Tag Archives: ADA

Employee’s Lawsuit Based On A Non-Obvious Mental Disability Dismissed

Lawsuit Dismissed

Under the provisions of the Americans with Disabilities Act, an employee who wishes to seek an accommodation of the restrictions imposed by their disability must bring their disability to the attention of the employer, if it is non-obvious. The Eighth Circuit Court of Appeals, in Walz v. Ameriprise Financial, Inc., upheld the dismissal of a lawsuit because the plaintiff had not informed her employer of either her disability or that an accommodation was necessary to perform the essential functions of her job.

The plaintiff’s job required people, teamwork, communication and time management skills. It also required that she be “good at relationships.” However, she suffered from bipolar affective disorder, which apparently caused her to interrupt meetings, disturb co-workers and disrespect her supervisor. After several incidents, her supervisor issued a formal behavioral warning. The plaintiff then applied for FMLA leave, which was granted by the company’s third-party administrator. Upon her return to work, plaintiff gave her supervisor a note from a doctor at a mental health service which cleared her to return to work for 40 hours a week and stated that she had been stabilized on her medication. However, her erratic and disruptive behavior returned. She was terminated because of her repeated misconduct.

Plaintiff did not ever inform her employer of the nature of her disorder. Nor did she request any accommodation.

To establish her claim of disability discrimination, the Court noted that she must establish that she was a “qualified disabled person” within the meaning of the ADA. The first prong of the test to determine whether she was qualified is whether she possessed the requisite skills, education, certification and experience. She did. The second part of the test was whether the plaintiff could, despite her impairments, perform the essential functions of the job either with or without reasonable accommodation. Upon a review of the record, the Court concluded that plaintiff could not make a sufficient showing that she was able to perform the essential functions of the position without an accommodation.

However, it noted that she also may be qualified under the ADA if a reasonable accommodation would have allowed her to perform the essential functions of her position. However, plaintiff had failed to inform her employer of her disability or even request an accommodation. Thus, it was concluded that the employer had no duty to accommodate her. The plaintiff then argued that the note from a doctor with the mental health service which contained a reference to medication stabilizing her condition was sufficient to put the employer on notice of plaintiff’s disorder. While her supervisor did acknowledge that he “guessed” that plaintiff had been treated for a mental health issue, those facts, even if they established the plaintiff suffered from bipolar disorder, did not specifically identify any resulting limitations. Because plaintiff failed to disclose her non-obvious disability and related limitations, she did not sufficiently establish that she could perform the essential functions of her job with reasonable accommodation.

The takeaway from the Walz decision is that while there may be certain behaviors and conditions which would put an employer on notice of the existence of an employee’s disability, where the disability is a psychological one, an employee’s erratic behavior, by itself, may not impose a duty upon the employer to consider accommodation. Other decisions involving the ADA have concluded that an employer need not be a “mind reader” and, without appropriate notification by an employee, it need not leap to the conclusion that the employee needs an accommodation and then pursue the interactive process to determination whether an accommodation was available.

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Do You Have An ADA Policy In Your Handbook?

Employee Handbook

Every employee handbook should have a policy preventing discrimination and harassment in the workplace. These policies generally cover several protected groups including individuals with disabilities under the Americans with Disabilities Act (ADA). However, employers need to take their handbook one step further and create a policy that addresses accommodations in the workplace for disabled applicants and employees.

During our recent Master Series in April, we highlighted several policies that should be contained in every handbook including an ADA accommodations policy. Here are the terms you should have in your accommodations policy:

    • The policy should be directed toward “qualified individuals with disabilities.” Under the ADA, a qualified individual with a disability is a person that meets the legitimate skill, experience, education or other requirements of the employment position and can perform the “essential functions” of the job with or without reasonable accommodation.
  • The policy should confirm that the employer will provide reasonable accommodations to disabled applicants or employees if the accommodation would allow the individual to perform the essential functions of his or her job, unless doing so would create an undue hardship.
  • The policy should advise the employee that he or she is responsible for requesting a reasonable accommodation. Employers are only required to make reasonable accommodations for known physical and mental impairments. An employee does not need to use the magic words “reasonable accommodation,” but must disclose that: (1) he or she has a disability that creates work-related limitations; and (2) an accommodation is needed in order to do the job.
  • The policy should identify the specific individual or position to contact regarding accommodations. At a minimum, the specific job title should be referenced in the policy (e.g., Human Resources Manager or Safety Director).
  • The procedures for requesting an accommodation should be clearly stated in the policy including the requirement that requests be submitted in writing. It is strongly recommended that the policy direct the employee to submit the following information in writing: (1) the reason the employee believes he or she needs an accommodation including a statement of the limitations and restrictions imposed by the disability; (2) the job duties or assignments the employee is having difficulty performing; (3) a description of the accommodations requested by the employee; and (4) a statement as to how accommodations will help the individual perform his or her essential functions. All of this information will be fully discussed during the interactive process.
  • The policy should confirm that the employer has the right to request medical information concerning the employee’s disability and need for an accommodation. Any medical information received as a result of a request for a reasonable accommodation should be kept confidential and maintained in a separate file.

Once a request for an accommodation is received pursuant to the employer’s policy, the interactive process must be initiated with the employee to fully explore accommodations in the workplace. When questions surface regarding requests for accommodations or an employer’s legal obligations, it is recommended that employment counsel should be contacted at the outset to provide guidance regarding the process.

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Five Practical Tips For Providing Reasonable Accommodations in 2014

ADA requestIn recent years, the EEOC has put an emphasis on reasonable accommodations under the Americans with Disabilities Act (“ADA”) and its amendments, which has led to increase in failure to accommodate claims under the ADA. Set forth below are five practical tips to remember when a disabled employee is entitled to a reasonable accommodation.

1. Recognize a Request and Immediately Engage in the Interactive Process. Under the ADA, employers are required to engage in the interactive process when an employee requests a reasonable accommodation. In fact, part of an employee’s claim that an employer failed to accommodate the employee is a claim that the employer failed to engage in the interactive process. The first step of the interactive process is recognizing that a request has been made. Generally, it is the employee’s duty to make a reasonable accommodation request. The employee is not required to use any magic buzzwords. It is important for employers to recognize when an employee has made such a request and important to train supervisors and managers in recognizing such a request. The employee only needs to ask for some change or adjustment in the workplace and link that request to his or her disability. The employer’s response to the request must be “expeditious”, and a delay in responding may be a cause of action for the employee. After a request has been made, the employer has an obligation to engage in the interactive process, which requires the following steps: (i) recognize an accommodation request; (ii) gather information; (iii) explore accommodation options; (iv) choose a reasonable accommodation; (v) implement the reasonable accommodation; and (vi) monitor the reasonable accommodation.

2. Let the Employee Do the Talking. The best source of information about a reasonable accommodation request will likely come from the employee since he/she is the one requiring the accommodation. A good tool to use during the interactive process is a questionnaire for the employee to fill out. The employee should be asked to describe his or her impairment, identify his or her limitations, and provide suggestions for accommodations. Additionally, seriously considering the employee’s preference may be the best choice in maintaining a happy workforce and preventing a later claim, as long as such a request is reasonable. For example, a federal appeals court recently found that an employee was denied a reasonable accommodation where the employer rejected the employee’s choice of telecommuting to work, despite the fact that the employer offered other options to accommodate the employee. For more information on this case, see “Do I Really Need To Come To Work? New Frontiers In ADA Accommodation”. As an update on that case, on August 29, 2014, the United States Court of Appeals for the Sixth Circuit voted to rehear the case en banc. This means that the previous ruling by the court has been vacated and the case will be heard again by the full court. Stay tuned for an update when the Sixth Circuit issues its new decision.

3. Don’t Forget About Reassignment. If an employee has permanent restrictions and can no longer perform the essential functions of his or her job, an employer is still required to engage in the interactive process and consider job reassignment. If there is no vacant equivalent position for which the employee is qualified, the employee may be reassigned to another job with less pay and benefits as an accommodation. Don’t forget about the FMLA, however, which requires that an employee be restored to his or her original job or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment upon return from FMLA leave. Remember, employers are not required to create a new job, move another employee, promote the employee or violate other employees’ rights under a collective bargaining agreement or other employment agreement when considering reassignment as an accommodation. Additionally, in the Eighth Circuit, which includes Nebraska, Minnesota, Iowa, Missouri and North and South Dakota, if there is a vacant position, the employer may follow company policy by choosing the most qualified candidate for that position.

4. Don’t Get Caught in the Indefinite Leave Trap. In the Eighth Circuit, an employer may deny a request for leave if the leave is indefinite and the employee cannot provide a return date or a timeframe for when they will return. The EEOC, on the other hand, requires that an employer prove an undue hardship before denying an indefinite leave accommodation request. These types of situations should always be evaluated closely by both the employer and counsel prior to terminating the employee.

5. Tread Lightly if using a Maximum Leave Policy. Many employers have a maximum leave policy and terminate employees for exceeding the maximum amount of leave available under the policy (for instance if an employee takes a medical leave of absence and cannot return to work after six months they are automatically terminated). The EEOC has taken the position that these policies are a per se violation of the ADA. For more information on the EEOC’s position, see “EEOC And Inflexible Leave Of Absence Policies: A Hot Button Issue For 2013”. However, a federal appeals court recently rejected the EEOC’s position and concluded that these types of policies are not inherently discriminatory, but rather protect the rights of disabled employees. For more information on that decision, see “Maximum Leave Policy Found To Be Fair And Lawful” . Because of the EEOC’s position and the unknown position of other courts, employers should still be wary about such policies. Employers should still engage in the interactive process and discuss the possibility of additional leave with a disabled employee in the event the employee reaches the maximum leave under such a policy rather than enforcing automatic termination under such a policy.

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