Must an employer bend its rule prohibiting an employee with discipline from transferring to another position as a reasonable accommodation if the request to transfer is due to a disability? 

We posted recently about a case where an employer denied an employee’s request to telecommute or relocate his office for a medical reason because he had a final warning for poor performance. The court there said “This explanation is troubling, since denial of an accommodation on the ground that a non-accommodated, disabled employee is experiencing performance inadequacies turns the rational for the ADA’s rule of reasonable accommodation on its head.” Goonan v. Federal Reserve Bank of New York, (S.D.N.Y. January 7, 2013).

In a more recent case, the plaintiff had a final warning for poor attendance and asked to transfer to the second shift for medical reasons. The employer denied the request. The court did not address whether the employer’s rule prohibiting an employee on final warning from transferring must yield to the ADA because the plaintiff failed to establish there was an opening on the second shift.  Also, the court noted that since the production requirements on both shifts were the same, this was really a request to work on a shift with less supervision, which is not a request for a reasonable accommodation. Beair v. Summit Polymers (E.D. Ky Aug 13, 2013).

So the question is well-defined–may an employer apply its consistently-enforced policy prohibiting an employee with discipline in his/her file from transferring where an employee requests a transfer for reasons related to a disability?  We know employers must use caution when dealing with a transfer request in these circumstances. But we must await an answer from a court as to whether the transfer limitation must yield to the ADA.
 

In FMLA "caring for" cases, there is usually no dispute that the cared-for relative has a serious health condition. We have posted here, here and here about such cases.

But in Mezu v. Morgan State University, (D.Md July 29, 2013), that was precisely the issue. The plaintiff claimed her employer interfered with her FMLA rights by its delay in responding to, and denial of, her FMLA leave request to care for her daughter following the daughter’s emergency brain surgery for a ruptured brain aneurysm. The employer claimed the plaintiff was not entitled to FMLA leave because the daughter did not have a serious health condition.

Upon discharge from the hospital, the daughter needed assistance with numerous activities of daily living. The decision suggests the daughter stayed at her parents’ home rather than at her marital home with her husband and child after discharge from the hospital.

In support of its position that the daughter did not have a serious health condition, the mom’s employer noted that a month after surgery, the daughter returned to her marital home and, four days later, attended her parents’ anniversary celebration, and then stayed at the parents’ home for six days to assist in preparing for her sister’s wedding. The employer also relied on a doctor’s note about six weeks after the daughter’s discharge from the hospital stating that the daughter was able to drive 

The court denied the motions for summary judgment which had been filed by both parties.  The court noted that while there may be disputes of fact as to exactly how long the daughter experienced a serious health condition that made her incapable of self-care, “at least for a significant period of time after the surgery, she needed her mother’s assistance.” 

The Court also noted that her employer’s “delay in effectuating the [FMLA] leave” by not timely advising her of her incomplete healthcare certification may have violated the FMLA and that her employer’s denial of her leave may have violated the FMLA regulation which prohibits an employer from “discouraging an employee from using [FMLA] leave.”
 

An employee who did not follow his employer’s call-in requirements under its attendance policy or provide an appropriate medical certification supporting his need for leave under the FMLA has failed to establish a claim for interference with his FMLA rights, according to the Sixth Circuit. Srouder, et al. v. Dana Light Axle Mfg, LLC,, (6th Cir. Aug. 7, 2013). Affirming summary judgment for the employer, the Court ruled that an employer may enforce its customary notice and attendance procedures against an employee claiming FMLA-protected leave, unless unusual circumstances justify the employee’s failure to comply with the requirements. For additional information concerning this case, click here.
 

An employee who twice failed to complete a substance abuse treatment program was not protected by either the ADA or FMLA, according to the Fifth Circuit. Shirley v. Precision Castparts et al (5th Cir. August 12, 2013).  The employer terminated the employee for leaving a treatment program prior to being properly discharged, as required by its drug free workplace policy.

The plaintiff was not protected by the ADA because he was a “current user of illegal drugs,” according to the court. An individual who has used illegal drugs “in the weeks (or even months) preceding the adverse employment action” may be deemed “currently engaging” in that use, the court explained.  This is consistent with a Tenth Circuit decision we posted about previously. See “Former Drug User May Be Current Drug User Under the ADA.”

The court also rejected the plaintiff’s claim that he was entitled to the ADA’s safe harbor for individuals who have successfully completed a supervised rehabilitation program and is no longer engaging in the illegal use of drugs. In rejecting this argument, the court held that “the mere fact that an employee has entered a rehabilitation program does not automatically bring that employee within the safe harbor’s protection.” The court said that only individuals “who have been drug-free for a significant period of time” can obtain protection from the safe harbor. 

The court also rejected the plaintiff’s claim that his employer violated the FMLA by failing to reinstate him after his stint in rehabilitation. The court explained that the right to reinstatement is not guaranteed, that the plaintiff was terminated for violating the company’s drug-free workplace policy, and to conclude that the plaintiff was denied an FMLA right to which he was entitled “strains credulity to the breaking point.”
 

Minnesota has amended its Minnesota Parenting Leave Act to give employees the right to use sick leave for an expanded group of family members in addition to the employee’s child. Effective August 1, 2013, an employee may use personal sick leave benefits for absences due to an illness of or injury to the employee’s “adult child, spouse, sibling, parent, grandparent , or stepparent.”  S.F. No. 840. For additional information about this amendment, click here.
 

A lab worker with health problems as a result of her work with a solvent submitted the following request for an accommodation: “Avoid any type of work where she would have exposure to organic solvents. Transfer to another line of work. Avoidance of irritants.”

The employer denied the request but offered the plaintiff a full face respirator that would have protected her from exposure to solvents.  She wore the respirator six or seven times then stopped because it led to her having claustrophobia and panic attacks. The employer then offered the employee a partial face respirator but the plaintiff refused to even give it a try. As her note indicated, she sought a transfer to another line of work. 

In affirming summary judgment for the employer, the Court held that while the offer of a full-face respirator was not a reasonable accommodation because of its effects on the plaintiff, the offer of a partial face respirator was. Due to the plaintiff’s refusal to try the partial face respirator, she could not perform the essential functions of her position and was not a qualified individual with a disability.  Yovtcheva v. City of Philadelphia (3rd Cir. May 7, 2013).

When an employee requests a job transfer as an accommodation, an employer should determine first if there is an accommodation that allows the employee to remain in his or her regular job. If there is, there is no need to get to the transfer, i.e., "accommodation of last resort,” analysis. As the Yovtcheva case illustrates, this is so even if the employee rejects the accommodation for his or her regular job.

Appellate courts in two neighboring states—Kentucky and West Virginia—have reached different conclusions on whether obesity is a disability.

In the Kentucky case, the plaintiff, who was approximately five feet four inches in height and weighed four hundred twenty-five pounds, claimed that her employer had unlawfully discriminated against her due to her morbid obesity in violation of the state law prohibiting disability discrimination.  An individual is morbidly obese when he or she is either double the normal weight or at least 100 pounds more than normal weight.  The trial court had granted summary judgment to the employer. Reversing that decision, the appellate court concluded that the plaintiff’s morbid obesity was a disability. The court noted that a morbidly obese person is substantially limited in the major life activity of caring for oneself, noting that “a simple activity such as tying one’s shoes is complicated and difficult due to the condition.”  Pennington v. Wagner’s Pharmacy, Inc.  (KY Ct. of App., July 12, 2013).

In the West Virginia case, the plaintiff, a blackjack dealer who weighed approximately 540 pounds, also  claimed he was terminated due to his morbid obesity in violation of the state law prohibiting disability discrimination.  The West Virginia Supreme Court of Appeals held that obesity was not a per se disability under the state statute and that the plaintiff did not provide any evidence that his obesity substantially limited him in any major life activity. The court affirmed summary judgment for the employer.  Andrew O. v.  Racing Corporation of West Virginia d/b/a Mardi Gras Casino and Resort (W.Va. Sup. Ct. App., June 24, 2013).

The disagreement about obesity extends beyond these two courts. Earlier this year, the American Medical Association officially recognized obesity as a disease. According to a New York Times report, in adopting this position, the AMA rejected a committee recommendation that obesity not be considered a disease.
 

The Supreme Court’s decision in U.S. v. Windsor adds to employer obligations under the FMLA by expanding the group of individuals who may be a “spouse” for FMLA purposes.  At issue in Windsor was whether Section 3 of DOMA violated the Fifth Amendment’s Equal Protection Clause as applied to the Federal Government.  Section 3 of DOMA states that the meaning of “spouse” in any federal law or regulation “refers only to a person of the opposite sex who is a husband or a wife.” Section 3 of DOMA had left no doubt that the definition of “spouse” under the FMLA could not possibly have included a same-sex spouse. Now that the Supreme Court has found Section 3 to be unconstitutional, that prohibition went with it and employers must now determine whether an employee’s same-sex spouse is a “spouse” for FMLA purposes.  

For additional information on making that determination, click here.
 

A terminated sheriff’s failure to refute a psychologist’s claim that he had lingering psychological deficits from a stroke that would interfere with his ability to perform his job led the Tenth Circuit Court of Appeals to affirm summary judgment for the County on the sheriff’s ADA claims. 

The sheriff’s doctor had cleared him to return to work following recovery from a stroke. After he had returned, co-workers reported concerns about his behavior, such as that he became flustered at a traffic stop because he could not remember a word, that he would lose his temper and that he left work at least once because of blood pressure problems.

The County ordered the sheriff to have an fitness for duty exam from a neurologist; the neurologist cleared him to return to work “from a neurological standpoint” but suggested that his cognitive functioning be investigated.  A psychologist evaluated his cognitive functioning and concluded that the plaintiff’s symptoms of “mild to moderate fatigue, episodes of lightheadedness and episodes of emotional disinhibition (weeping)” could interfere with the performance of some of his patrol officer duties and recommended that he be placed in a low-stress position, one in which he did not have regular contact with the public.

Relying on the psychologist’s report, the County terminated the sheriff’s employment, stating that it did not have any available position for which he had been medically cleared to perform.  The Court held that the plaintiff was unable to establish that he could perform the essential functions of his job either with or without an accommodation because he failed to present any evidence contradicting the psychologist’s assessment that he should not be placed in a position here he could be exposed extreme stress, a restriction which disqualified him from patrol duty. Koessel v. Sublette County Sheriff’s Department et al (10th Cir. May 14, 2013).

 

An essential function of full time work is that an employee actually work full time!  The U.S. Court of Appeals for the Sixth Circuit recently concluded that an individual who requested that she be allowed to continue working part time did not request a reasonable accommodation under the ADA.  White v. Standard Insurance Co., (6th Cir. June 28, 2013). The employer established that full time work was an essential function of the position: the employer had never employed anyone in the employee’s particular position on a part-time basis; the written job description stated that the position was full time; and the plaintiff admitted during her deposition that she was unable to complete the job requirements in a four-hour shift.  Other employees had to work overtime to cover her work.

The plaintiff had a back injury in September 2007 and took a leave through December 2007.  In mid-December, she returned to work part-time for four hours a day but, beginning in mid-January, she had trouble working even four hours.  She did not work or left early 6 days in January and then left early on February 6 and called off on February 7.  As a result, the employer terminated her employment but held the position open until the end of March in case she could return to work.

The court concluded that a request to continue working part time was not a request for a reasonable accommodation under the ADA because the plaintiff was not able to perform the essential functions of the job while working part time and the employer was not required to create a new part time position.

This case reminds employers how important a well-drafted job description can be.  It also reaffirms the necessity of the individualized inquiry.  The particular facts of each case will determine whether an accommodation is reasonable under the particular circumstances.