San Antonio Employment Law Blog : San Antonio Employment Lawyer & Attorney : Thomas Crane Law Firm : South Texas, Bexar County TX Wage & Discrimination Issues

Many employers have implemented so-called no-fault attendance policies in which employees are charged with a day of leave regardless of the reason for the leave.  Once, the employee accumulates enough absent days, s/he will be fired.  Such leave policies, however, conflict, with the Americans with Disabilities Act.  Under the ADA, when an employee requests an accommodation which might involve leave, the employer must consider the request on an individual basis.  The consideration must address the specific employee's needs, not the potential needs of all employees who request leave.  

Texas Employment Law Update, a very good blog, agrees with other employment law blogs which argue that attendance is an essential requirement of every job.  See Texas Employment Law post.   Other management blogs argue that attendance is a requirement for every job.  See Work Blawg.  Work Blawg cites cases for the proposition that attendance is an implicit requirement for every job.  But, there are many cases which expressly hold that leave is a viable accommodation.  See, e.g., US Airways, Inc. v. Barnett, 535 U.S. 391, 397-98 (2002) (an accommodation may includes breaks for treatment).   

See also Criado v. IBM Corp., 145 F.3d 437, 443 (1st Cir.1998) (employee's attempt to extend a three week leave for treatment was reasonable); Walton v. Mental Health Ass’n. of Southeastern Pennsylvania, 168 F.3d 661, 671 (3d Cir. 1999) (“unpaid leave supplementing regular sick and personal days might, under other facts, represent a reasonable accommodation,” but leave requested here was not reasonable); Rodgers v. Lehman, 869 F.2d 253, 259 (4th Cir.1989) (decided under § 501 of the Rehabilitation Act); Cehrs v. Northeast Ohio Alzheimer’s Research Center, 155 F.3d 775, 782–783 (6th Cir. 1998); (medical leave of absence, paid or unpaid, may be reasonable accommodation); Haschmann v. Time Warner Entm’t Co., 151 F.3d 591, 601 (7th Cir.1998); Brannon v. Luco Mop Co., 521 F.3d 843, 849 (8th Cir. 2008); Graves v. Finch Pruyn & Co., Inc., 457 F.3d 181, 185 n.5 (2d Cir. 2006) (noting that “[m]ost other circuits and the Equal Employment Opportunity Commission have concluded that, in some circumstances, an unpaid leave of absence can be a reasonable accommodation under the ADA.”).

The cases that argue that attendance is a job requirement for every job actually address a slightly different issue.  Many of these cases actually address the question of whether the employee can ever work.  These cases involve employees who miss months and years of work.  In Rogers v. International Marine Terminals, Inc., 87 F.3d 755, 759 (5th Cir. 1996), the Fifth Circuit did indeed suggest that attendance was a requirement for every job.  But, the fact situation in this case concerned an employee who had missed a year of work and would likely miss many more months of work.  The issue was about whether the employee could ever work again, not whether intermittent leave would accommodate his illness or not.  The court simply stated the legal ruling too broadly. 

Every illness is different.  Every treatment plan is different.  Every situation is different.  Cities have more sources for occupational therapy than rural locations.  A patient living in a rural community will have far fewer choices for physical therapy than a city worker.  No one situation is the same.  That is why the ADA requires an individual assessment. 

Indeed, even discussing whether a particular job task is truly required is a fact issue.  Whether attendance, lifting, writing, sitting, standing, etc. are true job requirements is a fact issue.  It is mis-leading to argue that one case decision can state affirmatively that one particular job task is required for a broad range of jobs, much less "every" job.  The Fifth Circuit stated as much in Barber v. Nabors Drilling U.S.A., Inc., 130 F.3d 702, 707 (5th Cir. 1997):

"First, we cannot say, on the facts of this case, that any or all of the above listed … duties as a matter of law are essential functions …. If we venture to second-guess then we simply usurp the most critical function of the jury in ADA cases, i.e., the injection of some indispensable common sense in the determination of what is or is not an essential function."

So, in the end, as with most legal questions, it depends on the situation.....

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Job Accommodation Network, a government (DOL) sponsored website, is an excellent place to start assessing what accommodations an employee may need to perform his/her job.  The website breaks down the possible accommodations by each particular diagnosis.  It provides a separate web page for employers to review what their requirements may be regarding certain diagnoses.  

For some diagnoses, the appropriate accommodation cane be obvious.  Someone using a cane will have a clear need for stair handrails.  But, what about someone suffering from stress?  Or a worker suffering from bipolar disorder or sleep disorders?  JAN can help with all these diagnoses.  Any good accommodation will be based on medical opinion, but JAN may help the worker and the employer understand what questions to ask. 

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I love the lawsuit business.  Other than my other career, the Army Reserve, this is one area where you see people acting gracefully under pressure - or not.  Charlie Sheen has been imploding for the past few weeks.  He apparently has been diagnosed with bipolar disorder.  He very publicly disprespected his boss, his executive producer.  He was then fired in a very public way.  He has now filed his suit seeking "bazillions."  But, now the lawsuit seeks a mere $100 million.  

It was clear he would file for some sort of breach of contract.  But, his lawsuit actually refers to a perceived disability by Warner Brothers that Charlie was in a manic state or was bipolar.  The complaint says Warner Bros. refused to accommodate the "alleged" disabilities.  The suit does not admit that Charlie actually suffers from a disability of any sort.  See ABA Bar Journal report.  The suit accuses the executive producer, Chick Lorre, of making derogatory remarks about Mr. Sheen's condition.  The suit also includes a cause of action for breach of contract.  

The complaint includes some personal attacks against Mr. Lorre suggesting to me that the client, Charlie Sheen, had too much imput into the drafting of the document.  The complaint also appears to include an error under the Americans with Disabilities Act.  One cannot seek accommodation for a perceived disability.  An employee can only seek accommodation for an actual disability.   I suspect the lawyers tried to work in the disability theory, but Mr. Sheen must have flinched from admitting he suffers from bipolar disorder.  The disability theory is an interesting approach for a major Hollywood star to take.  But, it appears he backed down from it at the last minute.  So, the lawsuit does not claim he has a disability, yet it essentially asks for some sort of accommodation for the disability he does not claim

I need to add that in a previous position with Advocacy, Inc., I represented many, many persons with bipolar disorder.  Almost all of them comported themselves with dignity and respect, which qualities Mr. Sheen appears to lack. 

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The perception among some folks is that discrimination lawsuits are almost always frivolous.  Some people believe discrimination could never happen to a good worker.  One of my clients illustrates the fallacy of that belief.  

Sue worked hard for her employer, a major employer in San Antonio.  She thrived despite disabilities such as spina bifida and depression.  Sue worked in Human Resources, the experts on discrimination and personnel issues.  She had an informal accommodation that whenever her depression worsened, she would work from home.  That is what her employer did when they were sick anyway - they worked from home.  So, her "accommodation" was already part of the corporate culture.  All the salaried employees would work from home on sick days. 

Sue's depression worsened at the same time each year, which coincided with the time of the year when her family suffered a huge family crisis some years before.  The employer, Acme Brick, was understanding.  Her boss was the HR Direcotor.  Acme Brick went through many HR directors.  The  HR directors all had a good undertanding of the law allowing accommodation.  Sue was the "star" employee.  The HR Directors would praise Sue at management meeting as the "right hand woman" in HR.  Sue produced the payroll every two weeks with no errors, ever.  After about a year, she got her third new HR Director, Bob.  Bob praised Sue at the management meeting In April.  He gave her a raise in June.  

One day in July, a co-workers told Sue that Bob seemed to be hiring his former co-workers from a prior job.  Sue doubted it but pulled up Bob's resume to see where Bob had worked in the past.   Bob walked in, saw his resume on Sue's computer screen and yelled at her.  He then walked out.  A week later,  Sue called in sick.  She said she would work from home, as always.  But later that day, Bob had her access to the work sever pulled.  Now, Sue could do no work from home.  In an email later that day, Bob told Sue her absences were becoming a problem.  Sue offered to take FMLA leave, unpaid leave.  Bob did not respond.

Sue was on good terms with a member of the board.  She told Jack what had happened.  Jack assured her she would not lose her job.  He said they had some issues with Bob.  So, Jack asked Sue to quietly check Bob's background and see if there were any issues.  Sue agreed to do so. 

Driving to work the next day, Sue had a flat tire.  She called Bob to let him know.  Her spina bifida kept her from performing manual labor.  She she had to wait for her husband to come help with the tire.  Over the noise of Loop 410 traffic, Bob fired Sue.  Sue could barely hear him over the noise.  Bob said her attitude was an issue. 

So, only a month after giving her a raise, Bob fired her for "attitude and performance" issues.  Bob had only been the Director for some three months.  He had never counseled Sue verbally or in writing.  

Sue then spoke with Jack.  Jack said he could do nothing.  He offered a small severance payment. But, Sue loved Acme Brick.  She wanted her job.  

Eventually, she filed with the Equal Employment Opportunity Commission.  Acme Brick coded Sue as not "rehireable."  Sue applied for countless HR jobs.  But, HR was the one area where managers knew what "unhireable" meant.  She could not get a job or an interview.  With her spina bifida, she might qualify for Social Security.  But, she wanted to work.  Now, a lawsuit became more important to the former "star" employee. 

As one client told me, one day you're the stud.  The next day, you're the dud. 

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 Michael Fox (not the actor) writes a nice blog on employment law from the employer's perspective at: http://employerslawyer.blogspot.com/.  He wrote recently about a jury result in Madison, Wisconsin.  A jury awarded $2 million to a teacher who sought the simple accommodation of a class room with a window.  Otherwise, she was subject to crying spells, fatigue, anxiety, hypervigilance and a host of other emotional maladies.  See post.  All this for a first grade teacher. 

Mike's point is that we should beware of cases reported in the newspaper.  He suggests this report that all the teacher needed was a room with a window may have more to it than that.  I am sure he is right about that.  Not because reporters lack ability, but more because it is difficult to report on an unfamiliar area.  Many movies get all aspects of a trial wrong.  The same would follow with news reports.  I have noticed this with my other career, the US Army.  I have heard reporters describe 100 soldiers as "brigade" sized (no way), Bradley Fighting Vehicles referred to as tanks (not even close), and platoon leaders referred to as commanders (not really).  

The newspaper report and Mike are right about one thing, the jury was upset when they awarded $2 million to the teacher.  They had to believe the school district wasted their time with a weak case in order to award that much money.  The award will be reduced by a big chunk - the Americans with Disabilities Act is subject to caps on damage awards.  The highest cap for emotional suffering type damages is $300,000.  The newspaper reports that the teacher, Renae Ekstrand, suffered from seasonal affective disorder, a form of depression.  See Leagle report.  The employer initially won on summary judgment.  The summary judgment in favor of the employer was overturned on appeal in 2009.  In 2010, the trial resulted with this $2 million award. 

Ms. Ekstrand suffered a nervous breakdown after having to teach in a windowless room.  There was apparently an empty classroom available with a window. 

The point of the newspaper story is that everything could have been avoided if the school had offered her a room with a window.  One room was apparently available with no effort.  

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The ADA was amended substantially in 2009.  See prior discussion here.  With the new ADA in place, disability cases will be more about the accommodation process and less about whether a person is disabled.  Workplace Prof discusses a case that sheds some light on the accommodation process.  An employee seeking accommodation must present his/her concerns to the employer.  The employer is then required to respond by either providing the accommodation or offering alternatives.  This is known as the "interactive process."  

Some employees, inspired by some limited knowledge of the law, then argue with the employer and essentially refuse particular accommodations.  The employer is not required to provide the requested accommodation.  It is only required to provide an accommodation that meets the employee's need.  In Gratzi v. Office of Chief Judges, 601 F.3d 674 (7th Cir. 2010), the employee was a court reporter who had an incontinence problem.  She needed a nearby bathroom as an accommodation. She needed to get to a restroom on a moment's notice.  But, her position was reorganized into a pool position in which she no longer was assigned to a particular worksite.  There was no reason to believe this reorganization was motivated by discriminatory intent. 

The employer suggested a number of possible accommodations, all of which were rejected by Mr. Gratzi.  She insisted on reinstatement to her previous position.  Reinstatement to her previous position meant she would be assigned to one particular worksite.  The court reporter did not seek her doctor's advice regarding some of these proposed and then rejected accommodations.  She simply rejected them outright.  The appellate court found in favor of the employer.  The plaintiff, did not, said the court, explain why the offered suggestions would not work.  She did not explain why these alternatives would not allow her to get to a restroom within five minutes, as she needed.  

Some of the alternatives would have required Ms. Gratzi to raise her hand for a break.  She argued that this would cause her embarrassment, possible resentment by other court reporters who would have to cover for her, and would disrupt court proceedings.  But, as the 7th Circuit said, this was a detriment more to her employer than to the employee.  The court felt she did not do enough to reach an accommodation.   A few employees have come to see me lately expressing their resentment at the employer's apparent unwillingness to provide the requested accommodation.  But, the law does not require the employer to provide you the accommodation you want.  It only requires the employer to provide an accommodation that meets your medical needs.  

As Workplace Prof points out, the employee's outright rejection of several alternatives made her an unsympathetic plaintiff.  Sympathy does count in litigation.  That five minutes of feeling good when you tell the manager "no" can cause long term pain and regret.  It would serve any employee much better if they articulate some objective reason why an alternative will not work.  Even better, check with your doctor before responding to the employer's offer. 

Note that the employer in Gratzi was allowed to reorganize in ways that added to the employee's difficulties, so long as the reorganization was done without discriminatory intent.  

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 Fitness for duty exams are not popular with the workforce.  They can be very stigmatizing.  But, employers want to know if an employee has issues that could affect business.  Most caselaw says fitness for duty exams for unspecified reasons are not justified - they are perceived s a backdoor to discriminate based on disability.  But, the 9h Circuit found in Brownfield v. City of Yakima that sometimes they are appropiate.  See decision.  In this case, a police officer exhibited erratic behavior a few years after he sustained a head injury.  He was complaining over a period of years about a supervisor who Brownfield believed was keeping him from  promotion.  After exhibiting some erratic behavior, his employer required him to see a doctor and provide a report.  Brownfield cooperated at first and then refused to follow through.  The first doctor did find a mental diagnosis.  

The court found that in a workplace where the employer is engaged in dangerous work, preventive fitness for duty exams might be appropriate where there is a business necessity.  The court cautioned that they should not be used as a means to harass an employee or to fish for non-work related medical issues.  The business necessity standard is "quite high" and should not be confused with mere expediency, said the court.  The court then concluded: 

         "Nevertheless, we hold that the business necessity standard
         may be met even before an employee’s work performance
         declines if the employer is faced with significant evidence
         that could cause a reasonable person to inquire as to whether
         an employee is still capable of performing his job. An employee’s
          behavior cannot be merely annoying or inefficient to
         justify an examination; rather, there must be genuine
         reason to doubt whether that employee can perform
         job-related functions."

This ruling may not provide the clearest guidance, but it is a start.    

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How much accommodation is enough?  There is surprisingly little caselaw on the subject.  Most issues arising under the old ADA concerned whether a person was truly a person with disability.Now that the ADA hs been substantially amended, we will surely start seeing more accommodation issues.  In EEOC v. UPS Supply Chain Solutions, we see a case addressing the issue of how much accommodation is "reasonable."  In this case, the employee had been deaf since birth.  His first and primary language was American Sign Language.  He reads and writes at the 4th grade level.  That is not unusual for people who have been deaf since birth.  Many ASL signs do not correlate to written words, and vice versa.  

In this case, UPS used an ASL translator sometimes but often relied on written communication. When the employee would not know a written word, they would tell him to look it up in the dictionary.  When that did not help, UPS provided nothing further.  The employer held weekly and monthly meetings - the employer relied on written agendas, notes and emails to convey the information in these meetings to the employee, Mauricio Centeno.  The company refused to provide an interpreter for meetings that lasted less than two hours.  That level of accommodation is not enough, according to regulation.  Lack of a translator at key meetings is the same as no translator at all.  Centeno said he could not understand what was in some of the written communications.  UPS would not hire a translator for the weekly and monthly meetings and trainings.  

The EEOC advised Centeno that he did not need to attend meetings without an interpreter. Centeno missed some meetings.  The employer then told him he had to attend all meetings.  Later, he was counseled in writing for his behavior in the lunch room.  The EEOC later filed suit based on the employer's failure to accommodate. 

The 9th Circuit reversed the summary judgment in favor of the employer. The appellate court said at the least, there is a fact question whether this accommodation was "reasonable."  The employer never claimed the obvious defense that the translator was too expensive.  Translators in the San Antonio area charge anywhere from $75-100 per hour.  The appellate court wrote:

“In summary, an employer has discretion to choose among effective modifications, and need not provide the employee with the accommodation he or she requests or prefers, but an employer cannot satisfy its obligations under the ADA by providing an ineffective modification. Where, as here, there is a disputed issue of fact regarding whether the modifications the employer selected were effective, and where the trier of fact could reasonably conclude that the employer was aware or should have been aware that those modifications were not effective, summary judgment is not appropriate.

See decision.  Frankly, I am surprised the lower court granted summary judgment.  As Workplace Prof says, this is one the employer should settle.  If the employer wishes to fire or discipline an employee for violating policy, the employer must make certain the employee understood that policy. 

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 A recent Third Circuit Court of Appeals decision finds that a change in shifts is indeed an accommodation which an employer may have to provide in certain circumstances.  In Colwell v. Rite Aid, the employee had no vision in one eye due to glaucoma.  So, she could not drive at night.  She asked to change shifts from the night shift to the day shift.  Rite Aid refused, because "it would not be fair to other employees."  A doctor provided a note also stating that she should not work at night.  But, it was to no avail.  Rite Aid refused.  The employee relied on family members to pick her up from work after 5:00 pm.  But, after a year of frustration and being treated by managers and co-workers as a pariah, she quit.

On appeal, the employer argued that it was not responsible for how an employee arrives to work, only for what occurs once the employee does arrive.  The federal Third Circuit rejected that argument.  The court found that the employer should have allowed the shift change.  The Americans with Disabilities Act expressly provides that one possible accommodation is "job restructuring, part-time or modified work schedules."  

As the Third Circuit noted, there are many cases finding that an employer is indeed not responsible for how an employee gets to work.  But, this requested accommodation was different.  This requested accommodation concerned more the conditions of employment once the employee was actually at work.  The employer did indeed control whether the employee would work at night or during the day.  

The employer must engage in an "interactive process" to arrive at a solution to the accommodation request.  Rite Aid had "flatly" rejected Colwell's requests for an accommodation.  And, later, Colwell resigned before any further meetings could occur.  Under the facts here, the jury could conclude that Colwell or Rite Aid failed to engage sincerely in the interactive process.  But, that decision was a fact question.  Facts questions should be decided by the jury, not a judge.  

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 The Fifth Circuit Court of Appeals issued a good decision on reasonable accommodation recently.  EEOC v. Chevron Phillips Chemical Co., LLP.   One of the few decisions to plumb the depths of acommodation and how the interactive process should work.  The lower court granted summary judgment in favor of the employer.  That is, the court found that the plaintiff had no case.  A summary judgment is a term of art meaning quick judgment, one without the need for a trial.  The lower court found that the initial request for accommodation, a simple release note from the doctor was *not* a request for accommodation.  Because, the release note did not offer a possible accommodation.  

But, the Fifth Circuit reversed this finding.  The law does not require magic words, said the higher court, when asking for an accommodation.  The employer was already aware of the employee's disability.   So, that knowledge plus this release note is enough to indicate the need for accommodation.  The employer was, in effect, on notice regarding the need for acommodation. 

An employee seeking accommodation is not required to come up with the solution on her own.  So, yes, the release note from the doctor was enough in this case to serve as a request for accommodation.    Once the employee presents a request for an accommodation, then the employer *must* engage in an interactive process to arrive at a solution.  Here, the employer simply said, no, "this isn't going to work."  Such a statement shows the employer was refusing to engage in the interactive process, said the higher court.   That refusal violates the Americans with Disabilities Act.  Both the employee and employer must talk about the requested accommodation and arrive at a solution together.  

 So, for these reasons, the higher court found that summary judgment was not appropriate and the plaintiff should have a trial on these issues.  As Mike Maslanka has said, the future issues in ADA cases will probably lie in the accommodation process, or lack of such a process.  

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