400,000 in damages, of which $298,000 consisted of noneconomic damages. The County argued that the District Court erred when it refused to allow the county to present evidence that the plaintiff applied for and received Social Security Disability Insurance benefits, and when it refused to instruct the jury regarding plaintiff’s obligation to explain the inconsistencies between the disability discrimination claims and his SSDI application. The County also argued that the jury’s noneconomic damages awards were not supported by the evidence.

Bingman Court’s Reasoning

With respect to the SSDI filing, the County was allowed to question the plaintiff regarding statements he made in his SSDI proceedings, and the District Court adequately instructed jury regarding its obligations to consider statements the plaintiff made in those proceedings.
The facts are undisputed that the County used out of date medical authorizations to obtain plaintiff’s cancer related medical records, and then made unlawful inquiries when it sought and received records regarding plaintiff, rather than limiting their request to the plaintiff’s back injury. As a result of those unlawful inquiries, the County received information about plaintiff’s cancer diagnosis and treatment, which it was not allowed to do.
It is also undisputed that the plaintiff was told to undergo a medical examination based solely on speculation that his bones may be brittle because of his cancer treatments.
The inquiries and examination were separate acts for which the jury was justified in awarding damages.

Takeaways:

Whether the bifurcation of direct evidence and indirect method when it comes to the burden of proof has continuing validity is debatable, as discussed in this blog entry.
The must read case on judicial estoppel can be found in this blog entry.
As mentioned last week, it is critically important that if you are going to make a disability related inquiry or a medical inquiry, the inquiry be narrowly focused to the issue at hand and not be any broader than necessary.
If you are curious about an applicant’s disability, keep it to yourself. Remember, curiosity killed the cat. The ADA does allow you to ask an applicant how they might perform the essential functions of the job in light of an obvious or self-disclosed disability, but even so, doing so is very very tricky. Training Training Training (see also ¶ 6 below), is always good.
Getting the ADA medical inquiry and disability related inquiry things wrong can lead to substantial liability.
With respect to medical inquiries and disability related inquiries, it really helps if people with disabilities (HR personnel with disabilities and/or attorneys with disabilities), are involved in the process of assessing when such medical inquiries and disability related inquiries may take place or have taken place.
Make sure your essential job functions in your job descriptions reflect how the job is actually performed.
Should you really be interviewing people who don’t meet the essential functions of the job with or without reasonable accommodations? Doesn’t that suggest the function of the job is not essential?

ADA and Reasonable Accommodations: The HR (Title I) Version

October 31, 2017 by William Goren Leave a Comment

A few weeks back, I attended a chat seminar put on by the Society for Human Resources Management on reasonable accommodations and the ADA. What happens in that kind of seminar is that people write in their questions online and then knowledge advisors respond. The knowledge advisors are very good about providing resources and not stepping into the realm of legal advice. Since I am an attorney, I thought I could go into more depth on the answers, though of course, what is said here, does not constitute legal advice. For that, an attorney-client relationship is needed. I have made the questions of general applicability so as to make sure it isn’t possible to know the specifics of any question. So, happy Halloween! And here goes:

What does an employer do if an employee can’t or will not get a doctor’s certification for accommodations/ when does an employer have the right to ask for medical documentation?

Answer: The employer has a perfect right to ask for reasonable documentation with respect to any request for accommodation. The key is the interactive process, and failure of an employee to engage in the interactive process means they are no longer otherwise qualified per the ADA. So, I would make it clear that you are attempting to work with the individual and that it is important for them to engage in the interactive process. Let them know that failure to engage in the interactive process may mean that they are no longer qualified under the ADA. Keep the interactive process collaborative rather than adversarial whenever possible.

A person uses up all of their FMLA leave, what does an employer do now?

Answer: A colleague of mine, Jeff Nowak, has a blog, now in my blogroll, focusing entirely on the FMLA. He wrote an excellent piece on this subject, which can be found here. Also, check out my blog entry on Severson, which can be found here.

If a company has a rule that they do not give out vacation time for let’s say six months after starting to work, must the employer grant vacation time anyway to accommodate a person with a disability?

Answer: One of the myths about the ADA is that it doesn’t apply to people on probation. It most certainly does. Further, if the person has just started work at a new employer, then the FMLA won’t apply either regardless of the number of employees the employer has. So, the key here is the interactive process and looking at whether the person can do the essential functions of the job with or without reasonable accommodations. Consider whether attendance is necessary to perform the essential functions of the job per this blog entry. Also, be sure to consider how your jurisdiction deals with mandatory reassignment, such as discussed in this blog entry. Finally, be sure to check out what the Job Accommodation Network says about possible reasonable accommodations.

How important is recruitment and advertisement and documenting physical demands of the job?

Answer: It is important as this is one of the EEOC factors to consider when deciding what is an essential function of the job. The question wouldn’t just apply to physical demands but to other kinds of demands as well, such as mental ones.

A person is out on workers compensation and returned to work with an adjusted modified work schedule being requested, is that a reasonable accommodation?

Answer: The key here is the interactive process. An employer does not have the obligation to create light-duty positions if they don’t generally offer those light-duty positions. Also, definitely want to look at the essential functions of the job and whether they can be performed with or without reasonable accommodations. Hiring a person to do an essential function of an employee’s job is not a reasonable accommodation. That said, don’t forget that the question is whether the employee can perform the essential functions of the job WITH or without reasonable accommodations.

When does a reasonable accommodation become unreasonable?

Answer: A reasonable accommodation is whatever gets the person with a disability to the same starting line as a person without a disability. So, be creative! Under title I of the ADA, an accommodation becomes unreasonable when it constitutes either a financial or logistical undue hardship. A financial undue hardship is very difficult to show since the vast majority of accommodations do not cost the employer anything. Those accommodations costing the employer something are not expensive, generally $500-$1400. Further, it is the entire business that is looked to when deciding undue financial hardship. With respect to logistical undue hardship, the best way to think of it is whether the accommodation would fundamentally alter the nature of the operations of the business.

What does the employer do if it is a third-party informing the employer of an employee’s disability and not the employee?

Answer: Disability related information cannot be kept in regular personnel file, rather it must be kept in a separate confidential file. The question I have is whether there are any work performance issues. If not, keep the information in mind should the situation arise later. If there are work performance issues, then you can ask the employee if there is anything you can do to help as performance seems to be trailing off and see how the employee responds. It is also helpful if you have an ADA/504 coordinator, which you are supposed to have anyway if you have more than 15 employees and take federal funds (Rehabilitation Act), or more than 50 employees (ADA).

Company has allowed an employee to not perform all essential functions of the job for many many years. Now, the company is demanding performance of all duties.

Answer: Under this scenario, it is clearly time to revisit just what the essential functions of the job really are. Remember, it is ultimately what is actually happening on the ground that dictates what the essential functions of the job are. Here, a strong argument exists that the job duties that have not been performed for many years are not essential and could be given to someone else. Finally, develop a system to periodically review the essential functions of the jobs with the focus on how the jobs are actually being performed.

What kind of documentation is needed for a service animal or support dog requested by an employee?

Answer: This one gets complicated. The rules for service dogs and support dogs may be very different depending upon the title of the ADA involved as we discussed here.

Who pays for an ASL interpreter?

Answer: The employer. It is possible that vocational rehabilitation services might be of assistance to a particular employee. Also, check out this blog entry.

If an employee is a minor, must the parents be involved?

Answer: If things are going well, it shouldn’t be an issue. If not, the first step would be to engage in the interactive process with the employee. Don’t forget about contacting the Job Accommodation Network. As a matter of preventive law, it might make sense to involve the parent if need be, but I would get the permission of the employee to do that first.

What happens if an employee refuses an employer’s reasonable accommodation offer?

Answer: Assuming an interactive process has occurred, the rejection of the reasonable accommodation offer would mean that the employee is no longer qualified under the ADA and loses his or her protection. Remember, the employee is not entitled to the reasonable accommodation they want, rather it is a negotiation process between the employer and the employee.

How much documentation can be requested to establish a disability?

Answer: Ask for reasonable documentation and do not make it overly intrusive. Using common sense will help here.

What if an employee in need of an accommodation cannot afford to pay for a doctor to assess his or her condition?

Answer: Use common sense and the interactive process. Are there free clinics the employee can go to?

When asking for a doctor’s certification, should the job description be attached every time?

Answer: As a matter of preventive law, I generally would as jobs can change over time.

Is teleworking a reasonable accommodation?

Answer: Check out this blog entry.

What are the rules for alcoholics and drug addicts?

Answer: They are not the same. Check out: this blog entry (“current” illegal drug user); this blog entry (medical marijuana); and this blog entry– including the comments- (Sarkisian-alcoholism).

Does ADA think enter into accommodating a person who is pregnant?

Answer: Yes. Check out this blog entry by my friend and colleague Robin Shea. Also, read this case, UPS v. Young.

What kind of doctor needs to offer the medical documentation?

Answer: Best approach would be to make sure the medical professional has knowledge of the individual and substantive knowledge of that disability. Use some common sense here.

How often should employees get trained on ADA issues?

Answer: As often as possible. Make sure, the person doing the training is knowledgeable. Also, I would say in new orientation for sure. After that, yearly for sure. Ideally, twice a year. You could have a roundtable at the six month mark and a more traditional and bigger training at the end of the year.

This entry is not legal advice!!!!!!

Feel free to contact me with any questions or to discuss any training needs that you might have.

Happy Halloween!

With or without reasonable accommodations

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