The EEOC Is Not Backing Off From Its Position on Leave As A Reasonable Accommodation

By Kathleen Jennings (kjj@wimlaw.com)

What does an employer do when an employee with a chronic health condition uses up all of her FMLA leave and accrued vacation time but still needs time off for medical treatment? During the Obama administration, the EEOC aggressively took the position that employers should not deny or unlawfully restrict the use of leave, including unpaid leave, as a reasonable accommodation to a worker’s disability under the Americans with Disabilities Act. The EEOC even filed lawsuits against employers that unceremoniously terminated employees who had exhausted all of their leave but needed additional leave to deal with serious medical issues.

Many wondered if this policy would change or be scaled back under a Trump administration. From the looks of a lawsuit filed by the EEOC this week, maybe not. On July 6, 2017, the EEOC filed a lawsuit against Time Warner Cable Inc. and Charter Communications Inc. in a California federal district court. (EEOC v. Time Warner Cable Inc., C.D. Cal., No. 17-01355, complaint filed 7/6/17). In the Complaint, the EEOC alleges that Time Warner Cable and Charter Communications violated federal law when they failed to provide additional unpaid leave to a worker seeking treatment for a disability. “This case should serve as a reminder to employers that it is their responsibility to provide reasonable accommodations to employees under the law,” Rosa Viramontes, the EEOC’s Los Angeles District director, said in a July 6 statement.

Pro tip: If an employee with a “disability” (as defined by the ADA) requests an accommodation at work, or the need for an accommodation is obvious, the employer must engage in an interactive process with the employee to determine what, if any, accommodation is reasonable for both sides. Employers can demonstrate a good-faith attempt to accommodate by meeting with the employee, requesting information about the limitations, considering the employee’s requests, and discussing alternatives if a request is burdensome. The EEOC has made it clear that it expects employers to at least consider leave as a form of employee accommodation.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

Retroactive Leniency is Not a Reasonable Accommodation

By Kathleen Jennings (kkj@wimlaw.com)

A recent decision out of the Tenth Circuit Court of Appeals tells us that a disabled employee is not entitled to retroactive leniency as a “reasonable accommodation.” In other words, an employer is not required by federal law to excuse a serious violation of the employer’s policies or work rules by a disabled employee, even when the employee claims that the violation was caused by the disability.

In DeWitt v. Southwestern Bell Tel. Co., 845 F.3d 1299 (10th Cir. 2017), Ms. Dewitt was a customer service representative who answered calls from customers requesting residential phone services. She had Type I diabetes and was insulin dependent. Throughout her employment at SWBTC, the company allowed Ms. DeWitt to take breaks to eat or drink to raise her blood sugar as needed.

Ms. DeWitt mistakenly left phone service on a customer’s account after the customer cancelled the service. Known as a cramming violation, the failure to remove a service plan from a customer’s account after the customer cancels the service is a violation of the SWBTC Code of Business Conduct and a terminable offense. Ms. Dewitt was suspended and placed on a Last Chance Agreement, whereby any further incidents of unsatisfactory performance would result in termination of her employment.

Approximately 2 months later, Ms. Dewitt hung up on two different customers while she suffered a severe drop in blood sugar at work. This time, she was terminated after a suspension meeting.

Thereafter, Ms. Dewitt filed suit against her employer and asserted claims of unlawful discrimination, failure to accommodate her disability, and retaliation. Her employer was granted summary judgment, which was affirmed on appeal.

It’s always risky business terminating an employee who is in any protected category. How did this employer win the case? First, Ms. Dewitt was unable to show that SWBTC’s reason for her termination—that she dropped two customer calls while on a Last Chance Agreement–was a pretext for disability discrimination. Second, the Court rejected Ms. Dewitt’s argument that SWBTC discriminated against her by failing to accommodate her disability by excusing the disconnected calls that she claims were caused by her disability. On this issue, the Court stated that

Ms. DeWitt’s accommodation claim fails because she did not request a reasonable accommodation to address concerns regarding the possibility of dropped calls; instead, she requested retroactive leniency for her misconduct. Specifically, Ms. DeWitt requested that SWBTC overlook that she hung up on at least two customers while on a Last Chance Agreement. Such retroactive leniency is not a “reasonable accommodation” as defined by the ADAAA. (emphasis added).

Bottom line: The Americans With Disabilities Act does not require covered employers to reasonably accommodate an employee’s disability by overlooking past misconduct—irrespective of whether the misconduct resulted from the employee’s disability. The Equal Employment Opportunity Commission’s Enforcement Guidance makes clear that the requirement to provide reasonable accommodations under the ADAAA is “always prospective,” and that “an employer is not required to excuse past misconduct even if it is the result of the individual’s disability.” U.S. Equal Opportunity Employment Comm’n, Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act at No. 36; see also id. at No. 35 (“An employer never has to excuse a violation of a uniformly applied conduct rule that is job-related and consistent with business necessity).

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

What Makes an Accommodation “Reasonable?”

By Kathleen Jennings (kjj@wimlaw.com)

When an employer has a disabled employee who requires an accommodation in order to perform the essential functions of his/her job, the challenge is to determine what type of accommodation is “reasonable” under the Americans With Disabilities Act (ADA). Reasonable to the employee? Reasonable to the employer? Reasonable to other employees? Are disabled employees entitled to special treatment?

When a disabled employee is seeking a job reassignment through a competitive hiring process, the answer to the last question is No, according to the Eleventh Circuit Court of Appeals.

As we stated in an earlier blog post, the ADA does not require an employer to provide an employee with the exact accommodation that he/she wants. In United States Equal Employment Opportunity Commission v. St. Joseph’s Hospital, 842 F.3d 1333 (11th Cir. 2016), the Eleventh Circuit Court of Appeals applied this rule in the context of employer hiring policies and held that the ADA’s reasonable accommodation requirement does not require reassignment without competition for, or preferential treatment of, the disabled.

Leokadia Bryk, a disabled nurse, sought a reasonable accommodation in the form of a job reassignment to another unit at St. Joseph’s Hospital because she required the use of a cane, which posed a safety hazard in the psychiatric ward where she worked. She was given the opportunity to apply for other jobs at St. Joseph’s Hospital, but was required to compete for them. She applied for three positions, but was not offered any of them because she was not considered the most qualified applicant. When Bryk did not obtain another Hospital position, the Hospital terminated her employment and the Equal Employment Opportunity Commission brought suit on her behalf. The case went to trial, resulting in a jury verdict in the Hospital’s favor. The EEOC appealed.

The Court noted that it is well-settled that employers are only required to provide alternative employment opportunities reasonably available under the employer’s existing policies. Further, the Court held that the ADA does not require employers to ignore competitive hiring policies:

Requiring reassignment in violation of an employer’s best-qualified hiring or transfer policy is not reasonable “in the run of cases.” As things generally run, employers operate their businesses for profit, which requires efficiency and good performance. Passing over the best-qualified job applicants in favor of less-qualified ones is not a reasonable way to promote efficiency or good performance. In the case of hospitals, which is this case, the well-being and even the lives of patients can depend on having the best-qualified personnel. Undermining a hospital’s best-qualified hiring or transfer policy imposes substantial costs on the hospital and potentially on patients.

In short, the ADA only requires an employer allow a disabled person to compete equally with the rest of the world for a vacant position.

Practice Tip: While an employee with a disability is not entitled to special treatment when competing against other employees for a position, he or she is also protected from discrimination because he or she has a disability. It is important not to make assumptions or rely upon stereotypes about a disabled person’s ability or inability to do a particular job.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

No, the ADA Does Not Require an Employer to Allow an Employee to Wear Flip Flops to Work

By Kathleen Jennings (kjj@wimlaw.com)

The Americans With Disabilities Act (ADA) allows a person with a disability to request a reasonable accommodation from his/her employer that will allow him/her to perform his/her job. However, the ADA does not require an employer to give an employee the exact accommodation that the employee wants; rather, the ADA requires the employee and employer to work through an interactive process to reach a reasonable accommodation that meets the needs of both parties.

What happens when an employee is unreasonable? An example comes to us from beautiful Sedona, Arizona. (Steely-Judice v. Taylor Fine Art, LLC, No. CV-14-08238-PCT-GMS, D. Ariz. Jan. 09, 2017). Ms. Steely-Judice worked at the Taylor Gallery, an art gallery in Sedona, Arizona, as a sales consultant. Taylor Gallery employs sales consultants throughout the gallery, and expects these employees to have “great attitudes, be good team players, and have the desire to succeed.” Taylor Gallery also upholds a professional dress code among its employees, and specifically prohibits its employees from wearing “flip-flop or thong sandals” while working.

Ms. Steel-Judice suffered from back problems due to an injury. She found that changing her shoes throughout the day helped to alleviate her back pain. Steely-Judice switched between two shoes in particular; a pair of orthopedic Dansk clogs and a pair of sandals.

Ms. Steely-Judice lasted all of 4 days at the gallery. On her first day of work, she wore her clogs. On the second day, she started with the clogs and changed into the sandals. The gallery director and Steely-Judice’s supervisor, Ms. Krista Drake, informed her that the sandals did not comply with Taylor Gallery’s dress code, and that she could not wear them to work. Steely-Judice told Drake that she needed to switch between shoes to manage her pain. Drake told Steely-Judice that she would ask the owner, Michael Taylor, whether she could wear the sandals despite the fact that they violated the dress code. On the third day, Steely-Judice was informed that she could not wear the sandals during her shifts because they did not comply with the dress code. Michael Taylor discharged Steely-Judice on the morning of her fourth day.

Taylor Gallery asserted that it discharged Steely-Judice due to her allegedly combative personality. According to Drake, Steely-Judice was “angry, combative and pushy” during her shifts. Steely-Judice argued that she was discharged due to her disability and her resulting request for an accommodation to wear shoes that did not comply with the dress code.

The District Judge granted summary judgment in the employer’s favor, finding that Steely-Judice failed to present significant and substantial evidence to challenge Taylor Gallery’s nondiscriminatory rationale for discharging her. Furthermore, the Court found that Steely-Judice’s subjective belief that she was doing a good job was insufficient to challenge her employers’ rationale for dismissing her.

Practice tip: As the employer did in this case, sometimes it can be better for an employer to “cut its losses” and discharge an employee quickly when she clearly has a problem attitude. There are some people who are going to sue, no matter what happens. In those cases, the employer should carefully document the attitude or performance problems so that it can present actual evidence to support the termination decision when and if the problem employee files a lawsuit.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

No Happy Ending for Employee Who Took Photos of Co-worker’s Crotch

By Kathleen Jennings (kjj@wimlaw.com)

It is generally not a good thing when an employee takes a sexual harassment investigation into her own hands. When that investigation involves an employee taking photographs of a disabled co-worker’s crotch area, and the employee shows those photographs to not only management but other employees, it should come as no surprise that the photographer is discharged.

In Furcron v. Mail Ctrs. Plus, LLC (11th Cir., No. 15-14595, 12/16/16), a case out of Atlanta, the plaintiff complained that a co-worker with Asperger’s syndrome was sexually harassing her. The plaintiff, Furcron, alleged that during the six days she and the disabled co-worker, Seligman, worked together in late 2012, he frequently invaded her personal space while his penis was erect. He also stared at her, tried to look down her shirt and at her underwear when she bent over and rubbed up against her while in a state of arousal. Furcron took photographs of Seligman’s crotch to document what she perceived as asexual harassment. She alleged that when she showed the photographs to management employees, they either laughed or told her Seligman meant no harm and ultimately failed to remedy the situation. Furcron also showed the photographs to at least three non-management employees before showing them to a manager. As a result, Furcron was terminated for violating the company’s policy against harassment.

Furcron filed a lawsuit and alleged that she was terminated in retaliation for complaining about sexual harassment. She also brought a claim of sexual harassment based upon Seligman’s behavior and the company’s failure to address it. The Eleventh Circuit Court of Appeals held that summary judgment was proper on Furcron’s retaliation claim because Furcron failed to rebut the employer’s explanation that her discharge was based on her violation of a company policy prohibiting harassment in the form of “graphic material” based on sex or disability.

However, the Eleventh Circuit also held that summary judgment was not proper on Furcron’s claim of sexual harassment, and the Court also held that the district court improperly excluded another female worker’s affidavit stating that Seligman also harassed her and that she witnessed him rubbing up against Furcron.

This case also illustrates the delicate situation where the employer must deal with behavior that some workers may find offensive, but the behavior may be caused by another worker’s disability. However, as we have advised on numerous occasions, it is never in a company’s best interest to ignore or laugh at any employee’s complaint of harassment.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

 

©2016 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

 

EEOC Publishes Sample Notice for Employer-Sponsored Wellness Programs

By Kathleen Jennings (kjj@wimlaw.com)

Does your company have an employer sponsored wellness program? New rules published on May 17, 2016, under the Americans with Disabilities Act (ADA) require employers that offer wellness programs that collect employee health information to provide a notice to employees informing them what information will be collected, how it will be used, who will receive it, and what will be done to keep it confidential. The EEOC has published the sample notice below to help employers comply with the ADA:

NOTICE REGARDING WELLNESS PROGRAM

[Name of wellness program] is a voluntary wellness program available to all employees. The program is administered according to federal rules permitting employer-sponsored wellness programs that seek to improve employee health or prevent disease, including the Americans with Disabilities Act of 1990, the Genetic Information Nondiscrimination Act of 2008, and the Health Insurance Portability and Accountability Act, as applicable, among others. If you choose to participate in the wellness program you will be asked to complete a voluntary health risk assessment or “HRA” that asks a series of questions about your health-related activities and behaviors and whether you have or had certain medical conditions (e.g., cancer, diabetes, or heart disease). You will also be asked to complete a biometric screening, which will include a blood test for [be specific about the conditions for which blood will be tested.] You are not required to complete the HRA or to participate in the blood test or other medical examinations.

However, employees who choose to participate in the wellness program will receive an incentive of [indicate the incentive] for [specify criteria]. Although you are not required to complete the HRA or participate in the biometric screening, only employees who do so will receive [the incentive].

Additional incentives of up to [indicate the additional incentives] may be available for employees who participate in certain health-related activities [specify activities, if any] or achieve certain health outcomes [specify particular health outcomes to be achieved, if any]. If you are unable to participate in any of the health-related activities or achieve any of the health outcomes required to earn an incentive, you may be entitled to a reasonable accommodation or an alternative standard. You may request a reasonable accommodation or an alternative standard by contacting [name] at [contact information].

The information from your HRA and the results from your biometric screening will be used to provide you with information to help you understand your current health and potential risks, and may also be used to offer you services through the wellness program, such as [indicate services that may be offered]. You also are encouraged to share your results or concerns with your own doctor.

Protections from Disclosure of Medical Information

We are required by law to maintain the privacy and security of your personally identifiable health information. Although the wellness program and [name of employer] may use aggregate information it collects to design a program based on identified health risks in the workplace, [name of wellness program] will never disclose any of your personal information either publicly or to the employer, except as necessary to respond to a request from you for a reasonable accommodation needed to participate in the wellness program, or as expressly permitted by law. Medical information that personally identifies you that is provided in connection with the wellness program will not be provided to your supervisors or managers and may never be used to make decisions regarding your employment.

Your health information will not be sold, exchanged, transferred, or otherwise disclosed except to the extent permitted by law to carry out specific activities related to the wellness program, and you will not be asked or required to waive the confidentiality of your health information as a condition of participating in the wellness program or receiving an incentive. Anyone who receives your information for purposes of providing you services as part of the wellness program will abide by the same confidentiality requirements. The only individual(s) who will receive your personally identifiable health information is (are) [indicate who will receive information such as “a registered nurse,” “a doctor,” or “a health coach”] in order to provide you with services under the wellness program.

In addition, all medical information obtained through the wellness program will be maintained separate from your personnel records, information stored electronically will be encrypted, and no information you provide as part of the wellness program will be used in making any employment decision. [Specify any other or additional confidentiality protections if applicable.] Appropriate precautions will be taken to avoid any data breach, and in the event a data breach occurs involving information you provide in connection with the wellness program, we will notify you immediately.

You may not be discriminated against in employment because of the medical information you provide as part of participating in the wellness program, nor may you be subjected to retaliation if you choose not to participate.

If you have questions or concerns regarding this notice, or about protections against discrimination and retaliation, please contact [insert name of appropriate contact] at [contact information].

 

To ensure that this form meets the needs the of the business as well as the requirements of the law, any company with a wellness program should consult with competent employment counsel.

Kathleen Jennings is a partner in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She can be contacted at kjj@wimlaw.com.

©2016 Wimberly Lawson

EEOC Issues Final Rules on Employer Wellness Programs

By Kathleen Jennings (kjj@wimlaw.com)

Many employers offer workplace wellness programs intended to encourage healthier lifestyles or prevent disease. These programs sometimes use medical questionnaires or health risk assessments and biometric screenings to determine an employee’s health risk factors, such as body weight and cholesterol, blood glucose, and blood pressure levels. Some of these programs offer financial and other incentives for employees to participate or to achieve certain health outcomes.

The U.S. Equal Employment Opportunity Commission (EEOC) issued final rules this week that describe how Title I of the Americans with Disabilities Act (ADA) and Title II of the Genetic Information Nondiscrimination Act (GINA) apply to wellness programs offered by employers that request health information from employees and their spouses. The two rules provide guidance to both employers and employees about how workplace wellness programs can comply with the ADA and GINA consistent with provisions governing wellness programs in the Health Insurance Portability and Accountability Act, as amended by the Affordable Care Act (Affordable Care Act).

The ADA and GINA generally prohibit employers from obtaining and using information about employees’ own health conditions or about the health conditions of their family members, including spouses. Both laws, however, allow employers to ask health-related questions and conduct medical examinations, such as biometric screenings to determine risk factors, if the employer is providing health or genetic services as part of a voluntary wellness program. The final ADA rule provides that wellness programs that are part of a group health plan and that ask questions about employees’ health or include medical examinations may offer incentives of up to 30 percent of the total cost of self-only coverage. The final GINA rule provides that the value of the maximum incentive attributable to a spouse’s participation may not exceed 30 percent of the total cost of self-only coverage, the same incentive allowed for the employee. No incentives are allowed in exchange for the current or past health status information of employees’ children or in exchange for specified genetic information (such as family medical history or the results of genetic tests) of an employee, an employee’s spouse, and an employee’s children.

The final rules, which will go into effect in 2017, apply to all workplace wellness programs, including those in which employees or their family members may participate without also enrolling in a particular health plan.

The rules are available in the Federal Register at https://www.federalregister.gov/articles/2016/05/17/2016-11558/regulations-under-the-americans-with-disabilities-act and https://www.federalregister.gov/articles/2016/05/17/2016-11557/genetic-information-nondiscrimination-act.

©2016 Wimberly Lawson