Wait, Now I Have to Allow Employees to Steal Too?

With the passage of the Americans with Disability Amendments Act, (ADAAA), Congress very purposefully moved disability-related inquiries away from whether employees are “qualified individuals with a disability” and refocused the inquiry on whether and how employers must attempt to accommodate employees and their claimed disabilities. Since this reframing of the primary disability inquiry, it seems employees, the Equal Employment Opportunity Commission, and courts keep coming up with new and onerous accommodation requirements. In fact, just recently, a federal appellate court changed course and said employers may need to allow disabled employees to work from home as a reasonable accommodation, despite having previously rejected such a claim years earlier.

Earlier this week, a federal judge in California issued an accommodation ruling that may cause significant dismay among retail employers by finding that employees may need to be permitted to essentially steal if necessary to address a medical condition or other disability. In the case, an employee of a retail drug store chain suffered from Type II diabetes. While working, the employee noticed symptoms of low blood sugar and tore open a $1.37 bag of potato chips ate them, and then continued on with her work without informing the employer of what she had done. The employer found the empty bag of chips, determined that the employee ate the chips without paying for them and fired the employee for violating its “grazing” policy, which it uniformly enforced in an effort to stem the chain’s $350,000,000 annual loss to employee theft.

The EEOC argued that an employer must accommodate disability-caused violations of workplace rules and therefore allow the employee to “graze” on the employer’s wares. Normally, allowance of disability-caused violations of workplace rules applies where an employee is absent or tardy, falls asleep at work, speaks in a loud voice etc., as a result of a disability. In response, the employer claimed, among its many arguments, that the EEOC’s own guidelines support its decision to terminate the employee by posing the following question:

Must an employer withhold discipline or termination of an employee who, because of a disability, violated a conduct rule that is job-related for the position in question and consistent with business necessity?

Even though the guideline answers this question in the negative (as long as the rule is uniformly applied), the court nonetheless decided that the employer did not establish that preventing theft and loss via employee grazing was “consistent with business necessity.” If further questioned whether the employee’s actions could be considered theft, when only after being caught, she offered to pay for the chips. On these bases, the court concluded that a jury should have the opportunity to consider whether the employee’s diabetic condition was causally connected to the misconduct and whether her conduct amounted to theft.

Retail employers in particular have rightful reason to be concerned by this ruling, particularly as the decision leaves it is unclear what the employer could have done to comply with the Americans with Disabilities Act short of giving the employee a pass to take its goods without permission and thus jeopardizing future enforcement of the work rule. With reasonable accommodation burdens seemingly growing by the day, this latest case once again highlights the importance of treating every disability, reasonable accommodation and interactive process situation on its own and making sure that sophisticated human resources personnel and often legal counsel provide guidance on these kinds of situations.