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Take the Target Off Your Back

Disability accommodation denial has become a hotbed of litigation.
 

By Debbie S. Friedman
 
 
Disability discrimination remains a hot button issue in the workplace. Employees and applicants file more disability discrimination charges with the Equal Employment Opportunity Commission (EEOC) each year, totaling some 25,000 charges in fiscal year 2011 alone.
 
 
The EEOC also is becoming more aggressive in pursuing employers who deny reasonable accommodations to disabled employees. In December 2012, the EEOC sued Britthaven, Inc. and its successor, Principle Long Term, Inc., a nursing and rehabilitation center in North Carolina, for firing an employee with breast cancer who was approved for a four-to-six week leave for surgery, but later denied an additional month of leave due to her medical condition. At the same time, the EEOC targeted another nursing home operator in North Carolina, Camden Place Health & Rehab, L.L.C., which required all of its certified nursing assistants (CNAs) to supervise residents’ scheduled smoking breaks. One CNA who suffered from asthma complained that the cigarette smoke aggravated her condition, and asked to be excused from supervising smoke breaks. The company denied her accommodation request and fired her for refusing to continue supervising the breaks.
 
 
Also last month, the EEOC announced the settlement of a lawsuit against The Scooter Store, a company that caters to those with limited mobility. The EEOC sued that company for refusing to grant a limited mobility manager a temporary leave of absence due to a knee injury related to his psoriatic arthritis. As part of the settlement, The Scooter Store paid the employee $99,000, and executed a five-year consent decree requiring the company to modify its leave policy and monitor and train its employees on anti-discrimination law. In November 2012, the EEOC settled a similar disability discrimination case with a nursing home, GGNSC Charlotte Renaissance, LLC, for refusing to provide a leave of absence to an employee who was hospitalized for a major depressive episode. In that settlement, the company was required to pay the employee $50,000 in damages and sign a two-year consent decree requiring, among other things, training of employees on anti-discrimination law and submission of periodic reports identifying each request for accommodation and its outcome.
 
 
The EEOC’s trend of targeting employers who refuse to offer reasonable accommodations to their employees will continue. Indeed, on December 17, 2012, the EEOC approved a Strategic Enforcement Plan for fiscal years 2013-2016. One of the agency’s enforcement priorities in that plan is reasonable accommodation issues under the Americans with Disabilities Act (ADA), the federal law prohibiting disability discrimination.
 


Protection Plan
Employers should be actively reducing their risk exposure to charges and lawsuits based on failure to reasonably accommodate applicants and employees. To do so, employers should engage in a periodic holistic assessment of the company’s policies and procedures on leaves of absence and other requests for accommodations.
 


The ADA requires employers with 15 or more employees to offer reasonable accommodations to qualified applicants and employees with known disabilities. Examples of reasonable accommodation include, but are not limited to, some core actions: modifying facilities or other aspects of the work environment, modifying or acquiring equipment, and/or restructuring work schedules, non-essential job functions, and training programs and/or examinations. Other reasonable accommodations might include leaves of absence, reassigning an employee to a vacant position, and allowing an employee to telecommute. Decisions on appropriate accommodations must be based on the particular facts of the situation; they do not require an employer to lower production standards, remove essential job functions, or provide individuals with wheelchairs, hearing aids, or other devices if those devices are also needed outside of work.
 
 
Employers are not required to make an accommodation if doing so would impose an “undue hardship” for the employer. “Undue hardship” is defined as an “action requiring significant difficulty or expense” when considered in light of a number of factors, including the nature and cost of the accommodation in relation to the size, resources, nature, and structure of the employer’s business. Furthermore, employers need not accommodate an individual if the individual would present a “direct threat,” such that the individual poses a significant risk of substantial harm to the health or safety of the individual or of others, if that risk cannot be eliminated or adequately reduced by a reasonable accommodation. Importantly, employers may not assume that a direct threat exists, but must demonstrate the existence of a significant risk of substantial harm via objective, medically supportable means.
 
 
Self-Assessment
Many companies have a written policy that prohibits disability discrimination. Employers should ensure that their written policy states, at a minimum, that the employer meets the following: (1) does not discriminate or retaliate against individuals with disabilities, (2) provides reasonable accommodations to individuals with known disabilities, and (3) has a procedure advising individuals how to request an accommodation. The policy should clearly set forth to whom requests for accommodations may be made, and provide guidance on the general types of information that the individual should provide in order for the employer to evaluate the request.
 
 
Given recent EEOC trends, more due diligence is a must, as a written anti-discrimination policy is not enough. Employers should consider how other policies might impact evaluations of reasonable accommodation requests. For example, the EEOC’s Enforcement Guidance on Reasonable Accommodation and Undue Hardship states that no-fault leave policies, under which employees are automatically terminated after they have been on leave for a certain period of time, are generally unlawful, absent a showing of undue hardship. The EEOC reasons that providing an extended leave of absence is a form of reasonable accommodation, as is modifying workplace leave policies to allow for extensions as a reasonable accommodation.
 
 
In fact, in the last two years, the EEOC settled multiple lawsuits for failure to accommodate disabled employees by providing leaves of absence. In one such lawsuit, the EEOC settled a nationwide class disability lawsuit against Verizon Communications for $20 million based on the company’s refusal to modify its no-fault attendance plan to provide non-chargeable absences as a form of reasonable accommodation for disabled employees. The EEOC also recovered $1.3 million for employees against Denny’s Inc., a national restaurant chain, when that company refused to modify the maximum leave permitted under its leave policy for disabled employees.
 
 
A related potential pitfall for employers is the interaction between the ADA and the Family and Medical Leave Act (FMLA). Employers with 50 or more employees, who are covered under the FMLA, may have policies or procedures for terminating employees who request a leave of absence but either are not eligible for FMLA leave or have exhausted their FMLA leave entitlement. As with other types of maximum leave policies, employers must be careful not to treat ineligibility for, or exhaustion of, FMLA leave as grounds for termination without considering whether a non-FMLA leave of absence would be a reasonable accommodation.
 
 
Employers also must ensure that robust procedures are in place to engage in an “interactive process” with employees who have requested accommodations for their disabilities. The interactive process involves an informal dialogue between the employer and employee in which the employer can learn more about the nature of the employee’s request, request any information that might be necessary to fully evaluate the request, and provide the opportunity to explore other potential accommodations if need be. Failure to engage in this process can result in liability, as recently was the case with Dillards, a national retail chain. Just last month, the EEOC settled a lawsuit against Dillards under which the company paid $2 million in damages, agreed to provide employee training, and further agreed to hire an ADA consultant to review and revise company policies for ADA compliance. In that lawsuit, the EEOC alleged, among other claims, that Dillard did not regularly engage in the interactive process with employees who exhausted the maximum allowed sick leave to determine if additional leave would be a reasonable accommodation under the ADA.
 
 
The Training Imperative
The importance of periodic training, especially for managers and supervisors, is critical to successful implementation of any anti-disability discrimination policy. Indeed, two recent cases highlight the dangers of allowing employees’ baseless fears to guide workplace decisions. Last month the EEOC filed a lawsuit against Sony Electronics and Staffmark Investment, LLC, a staffing agency, alleging that a woman with a prosthetic leg was unlawfully terminated from her temporary job based on a concern that someone might bump into her. Meanwhile, the employee had been performing the job and had not requested an accommodation. A few months earlier, in August 2012, the EEOC settled an unfounded disability bias case against Hawaiian Electric Company, Inc., for failure to place an employee into a meter reader position she applied for because she was blind in one eye. The employee had good vision in her other eye, and could have performed the essential functions of the meter reader job, but was denied the opportunity on the unfounded presumption she could not do so. As part of the settlement, the electric company agreed to pay $50,000 in damages and signed a three-year consent decree requiring training on disability discrimination law and the creation of an ADA coordinator position within the company.
 
 
Employer-provided training should address both the ADA’s prohibitions and obligations, with emphasis on the need to identify and respond appropriately to requests for reasonable accommodations. Training also should include a discussion of how the company’s various leave and other applicable policies are to be applied in the reasonable accommodation context, noting that modifications to policies might themselves be reasonable accommodations depending upon the circumstances. Managers and supervisors handling reasonable accommodation requests should further be advised as to the availability of outside resources to assist in evaluating reasonable accommodation issues. The Job Accommodation Network, for instance, is a free service of the U.S. Department of Labor’s Office of Disability Employment Policy, and it provides a wealth of job accommodation information. Additionally, employers should consider appointing an ADA coordinator or team of individuals to evaluate all reasonable accommodation requests for compliance with company policy and to ensure consistent decision-making.
 
 
Don’t become an enforcement target. Review your company’s policies and procedures, train and retrain employees, and understand how your company can improve its handling of reasonable accommodation issues.

 
Debra S. Friedman is a member in Cozen O’Connor’s labor and employment department, where she counsels and defends companies with respect to ADA and other discrimination issues. She can be reached at dfriedman@cozen.com or at 215.665.3719.
 

Tags: Screening & Selection, Talent Acquisition

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