To what extent may an employer deny a requested accommodation because of on an employee’s poor performance which is caused by a disability? 

The Federal Reserve Bank of New York denied an employee’s request to telecommute or to relocate his office to a different Fed building because the employee had been rated as “below standards” in a recent evaluation. The employee made the request because his department had moved from two blocks from Ground Zero to a building overlooking Ground Zero. On 9/11, the plaintiff had been trapped in his office and “believed he was going to die,” the court said, citing plaintiff’s complaint.   In January 2010, plaintiff’s department moved to the 23rd floor at 3 World Financial Center, which overlooks Ground Zero. According to plaintiff’s complaint, he began having flashbacks to 9/11, developed difficulty sleeping and concentrating and became anxious and depressed to the point that he had suicidal thoughts. During that period, he received a “below standard” rating for the first time. 

The Fed denied his request based on his poor performance and need for supervision. The court stated: “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). The court quoted from Borkowski v. Valley Central Sch. Dist., 63 F.3d 131 (2d Cir. 1995), that “failure to consider reasonable accommodations for disabilities which lead to poor performance which result in termination for performance deficiencies resulting from the disabilities amounts to a discharge solely because of the disabilities.”  The court added somewhat cryptically: “Poor performance begs the question, but does not answer it.” The court denied the employer’s motion to dismiss the plaintiff’s claim.

 

Some employers have policies restricting employees with performance deficiencies from bidding on or transferring to another position. When the request to bid or transfer comes from an employee with performance deficiencies due to a disability, and is a request for a reasonable accommodation, those policies can be “troubling,” to quote the Goonan court.

        

“It depends,” according to the U.S. Department of  Justice. “Some individuals with food allergies have a disability as defined by the ADA–particularly those with more significant or severe responses to certain foods. This would include individuals with celiac disease and others who have autoimmune response to certain foods, the symptoms of which may include difficulty swallowing and breathing, asthma, or anaphylactic shock,” the DOJ explained.

The discussion about food allergies is in the DOJ’s “Questions and Answers” concerning its recent settlement of a Title III ADA complaint with Lesley University.  In that settlement, the university agreed to, among other things, provide gluten-free and allergen-free food options in its dining hall to enable students with food allergies to use its mandatory food plan.

Anticipating the question of whether the ADA requires all public accommodations that serve food, such as restaurants, to serve gluten-free or allergen-free food, the DOJ said the ADA does not do so. “Because the [Lesley University] meal plan was mandatory for all students living on campus, the ADA required that the University make reasonable modifications to the plan to accommodate students with celiac disease and other food allergies. This is different than the ADA’s obligation for restaurants that serve the general public,” the DOJ explained.  

A parent otherwise eligible for FMLA leave can use that leave to care for a child 18 years of age or older, if that child (1) has a “disability” under the ADA; (2) is incapable of self-care due to that disability; (3) has a “serious health condition”  under the FMLA; and (4) needs care due to the serious health condition, according to the U.S. Department of Labor Wage and Hour Division’s Administrator’s Interpretation No. 2013-1 (January 14, 2013). The interpretation also states that whether the adult child’s disability began before or after the age of 18 is irrelevant.

The DOL’s “clarification” discusses the four eligibility criteria. Due to the broadening of the ADA’s definition of “disability,” many more adult children now have a “disability,” and many more parents may be eligible for FMLA leave to care for them. A recurring issue is whether an employee is entitled to “grandparent leave” when the employee’s daughter has a baby. The clarification reiterates that pregnancy is not a disability under the ADA, though “pregnancy-related impairments, such as gestational diabetes” may be.

An adult child is “incapable of self care” if the child requires “active assistance or supervision to provide daily self-care” in three or more of the ‘activities of daily living’ (ADLs) or ‘instrumental activities of daily living’ (IADLs). ADLs include caring for one’s grooming and hygiene, bathing, dressing and eating. IADLs include “cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, using telephones and directories, [and] using a post office….” 

The adult child’s medical condition must be both a “disability” under the ADA and a “serious health condition” under the FMLA. A chronic medical condition will likely meet both definitions. However, since “minor and transitory” impairments are not disabilities under the ADA, FMLA leave would not be available to the parent of an adult child with such an impairment.

The requirement that the parent is “needed to care” for the adult child can often present the most challenging issues. When the parent is needed to assist with ADLs or IADLs, the need for leave is often clear. However, that need is more amorphous and subjective when it is to “provid[] psychological comfort and reassurance that would be beneficial to a son or daughter with a serious health condition who is receiving inpatient or home care.”

For additional discussion of the DOL’s clarification, click here. The DOL has also issued a series of FAQ’s concerning the use of FMLA leave to care for adult children. Those FAQs may be accessed here.

 

Is a deaf person qualified to be a wave pool lifeguard? Before answering, consider that the lifeguard holding the record for most “saves”–more than 900–is Leroy Columbo, who was a deaf man.

In Keith v. County of Oakland (6h Cir. January 10, 2013), the plaintiff, deaf since birth, had completed the County’s lifeguard training programs with the assistance of an American Sign Language interpreter to communicate verbal instruction, applied for a position with the County as a wave pool lifeguard, and was offered a position, subject to passing a medical examination from a County-appointed physician.

According to the court, at the medical examination, after reviewing the plaintiff’s medical history, the physician stated: "He’s deaf; he can’t be a lifeguard." When Keith’s mom questioned this, the physician responded, again according to the court: "Well, I have to. I have a house and three sons to think about. If something happens, they’re not going to sue you, they’re going to sue the county, they’re going to come after me."

Keith was not hired and he sued. The district court held that he was not “otherwise qualified” because he was unable to show that he could perform the essential communication functions of a lifeguard, with or without accommodation and granted summary judgment to the County. The Sixth Circuit reversed this holding because it found that Keith had shown that a reasonable accommodation was possible and that questions of fact remain as to whether Keith is “otherwise qualified.”

The court noted that the most compelling evidence to suggest that a deaf individual may be "otherwise qualified" is the fact that the American Red Cross certifies deaf lifeguards and that Gallaudet University, a university dedicated to serving the needs of deaf individuals, has a lifeguard certification program. And, of course, there’s Leroy Columbo.

There was this one, this one, and now yet another multi-million dollar settlement with the EEOC involving allegations that an employer had an inflexible leave policy. The EEOC announced that Dillard’s had agreed to pay $2 million as part of a consent decree to resolve the agency’s allegations relating to the company’s medical inquiries and a “maximum-leave policy limiting the amount of health-related leave an employee could take and, in practice, [] not regularly engag[ing] in an interactive process with employees to determine if more leave was allowed under the ADA as an accommodation of the employee’s disability.”

According to the EEOC, the consent decree  “requires that Dillard’s hire a consultant with ADA experience to review and revise company policies as appropriate,”  implement “effective training” for supervisors and staff on the ADA and, develop a centralized tracking system for employee complaints involving disability discrimination.   

 

We haveposted previously about the ADA’s “accommodation of last resort”: when an employee cannot perform the essential functions of his or her position, with or without an accommodation, due to a disability, an employer must consider transferring the employee to a vacant lateral or lower position for which the employee is qualified.

Whether a position is “vacant” is usually not in dispute. But in Wardia v. Justice and Public Safety Cabinet Department of Juvenile Justice; Campbell County Regional Justice Department of Corrections (6th Cir. January 3, 2013),  that was an issue the Sixth Circuit grappled with.  

While the plaintiff, a “youth worker,” was recuperating from an injury, the employer assigned him temporarily to the control room position. This assignment lasted more than a year. The employer ended it when the employee’s health care provider indicated that the employee’s restrictions were permanent.

When the control room position is not filled by a recuperating employee, youth workers rotate through the position, which is a less stressful job, and “provides a break from dealing directly with juveniles, a break that potentially improves overall staff performance," according to the court.

The employee requested that the control room position be made his regular position as a reasonable accommodation. The Sixth Circuit affirmed the district court’s rejection of this claim.

"Employers cannot be required to convert either rotating or temporary positions into permanent positions," the court said. The permanent assignment of the control room position "would essentially require the creation of a new position rather than reassignment to an otherwise existing vacant one," the court noted. It would shift essential job functions to others who could not rotate off their regular assignment as often, “leaving them with [plaintiff’s] share of physical restraints and direct juvenile contact,” the court added.

The court also said that to require the employer to convert the temporary light duty position to a permanent position “would actually frustrate the purposes of the ADA–if employers are locked into extending temp positions for injured workers on a permanent basis they might well be less inclined to permit such an arrangement in the first place.”

We have posted previously that courts are willing to consider the impact on other employees of a plaintiff’s request for an accommodation. In this case also, the Sixth Circuit considered the fact that the plaintiff’s co-workers would not be rotating through the easier position, and would be picking up the plaintiff’s responsibilities in its “undue hardship” analysis.

Is vegan-ism a moral and ethical belief or a social philosophy or dietary preference, and what does this question have to do with disability, health and leave management at work?

It starts with the flu and, in particular, a hospital’s requirement that all employees get a flu shot. Some health care employers have such a requirement to protect their patients. A customer service representative refused the vaccine because she is a vegan and the vaccine was grown in chicken eggs. She also claimed that the hospital could accommodate her by not requiring her to get the vaccine, as it had done in the past.

The hospital terminated her employment and she sued, claiming that because her vegan practices were a "moral and ethical belief which is sincerely held with the strength of traditional religious views," her termination was religious discrimination. She submitted an essay entitled "The Biblical Basis of Vegan-ism" in support of her argument.

The federal district court in Ohio denied the hospital’s motion to dismiss the religious discrimination claims but told the hospital the evidence it would need to justify its mandatory vaccination program. The relevant evidence would be the nature and extent of the plaintiff’s contact with patients and of the risk her refusal would pose, the court said.Chenzira v. Cincinnati Children’s Hospital Medical Center, (S.D. Ohio, December 27, 2012).

This case brings back memories of the 1996 California case in which the EEOC regional office determined that a vegetarian bus driver fired for refusing to hand out free hamburger coupons to passengers was discriminated against on the basis of religion. The defendant paid $50,000 to the bus driver to settle that case.

We posted previously about the Seventh Circuit holding in EEOC v. United Airlines that, in deciding whether a disabled employee who cannot perform the essential functions of his or her position is entitled to a vacant position as an accommodation under the ADA, the employer must disregard its policy of awarding positions to the best-qualified candidate.  The “best-qualified” policy relates to the question of whether transfer to a vacant position, the ADA’s “accommodation of last resort,” requires an employer to provide the disabled employee a “mandatory preference” or “an opportunity to compete” for that position.

The Seventh Circuit had remanded the case and directed the district court to apply the “reasonable accommodation” analysis from U.S. Airways, Inc.  v. Barnett , i.e., whether mandatory reassignment would be reasonable “in the run of cases” and, if so, whether any considerations in this case would make mandatory reassignment an undue hardship. The court stayed its remand to allow United Airlines to seek review by the United States Supreme Court.

 

On December 6, 2012, United Airlines asked the Supreme Court to hear its appeal. United Airlines said the case “raises the important and recurring issue whether the “preferences” provided for in the ADA (i) level the playing field for disabled employees [i.e., provide the opportunity to compete] or (ii) go significantly further and require affirmative action such that, absent undue hardship, employers who have an established, bona fide policy to fill positions with the best-qualified individual ordinarily must instead fill that position by reassigning a minimally qualified disabled employee who is not the most-qualified individual.”

 

In 2008, the Supreme Court had agreed to resolve this issue by reviewing the Eighth Circuit’s decision in Huber v. Wal-Mart but dismissed the case as moot when the parties settled their dispute.

Determining when to terminate an employee on a leave of absence for medical reasons is a challenge under any circumstances. No “inflexible” rules can be applied, not even “equal treatment.”  As part of its deliberations, an employer must make an individualized assessment to determine if, when, and under what circumstances an employee can return to work. A National Labor Relations Board decision illustrates how that challenge can be even greater in a unionized workforce. 

In Hostess Brands Corporation, 359 NLRB No. 26 (December 3, 2012), the union sent the company a written request asking it to provide  ”..when or if the company will pursue termination on each [employee currently on workers’ compensation].” While the employer did not respond at all, in most workplaces, providing a substantive response would require gazing into a crystal ball.  The NLRB held that the information the union sought “was necessary for and relevant to the Union’s performance of its duties as the exclusive collective bargaining representative of the unit” and the company violated the National Labor Relations Act by not providing it.

The company told the plaintiff he was being terminated because it “feared that he had contracted swine flu while in Mexico for his sister’s funeral.” For a time, swine flu had been declared a public health emergency and medical authorities feared the worst. We now know that the swine flu hospitality and mortality profile is very similar to the seasonal flu. 

Can a plaintiff with a transitory and minor ailment who is mistakenly perceived as having a far more serious ailment bring a “perceived disability," aka, "regarded as” claim under the ADA? Citing the common sense principle—a principle somewhat at odds with the policy underlying the ADA’s “regarded as” theory–that “the question turns not on perception, but on reality,” the federal district court noted that the swine flu is both transitory and minor and granted summary judgment to the employer. Valez v. Minnesota Quarries, Inc., (D. MN. Dec. 10, 2012).