It’s a Hard Knock Life for ADA Claimant at the First Circuit

A manager for a Burger King franchise in Puerto Rico who requested a fixed work schedule due to posttraumatic stress disorder (PTSD) that he developed after being attacked at gunpoint was not a “qualified individual” under the Americans with Disabilities Act (ADA), the First Circuit Court of Appeals recently held. Characterizing its opinion in Sepulveda-Vargas v. Caribbean Restaurants, LLC, as a “lesson straight out of the school of hard knocks,” the Court found that being able to work rotating shifts was an essential function of the manager’s job and his inability to do so barred his failure to accommodate claim.

The manager was attacked in 2011 while attempting to make a bank deposit on behalf of his employer, Caribbean. He suffered from PTSD and depression after the attack and, in response to these diagnoses, requested to work a fixed schedule. Although Caribbean initially granted the request, it later told the manager that he would have to go back to rotating shifts. The manager resigned in 2013 and then sued Caribbean, claiming that they failed to accommodate his disability by not permanently providing him with a fixed schedule. The court granted summary judgment in favor of Caribbean and the manager appealed.

The issue on appeal was whether, in light of the manager’s request to work a fixed schedule, he was still qualified to perform the essential job functions that Caribbean required of its managers. The First Circuit acknowledged that identifying essential job functions is a fact-specific exercise, but found there was no dispute in this case that the ability to work rotating shifts was an essential function of the manager’s job. Caribbean explained, and the manager conceded, that rotating shifts were necessary for the equal distribution of work among managers, and the manager further admitted during his deposition that rotating shifts was a responsibility he shared in common with other managers during his employment with Caribbean. The Court also pointed to Caribbean’s hiring materials, including the manager’s signed job application, which made clear that managerial employees had to be able to work different shifts.

Although the manager pointed out that Caribbean had initially granted his request for a fixed schedule, the Court found that Caribbean’s willingness to do so on a temporary basis was not a concession that rotating shifts was a non-essential function. Consistent with decisions from other federal courts, the Court found that to conclude otherwise would unfairly punish employers for doing more than the ADA requires.

Once an Accommodation, Always an Accommodation?

A parts clerk suffers a stroke. Following the stroke, the clerk returns to work without restrictions but still has difficulty moving his left side. The clerk, however, continues to receive rehab and all parties expect that his condition will improve. Based on that expectation, the clerk’s supervisors tell him that they will accommodate him as best they can as long as he can reasonably perform most of his job, which happens to include being able to lift 50 pounds. Over the next 15 months, the clerk has difficulty completing all of his tasks in a safe and timely manner, but his employer elects not to reprimand him in light of his full release and the expectation that he will continue to improve. The employee does not improve, though, and so the employer offers the clerk a job transfer. The employee accepts but fails to adjust to the new position, and the employer terminates his employment. The clerk then sues claiming that, because the employer accommodated him for 15 months without complaint, it was obligated to continue doing so.

The question is: Is he correct?

A federal district court in North Carolina recently tackled this question and—based on the specific facts of the case—answered it with a “no.”

In Moore v. Wal-Mart Stores East, LP, the court noted that, even after 15 months, the clerk was unable to perform the essential functions of his job with or without a reasonable accommodation. He could not, for example, lift more than 20 pounds or safely climb ladders on his own and could only do so with assistance from others, which the court noted was unreasonable because it effectively reallocated the job’s essential functions to others.

As for the clerk’s claim that the employer was obligated to continue providing the accommodation it had given him for 15 months, the court found that the employer was not required to maintain a diminished level of exertion indefinitely. Although the employer had accommodated the clerk by allowing him to resume working while only performing certain functions, there was no legal duty to create a “permanent light-duty position that does not otherwise exist.”

According to the court, it could not punish the employer by deeming it to have “conceded the reasonableness of so far-reaching an accommodation.” Otherwise, it would discourage employers “from doing precisely what was done here, which was to temporarily lessen the physical requirements of a job in hopes that the employee’s functional capacity would be restored.” That result, said the court, would clearly be at odds with the purpose of the Americans with Disabilities Act (ADA).

Federal Court Finds Employee’s Explanation for Failed Drug Test Insufficient to Provide Notice of a Disability

Most employers are well aware that, under state and federal disability laws, an employee with a disability is entitled to reasonable accommodations in the workplace.  What can sometimes be less clear for employers is determining at what point the obligation to provide a reasonable accommodation arises.  Not surprisingly, the answer often depends on the facts.

As a case in point, a federal district court recently held that an employee’s disclosure that he was taking oxycodone for his back pain was not sufficient to put the employer on notice that he had a disability or that he required an accommodation.  Angel v. Lisbon Valley Mining Co., LLC (D. Utah, Nov. 23, 2015).  The employee disclosed that he was taking oxycodone after he had failed a drug test. Although the employee told human resources that the medication was for a back impairment and provided them a copy of his prescription along with a physician’s note, the court found neither the prescription nor the doctor’s note was sufficient to notify the employer that he was claiming a disability or asking for an accommodation.  In this case, the court held that the employer’s mere awareness of the employee’s physical condition (i.e. back pain) was insufficient to show that it was aware of an alleged disability or a request for accommodation.

Although it is difficult to generalize from the facts of a particular case, the outcome in Angel nonetheless confirms that the duty to provide a reasonable accommodation is triggered only after an employee has put the employer on notice of a disability and a desire for an accommodation. Although an employee’s accommodation request can be in “plain English” and does not need to use any special words, it must still be sufficient to notify the employer that the employee needs a modification at work and that the modification is related to a medical condition.

When Is Telecommuting a Reasonable Accommodation Under the ADA?

Earlier this month, the Sixth Circuit Court of Appeals shared its perspective on this question and held that telecommuting was not a reasonable accommodation for an employee where her essential job duties required regular and frequent in-person contact with suppliers and customers.  In some respects, the court’s conclusion that telecommuting may not be appropriate for jobs requiring regular physical attendance is rather unremarkable.  As the use of telecommuting rises, however, the decision’s common-sense approach to the issue is likely to have a lasting impact.

The employee in the case was a resale buyer who had a severe case of irritable bowel syndrome, which lasted for several years and caused her to be increasingly absent as the years progressed.  Her employer, Ford Motor Company, worked with her during that time to accommodate her condition, including several attempts to accommodate a telecommuting schedule.  Over time, however, her job performance continued to deteriorate.  At one point, she requested to telecommute four days per week.  Ford declined the request but offered other accommodations, including relocating her desk closer to a bathroom.  The employee did not accept the alternative accommodations and Ford later terminated her.

The Equal Employment Opportunity Commission subsequently sued Ford, arguing that the employee’s request for a four-day telecommuting schedule was a reasonable accommodation and that Ford’s denial of the request violated the ADA.  The Sixth Circuit Court of Appeals disagreed. Relying on a “common-sense” approach, the court focused on the highly interactive nature of the employee’s position and found that regular, in-person attendance was an essential function of her job. Although the ADA requires employers to provide reasonable accommodations to qualified employees with disabilities, the court found that the employee in this case was not “qualified” where she could not consistently be on site to perform her job.  Providing a telecommuting accommodation would not have been reasonable because it would not have allowed her to perform the essential interactive duties of her job.

The Sixth Circuit’s decision does not go so far as to hold that telecommuting can never qualify as a reasonable accommodation.  For positions that do not require a high degree of interaction with customers or staff, or that can be performed effectively from a remote location through the use of technology, telecommuting very well may offer a viable accommodation.  Employers should therefore continue to engage with employees requesting telecommuting as an accommodation to determine whether, under the particular facts, the request can reasonably be accommodated.

Does a Request for Disability Benefits Qualify as a Request for an Accommodation of Leave Under the ADA?

Last month, the Sixth Circuit Court of Appeals answered this question in the negative and found that an employee’s request for long-term disability benefits did not amount to a request for a reasonable accommodation in the form of leave.  As a result, the Sixth Circuit held that the employee’s failure-to-accommodate claim under the ADA failed where he could not point to any other evidence showing that he actually requested leave as a reasonable accommodation.

The employee in this case, Judge v. Landscape Forms, Inc., injured his arm while working at home.  The injury required surgery and the employee, Judge, was told by his doctor that the recovery time would be approximately four to six months.  In May 2011, Judge requested and was approved for FMLA leave until early August 2011.   During his leave, he also applied and was approved for long-term disability benefits beginning in July 2011.

Shortly before he was due to return to work, Judge informed Landscape Forms that he could not yet use his arm and that he would need six weeks of therapy.  He provided Landscape Forms a set of work restrictions, but he did not follow up or return to work after Landscape Forms asked for more clarification regarding the restrictions.  In late September 2011, Landscape Forms contacted Judge seeking information on his work restrictions.  Judge responded by faxing a note from his doctor with new work restrictions, but the note did not include any information as to Judge’s estimated date of recovery.  After receiving the doctor’s note, Landscape Forms terminated Judge on the grounds that it needed to maintain staffing levels and could not leave his position open indefinitely.   Judge was subsequently cleared to return to work without restrictions in November 2011.

Judge claimed that Landscape Forms discriminated against him and failed to accommodate his disability by not granting him leave until mid-November 2011.  The key issue for the Sixth Circuit was whether Judge actually requested leave as an accommodation and, if he did, whether the request was reasonable.  The court acknowledged that there is no “bright-line” test to determine when an employee’s request is sufficiently clear to qualify as a request for an accommodation.  However, on the facts of this case, the court found there was no evidence that Judge had ever made any statement that could be construed as a request for leave until mid-November 2011.  Although Judge argued that his request for long-term disability benefits constituted a request for an accommodation of leave, the Sixth Circuit disagreed.  Because Judge’s disability claim was processed through a third-party, which did not provide any information to Landscape Forms about the claim other than its approval, the Sixth Circuit found the request was insufficient to put Landscape Forms on notice that he was requesting leave as a reasonable accommodation or that he was seeking leave until mid-November 2011.

Given its finding that Judge never actually asked for additional leave as an accommodation, the Sixth Circuit did not reach the issue of whether the request would have been reasonable if properly made.  Had it reached this issue, the court might have had an opportunity, like the Tenth Circuit’s recent decision in Hwang v. Kansas State University, to provide additional commentary on when a request for additional leave is reasonable under the ADA, and when it is not.  Obviously, this additional commentary will have to wait for another occasion.

Inflexible Leave Policies and the EEOC

The last several years have seen the Equal Employment Opportunity Commission (“EEOC”) take an aggressive stance on inflexible leave policies.  According to the EEOC, these policies – which subject employees to termination after a maximum period of leave – are unlawful because they do not consider whether an additional period of leave might be a reasonable accommodation for individuals with a disability.  The EEOC has achieved considerable success pursuing class-action lawsuits against companies that maintain fixed leave policies, including lawsuits against Supervalu, Inc. and Sears, Roebuck & Co. that settled to the tune of $3.2 million and $6.2 million, respectively.
 
In May, however, the EEOC’s smooth sailing hit some headwinds when the Tenth Circuit Court of Appeals issued its decision in Hwang v. Kansas State University finding that a state university lawfully terminated a professor after she had exhausted her leave under a six-month maximum leave policy.  Although the court readily acknowledged that the professor was a capable teacher, it noted that the professor, by her own admission, had been unable to perform any duties of her position for six months.  Given the length of the absence, the court found it difficult to conceive how an absence so long “could be consistent with discharging the essential functions of most any job in the national economy today.”  And, even if it were, the court concluded that it was still “difficult to conceive when requiring so much latitude from an employer might qualify as a reasonable accommodation.”

In reaching its conclusion, the court briefly addressed the EEOC’s guidance that employers must modify a “no-fault” leave policy if an employee with a disability needs additional unpaid leave as a reasonable accommodation.  According to the court, the EEOC’s guidance did not address the preliminary question it was trying to tackle, which was:  when is a modification to an inflexible leave policy a reasonable accommodation?  Without giving a definitive answer to that question, the court found that, in this particular case, granting an additional period of unpaid leave beyond six months was simply not reasonable.

Although the Hwang decision has the potential to turn the tide on the EEOC, the agency has not sent out any signals that it sees muddy waters ahead.  Just one month after Hwang, the EEOC announced that it had reached another settlement with Princeton HealthCare Systems for $1.35 million, resolving claims concerning PHCS’s 12-week leave policy.  In its press release, the EEOC noted that “addressing emerging and developing issues under the ADA is one of six national priorities” identified in its Strategic Enforcement Plan.  Whether the EEOC chooses to clarify its position through additional guidance, or through further litigation, remains to be seen.