My firm recently was asked by a client to provide a list of the top three compliance issues facing employers today. I know you are sitting there thinking, “only three?!?!” As we considered the issues our clients face, though, we compiled a list that you probably see on pretty much every continuing education brochure you encounter – FLSA problems involving misclassification, the NLRB and its decisions and directives regarding social media, and the intersection of the ADA (and ADAAA) and FMLA. Had enough acronyms yet? While you may be exhausted with these topics, they certainly bear repeating over and over again because the Department of Labor, the NLRB and the EEOC are not going anywhere anytime soon and their enforcement actions in these areas continually increase.
I think one area in particular, though, needs a little more discussion. As I really sat and thought about the issues employers face today, one issue kept rising to the top. It is not an exaggeration when I say that two out of every three calls or e-mails I receive involve disability discrimination concerns or cases. The Americans with Disabilities Act will celebrate its 25th Anniversary this July 26th. Despite the fact it is a quarter-century old, it is one of the hottest issues around. Remember how active you were at 25? Of course, the high level of ADA activity is no doubt related to the Americans with Disabilities Act Amendments Act, which became effective on January 1, 2009.
The issues I see do not involve your run of the mill terminations or demotions or other adverse employment actions because of an employee’s disability. I just do not believe that kind of animus is prevalent in the workforce today. Rather, employers seem to run into problems due to a lack of understanding regarding the ADA/ADAAA. I see this most often in the realm of reasonable accommodations and “regarded as” disability discrimination.
According to a case from the U.S. District Court for the Southern District of Texas, Brown v. Kastle Systems of Texas, LLC, once an employee requests a reasonable accommodation, “the employer is obligated by law to engage in an ‘interactive process’: ‘a meaningful dialogue with the employee to find the best means of accommodating that disability.’” Furthermore, the U.S. Court of Appeals for the 5th Circuit has held that responsibility for the interactive process is shared between employer and employee and that “[t]he need for bilateral discussion arises because ‘each party holds information the other does not have or cannot easily obtain.’” Importantly, the Brown court held that the process requires “communication and good-faith exploration.”
In Loulseged v. Akzo Nobel, Inc., the 5th Circuit Court of Appeals provided some extremely cautionary language for employers:
- “[W]hen an employer’s unwillingness to engage in a good faith interactive process leads to a failure to reasonably accommodate an employee, the employer violates the ADA.”
- “A clear declaration by an employer that no reasonable accommodation will be forthcoming might indeed be seen as terminating the interactive process…”
- “When a breakdown occurs because an employer creates an objectively reasonable perception that the process is clearly at an end, the employer is as well placed as the employee to avoid the situation.”
Time and again I see employers fail to engage in the interactive process to determine a reasonable accommodation. Merely providing one proposed accommodation or simply rejecting outright the employee’s proposed accommodations without providing alternatives most likely will be seen as a violation. Employers need to take the time truly to determine if a reasonable accommodation is possible.
At this point, it is necessary to address a common employer misperception. Most employers believe that a reasonable accommodation DOES NOT include finding the employee in question a new job and/or creating a new position. At a very base line level, this is correct. As always in the law, though, there is a grey area. In Daugherty v. City of El Paso, the 5th Circuit Court of Appeals held that a reasonable accommodation also “may include…reassignment to a vacant position.” This is so because, a qualified individual with a disability includes “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.”
On several occasions, I have seen situations where an employer terminated an employee who was working on light duty in a position other than his or her regular position on the grounds that the employee could not perform the functions of his or her regular position with or without a reasonable accommodation. If the light duty position in which the employee is working is a permanent position, however, and the employee is qualified for it and desires it, the employer most likely has violated the ADA/ADAAA by terminating the employee.
Is your head a foggy mess and are your eyes glazed over yet? It gets better. As I mentioned earlier, another problem area is “regarded as” disability discrimination. Again, the problem arises from a point of misunderstanding. An employee is protected under the law if action is taken against him or her because the employer regarded him or her as having a disability. Treating an employee as if he or she has a disability creates ADA protection for that employee. Such treatment could include forcing the employee to take FMLA or other personal leave when the employee does not want to take such leave, proposing accommodations, and making comments to the employee indicating that he or she is disabled. Often times these acts come from front line managers and supervisors who are unfamiliar with the law. All of a sudden, you now have an employee protected by the ADA/ADAAA even though that employee is not disabled. As always, it is extremely important to train your managers and supervisors.
Like any 25 year old, the ADA can be a little headstrong. But if you familiarize yourself with the requirements, maintain communication, and act in good faith, you have a great shot at avoiding ADA claims. You just might be around and on the job when the ADA celebrates its 50th anniversary! Just make sure you get it something gold!
