Disability, Leave & Health Management Blog : Attorneys & Lawyers for Employer Legal Protections in Businesses Nationwide

Recall the incontinent court reporter. She had a steady assignment compatible with her medical condition until the chief judge required court reporters to rotate through all courtrooms.  In the lawsuit challenging the court reporter’s termination, the court held that rotating was an essential function of the court reporter’s job and because she could not do this with or without an accommodation, she was not a qualified individual with a disability. Gratzl v. Office of the Chief Judges of the 12th, 18th, 19th and 22nd Judicial Circuits (April 7, 2010).

Now consider the bridge worker for the Illinois Department of Transportation, Miller, who developed acrophobia, or fear of heights. Bridge workers have various responsibilities, some of which are performed at significant heights. Initially, the employer allowed other members of his team to do the bridge work at heights.  Assigned to change a bulb while standing on a bridge beam wearing a lifeline, Miller had a panic attack. IDOT denied his request that he be excused from working on bridge beams and other extreme places over 20-25 feet. When discharged for an unrelated reason, Miller sued, claiming that IDOT failed to accommodate his disability. The district court granted IDOT’s motion for summary judgment, holding that working at heights above 25 feet was an essential function of Miller’s job. The Seventh Circuit reversed and remanded the case for trial. Miller v. Illinois Dep’t of Transportation (May 10, 2011).

Why did the acrophobic bridge worker fare better than the incontinent court reporter? The key is how work was assigned. The court required all court reporters to rotate through all positions and the ability to do so was an essential function. But the bridge workers worked as a team, reassigning tasks among themselves according to abilities, preferences, and limitations. The court held that a reasonable jury could conclude that while some members of the bridge crew needed to be able to work at heights in exposed or extreme positions so that that bridge crew—as a unit—could do its job, each member of the bridge crew did not have to be able to do every task.

The message from this case is clear: if an employer believes that an employee’s ability to do all of the tasks involved in a position is essential, the employer should communicate this requirement, and then enforce it.  Conversely, if employees work as a team, it may not be essential that each member of the team be able to perform each assignment.

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Reversing summary judgment for the employer, the Second Circuit said that “in certain circumstances, an employer may have an obligation to assist in an employee’s commute” to work as a reasonable accommodation.  The Court cited its observation in an earlier decision that “there is nothing inherently unreasonable…in requiring an employer to furnish an otherwise qualified disabled employee with assistance related to her ability to get to work.” Nixon-Tinkelman v. NYC Dep’t of Health and Mental Hygiene (Aug. 10, 2011).

At least four other circuit courts have taken the opposite view and held that the commute is not part of the work environment that an employer is required to reasonably accommodate.  The EEOC also said in a 2001 informal discussion letter that “it is the employee’s responsibility to arrange how s/he will get to and from work” and that the ADA does not require an employer to provide commuting assistance as a form reasonable accommodation. 

The Second Circuit remanded the case and directed the district court to consider whether defendants could have reasonably accommodated plaintiff’s needs by transferring her back to her prior worksite or another closer location, allowing her to work from home, or providing a car or parking permit. The Court provided a non-exclusive list of factors for the district court to evaluate in making this determination. They included the number of employees employed by the defendant, the number and location of its offices, whether other available positions existed for which plaintiff showed that she was qualified, whether she could have been shifted to a more convenient office without unduly burdening the defendant’s operations, and the reasonableness of allowing her to work without on-site supervision.

Employers within the Second Circuit and in other Circuits which have not addressed the issue should be cautious when presented with a request for commuting assistance. While this conflict in the circuits may wend its way to the United States Supreme Court, that may take years and until then, the law of the circuit in which the case is pending applies.

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 The "law" or "lore" requiring employers to accommodate employees by excusing absence has reshaped employer attendance and productivity expectations.  Some say the law, as interpreted by the Equal Employment Opportunity Commission, goes too far and creates an elusive and unworkable standard for managing employee attendance and productivity.　

To assist our clients and contacts in separating "law" from "lore" when analyzing and making these accommodation decisions, we have prepared a two part Special Report on excusing absence as a reasonable accommodation under the ADA. Part 1, published in May 2010, dealt with "blocks of leave. and can be found here. We recently published Part 2, which deals with the unpredictable "day here, day there" absences. As you will see from the discussion in Part 2, the cases involving　 unpredictable "day here, day there" absences are more favorable to employers than the "leave limits" cases we discussed in Part 1.

We received many positive comments about Part 1. We look forward to your comments on Part 2.

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Recall the incontinent court reporter, hired as a control room specialist, a position compatible with her medical condition, but whose job changed when the chief judge decided to evenly distribute the workload, and required all court reporters to rotate through all courtrooms. In ADA parlance, the court changed the essential functions of the court reporter’s job. The court reporter did not claim that the court’s decision to reorganize had anything to do with her disability. When she rejected the accommodations offered her, the court terminated her employment, The Seventh Circuit affirmed summary judgment for the employer, holding that she was not a qualified individual with a disability because she was “unable to sit in the courtroom during proceedings without disrupting court.” The Seventh Circuit rejected her “circular” argument that was qualified because she was qualified for her previous job, which did not require rotating.

An employer’s ability to change the essential functions of an employee’s job “seems like a pretty big loophole [in the ADA],” according to the Workplace Prof Blog, commenting on this same case in a piece entitled "Reorganizing Away the Duty of Reasonable Accommodation." . The Prof opines that “[a]fter the ADAAA’s expansion of the definition of ‘disabled,’ employers will be looking for more ways to avoid the accommodation duty. This one seems tailor-made: change job descriptions and thus, essentially, eliminate disabled employees from any jobs they want—and they won’t be held liable for disability discrimination!”

So is the employer’s right to reorganize and change employees’ essential functions for reasons unrelated to any employee’s disability a “loophole” in the ADA? Webster defines “loophole” as “an ambiguity or omission in the text through which the intent of a statute, contract, or obligation may be evaded.” I vote “no” because the ADA was never intended to limit an employer’s ability to reorganize its operation for reasons unrelated to an employee’s disability. Despite this, the Workplace Prof Blog notes that “there seems something troubling” about the Seventh Circuit’s “endorsement of what is in effect, if not intent, an end run around the duty of accommodation.” “Something troubling” about an employer’s exercising a right for legitimate non-discriminatory reasons which affects all employees in the job description? A fundamental principle underlying our anti-discrimination laws is that employers must make decisions based on legitimate non-discriminatory reasons. To hold otherwise would require Webster to revise the definition of “discrimination.”

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The EEOC’s challenge to “inflexible” leave policies continued this week, as the agency announced that it had sued Princeton HealthCare System for failing to reasonably accommodate employees who needed medical leave. According to the EEOC press release, Princeton HealthCare "fires employees" who are not qualified for FMLA leave and refuses to grant leave beyond the 12 weeks allowed by the FMLA. The EEOC stated that Princeton HealthCare does not grant exceptions to these policies for qualified individuals with a disability who need additional leave as a reasonable accommodation. The release states that more than a dozen Princeton HealthCare employees with disabilities who requested a leave of absence as a reasonable accommodation were denied leave and fired. The case has been filed in the U.S. District Court for the District Court of New Jersey.

The Princeton HealthCare case is the latest in a growing line of cases the EEOC has brought in which the agency claims the employer has had an inflexible leave policy in violation of the ADA. In 2009, the EEOC brought a class action suit against an international package delivery company, claiming the company violated the ADA by rejecting requests for medical leave extensions beyond its 12-month leave policy.  Also in 2009, the EEOC settled a lawsuit in which the agency alleged that a national retailer was inflexible in its administration of leave policies for employees with work-related injuries.  The retailer paid $6.2 million (a “record-setting” amount, according to the EEOC) as part of a consent decree.

We have cautioned employers about the risks of having a “leave limits” policy in our Special Report on Excusing Absences as a Reasonable Accommodation under the ADA. Employers with a leave limits policy which does not allow for additional leave for disabled employees as a reasonable accommodation, bear the risk of being the subject of the next EEOC press release.  

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Sometimes it is unclear whether the employee is requesting leave that might be covered by the FMLA. This is not one of those situations. In Kobus v. The College of St. Scholastica, Inc., when the plaintiff told his supervisor in November 2006 that he would need to take time off for “stress and anxiety,” the supervisor gave him FMLA paperwork and told him he could apply for leave. The plaintiff put the papers in his drawer without reading them, and told his supervisor he “didn’t’ need any leave. Not just FMLA; any leave” because he thought he “could handle” matters.

A few weeks later, the employer disciplined plaintiff for excessive absenteeism. In January 2007, in response to the plaintiff’s comment that he would need “mental health leave,” the supervisor told him again about the FMLA and that he would need to have a doctor sign the paperwork. The employee responded that he did not have a doctor, and asked “is there any other way I can go.”

Later that afternoon, the supervisor told him “there was nothing available for [him],” and offered him two weeks’ severance pay if he resigned. The next day, he submitted a letter of resignation.

The Eight Circuit rejected the plaintiff’s claim that the College unlawfully denied him FMLA leave, holding that the plaintiff had “failed to adequately state an intent to take FMLA leave” and that “[w]hen an employee is made aware of the procedures necessary to obtain FMLA leave and chooses not to seek FMLA protection, the employer does not violate the FMLA by terminating the employee for excessive absenteeism.” The court rejected the plaintiff’s argument that the College’s FMLA policy was unclear because it said medical certification “may” be required, as opposed to “must be submitted.” 

The Eighth Circuit rejected the plaintiff’s ADA claim as well, holding that the plaintiff did not request an accommodation, and rejecting his reliance on the EEOC’s ADA Enforcement Guidance that a request for time off because an employee is “depressed and stressed” is sufficient to put the employer on notice that the employee is requesting a reasonable accommodation. “None of our prior ADA notice cases cited the Enforcement Guidance as controlling. We apply the requirement in the regulations that an employee must “inform the employer that an accommodation is needed.”

This case illustrates the benefits of having supervisors trained to recognize potential requests for FMLA leave. The supervisor’s twice offering the plaintiff FMLA leave made rejecting the FMLA claim almost a foregone conclusion. The Court’s unwillingness to follow the EEOC Enforcement Guidance is a reminder that the Guidance does not have the force of law and does not expand the scope of the ADA itself.  

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 Many reasonable accommodation cases are resolved in court but a court is not usually the defendant. But such was the case when a court reporter sued the Office of the Chief Judges of various Illinois circuit courts for failing to accommodate her incontinence. 

In Gratzl v Office of the Chief Judges of the 12^th, 18^th, 19^th and 22^nd Judicial Circuits, decided on April 7, 2010, the plaintiff had suffered from incontinence since approximately 1991. When the OCJ hired her in 2001, they agreed in writing that she would work in the control room only, a position which was compatible with her medical condition. Five years later, the chief judge decided that, to evenly distribute the workload, all court reporters must rotate through all courtrooms, including the control room.

The plaintiff asked that she be allowed to continue working in the control room only as an accommodation. Her doctor told the court that she needed access to a restroom on a moment’s notice. In response, the court proposed that she not be assigned to any courtrooms in which a trial was scheduled or to juvenile courtrooms, which were farther from the restrooms, and that she use a “high sign” to signal the judge that she needed a break. Plaintiff rejected all of these  offers and continued to request to work in the control room only, arguing that such an assignment was feasible because she had had it previously, that other courts have specialists assigned to the control room only, and that her using the “high sign” would be embarrassing.

The Seventh Circuit affirmed summary judgment for the OCJ on plaintiff’s ADA and Rehabilitation Act claims, holding that she was not a qualified individual with a disability because she was “unable to sit in the courtroom during proceedings without disrupting court”  and that her “control room only” request was not a request for a reasonable accommodation.  The court rejected the plaintiff’s “circular” argument that she is qualified for her current job because she was qualified for her previous job with different essential functions. The court said an employer need not maintain a position or structure that, for legitimate reasons, it no longer believes is appropriate and may change an employee’s essential functions.

This case illustrates numerous “reasonable accommodation” principles employers must master.  Presented with a request for a reasonable accommodation, the court engaged appropriately in the “interactive dialogue” to explore options, and offered a series of accommodations which would have enabled plaintiff to perform her responsibilities despite her medical condition. A plaintiff who rejects such accommodations and merely insists on her preferred accommodation is not a qualified individual with a disability and loses the protection of the ADA.

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