Meeting Your Accommodation Requirements Under the ADA
By David Froiland
Not long ago, an employee who had been on medical leave for nearly six months reported that his restrictions were now “permanent.” The company terminated the employee because, given the restrictions, he could not perform the essential functions of his job. The employee sued the company, claiming it had violated the ADA by failing to reasonably accommodate his condition. In the lawsuit, the employee’s lawyer asked the company to answer the following question:
Please describe all efforts made to accommodate Plaintiff’s medical condition before discharging him.
This question is asked in every ADA lawsuit, and the job of the HR manager is to make sure there is a lot to talk about when it is time to answer this question. By illustration, here are two possible answers:
Answer One
We compared the restrictions to the essential functions of the job, and decided Mr. Smith could not perform some of those functions. For that reason, we had no choice but to terminate him.
Answer Two
The company took the following steps.
- We compared the restrictions to the essential functions of the job and determined there were several functions that Mr. Smith could not perform, including the following specific functions ….
- We discussed those functions with a group of internal and external experts (including the Job Accommodation Network (http://askjan.org/soar/index.htm)) to determine if there was some technical assistance we could provide that would help Mr. Smith perform the functions. We could not come up with a solution.
- Next, we looked at all the other open positions in the facility, both hourly and salaried, to see if Mr. Smith could perform any of those jobs. He had the qualifications to perform three of the jobs, but again, given his restrictions, he could not perform the essential functions of the jobs.
- We went through the same process with our internal and external experts, covering each of those jobs, but as with Mr. Smith’s original job, we could not find a solution that would let him perform the jobs.
- At that point, we wanted to avoid terminating Mr. Smith, so we put him on leave for six more months, and we asked him to let us know right away if there were any changes in his situation.
- In addition, we kept an eye out for any positions that became available during that six-month period that might have been within Mr. Smith’s qualifications. Unfortunately, no such positions became available.
- Still wanting to avoid termination, at the end of the six-month period, we called Mr. Smith and asked if there had been any change in his condition, or if he could think of any possibilities that we had not tried. Neither he nor the company could come up with any alternatives.
- It was only after we took all these steps that we reached the point of termination.
The answers provided above are meant to illustrate possible accommodations and not requirements in every instance. Nevertheless, going through the process described in Answer Two makes it far more likely you will be able to find a solution that allows the employee to remain at work. Even if you cannot ultimately find a solution, the process described in Answer Two will give you a far better chance of successfully defending an ADA claim.
When in Doubt, Seek a Second Medical Opinion
By Diane Gianos
A former UPS employee recently had her claims reinstated against her employer, relating to denial of her request for 10 weeks of FMLA leave to care for her autistic son. Stroder v. United Parcel Service, Inc. 2010 WL 3447274 (M.D.N.C.).
Although Veda Stroder’s son had not yet been diagnosed with autism at the time of her request for FMLA leave, he had been diagnosed with a learning disability and speech impairment that required ongoing speech therapy. The medical certification submitted by the son’s pediatrician indicated that he had a “chronic serious health condition” based on “very significant delays in communication.” It also stated that Ms. Stroder needed to be absent from work because her son required assistance for basic medical or personal needs or safety and because her presence to provide psychological comfort to her son would be beneficial to his recovery. Human Resources Occupational Health Supervisor Ralph L. Brown, Jr. concluded that the child’s speech delays and need for speech therapy did not constitute a “serious health condition.”
Ms. Stroder contends that she later provided additional information about her child’s condition, including that he was being evaluated for autism and hearing loss. Mr. Brown denied Ms. Stroder provided him with additional information. The Court held that to the extent Ms. Stroder may have presented Mr. Brown with additional information beyond what was contained in the medical certification or which rendered the medical certification ambiguous regarding the extent of the child’s issues, Mr. Brown could have requested additional information and certification from Ms. Stroder. If the medical certification was viewed as incomplete, Mr. Brown was required to provide Ms. Stroder with notice of the deficiency and a reasonable opportunity to cure the deficiency. 29 C.F.R. 825.305.
The Court agreed that Ms. Stroder’s employer did not have to obtain a second opinion but noted that there are potential pitfalls for an employer who chooses not to pursue a second opinion. The “FMLA is not designed to reward employers who avoid obtaining further information or certification where needed.” An employer’s failure to determine whether leave should be designated as FMLA-protected may not shield the employer from liability. The Court found the employer was not entitled to disregard the information and was obligated to inform Ms. Stroder of the need for additional information if the medical certification was incomplete.
Employers who have doubts regarding FMLA eligibility should not deny the leave without first considering sending the employee for a second medical opinion or requesting additional information from the employee or her original health care provider.
EEOC Reports Record Number of Charges Filed
By Bud Bobber
On November 15, 2010, the EEOC published its Performance and Accountability Report for Fiscal Year 2010 (ending September 30, 2010). The Report confirmed what many suspected — namely, that there were a huge number of charges filed with the EEOC in its FY 2010. In fact, nearly 100,000 charges were filed with the EEOC in 2010 — the most ever in its 45-year history and a 7.2-percent increase over the number of charges filed in 2009. The EEOC attributed this record-breaking year to its expanded statutory authorities related to the ADA Amendment Act, the Genetic Information Nondiscrimination Act, and the Lilly Ledbetter Fair Pay Act. The EEOC also claimed that the rise in charge filings is attributable to its easier filing procedures and better customer service, including by telephone and e-mail. Many predicted this surge in filings during the slow economy in which employers have had to make hard termination and layoff decisions, often more quickly than usual, and discharged employees faced difficulty finding alternative employment. Without ready options for alternative employment, individuals seem more likely to challenge actions by former employers by filing charges.
The EEOC proudly reports that despite the record number of charge filings, its backlog remained relatively constant (at approximately 16,000 charges) due to the work of an expanded staff. It also reported that only 19.2 percent of the charges ended with a “merit factor resolution,” down from 20.3 percent in FY 2009. The EEOC filed 250 lawsuits in 2009, and resolved 285 (resulting in monetary recovery in the amount of $85 million). The EEOC has a total of 457 cases on its active docket.
The Agency continues to emphasize its Systemic Initiative, which it launched in April 2006. It is a “bang-for-the-buck” type of enforcement approach that emphasizes the identification, investigation, and litigation of employer polices or practices that implicate alleged discrimination having a broad impact on an industry, profession, company, or geographic location. More details about the Systemic Initiative can be found at http://tinyurl.com/26k9347. Accordingly, employers should respond with extra concern and resources when facing a charge that attacks a policy or practice that affects multiple individuals.
The EEOC’s Report is available online at http://tinyurl.com/2fj2zha.