Dealing with An Employee’s Request for Leave As A Reasonable Accommodation

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By Kathleen J. Jennings (kjj@wimlaw.com)

[Have you listened to the Cover Your Assets Labor and Employment Podcast? Listen to it here!]

The Americans With Disabilities Act (ADA) prohibits discrimination against persons with disabilities. What sets it apart from other anti-discrimination statutes is the requirement that an employer provide reasonable accommodation to an employee or job applicant with a disability, unless doing so would cause significant difficulty or expense for the employer. [Title VII does require some reasonable accommodations for persons with closely held religious beliefs, but the standard is slightly different.]

So what is a “reasonable accommodation?” It is the stuff of much litigation, for starters.

The EEOC tells us that a reasonable accommodation is any change in the work environment (or in the way things are usually done) to help a person with a disability apply for a job, perform the duties of a job, or enjoy the benefits and privileges of employment. Basically, the determination of what is a reasonable accommodation must be made on a case-by-case basis through what is known as the interactive process–a conversation between the employer and employee about what accommodation(s) would help the employee perform the job and the impact on the employer if it provided such accommodations. And I shouldn’t have to tell you–document every step of that process.

It is important to note that an employer doesn’t have to provide an accommodation if doing so would cause “undue hardship” to the employer. Undue hardship means that the accommodation would be too difficult or too expensive to provide, in light of the employer’s size, financial resources, and the needs of the business. An employer may not refuse to provide an accommodation just because it involves some cost. An employer does not have to provide the exact accommodation the employee or job applicant wants. If more than one accommodation works, the employer may choose which one to provide.

A recent example of a requested accommodation that was simply not reasonable comes to us from Utah. In Anderson v. Zions Bancorporation N.A., No. 2:19-cv-00771, 2022 BL 66589, 2022 Us Dist Lexis 35716 (D. Utah Feb. 28, 2022), the plaintiff alleged that his former employer violated the ADA by denying his request for a reasonable accommodation, retaliating against him, and wrongfully terminating him after he requested a leave of absence due to depression and anxiety. The plaintiff requested almost one year of continuous leave as an accommodation for his mental health issues, and the employer found such a lengthy amount of leave to be an undue hardship. The court agreed.

We have seen other cases where employees seek leave without any end point, and such indeterminate leave is also considered to be an undue hardship for an employer.

If an employee requests leave as a reasonable accommodation, it is important for the employer to nail down exactly when the employee expects to come back to work. (As an aside, you should also determine if FMLA applies). If the employee doesn’t tell you, ask! Give them a deadline to provide the information. Then determine if the amount of leave is reasonable or presents an undue hardship. How long can you keep this job open? How long can other employees cover for this person?

If the employee does not come back on the anticipated date, the employer should follow up and determine if the employee is ever going to come back to work. If they don’t respond, they have essentially abandoned the job.

And speaking of FMLA, if an employee does not come back to work at the expiration of FMLA leave, it is generally not a good idea to terminate them immediately. Because if the reason that the employee needs the leave is because they have a disability, then the the ADA will apply and you need to commence the interactive process to determine if they need a reasonable accommodation, such as more unpaid leave.

This can get pretty complicated, so it is best to talk these issues over with trusted employment counsel.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

Copyright 2022 by Kathleen J. Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

Can An Employer Fire Employees Who Refuse To Come Back to the Office?

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By Kathleen J. Jennings (kjj@wimlaw.com)

As COVID restrictions ease, many employers are deciding whether to require employees who have been working remotely to come back to the office. So can an employer fire employees who refuse to come back to the office? Yes–with some important exceptions.

Let’s face it, we have learned over the past year that remote work has some advantages. No commute, no need to dress up and put on makeup very day (unless there is a Zoom meeting), no uncomfortable shoes, and you can fix your own pretty inexpensive lunch. And that super-chatty co-worker can’t stop by and take up your time with another story about his cats. But there are disadvantages as well. It’s hard to have a consistent corporate culture when employees are not in the same place. Employees may not feel connected to their co-workers because they don’t have the water cooler or break room conversations. Mental health issues have arisen for people who have felt lonely or isolated during remote work. And we cannot underestimate the value of face-time in furthering career advancement. The bottom line: some people thrive in a remote work setting, and some people don’t. Some people simply prefer to be in an office setting with co-workers.

If an employer decides that it wants employees back in the office, it can generally terminate employees who refuse to give up their remote work lifestyles; it is insubordination for an employee to refuse a reasonable directive of her/his employer. However, and this is a big however, if an employer is covered by the Americans With Disabilities Act, it may need to consider whether allowing a disabled employee to continue to work remotely is considered a reasonable accommodation. For example, in Massachusetts, a worker with asthma sued their employer regarding a work from home accommodation, and the federal district court allowed the case to go forward.

The success of remote work in the past year or so will make it more difficult for an employer to convince a court that working remotely is not a “reasonable” accommodation or that working at a particular location is an “essential function” of the job. It’s a good idea to consult an attorney in this situation.

Just because you CAN do something does not mean that you must do it. There are going to be some folks who feel so strongly about working remotely that they are willing to quit rather than return to the office. Or maybe they still don’t have reliable child care. Is it worth losing employees, especially valuable employees, over this issue? How easily will you be able to replace them?

And finally–if you want to avoid claims for discrimination on the basis of characteristics other than disability, you’d better have some valid, non-discriminatory reasons for allowing some employees to work remotely while others are required to go into the office. Don’t play favorites.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

Copyright 2021 Kathleen Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

Telecommuting as a Reasonable Accommodation Under the ADA: The Pandemic Trial Run

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In the times before COVID-19, there were people (like the author) who telecommuted, but we were definitely in the minority. Now, thanks to the pandemic, many more people have been working remotely, and doing so successfully. And according to some new EEOC Guidance, successful telecommuting could be considered something of a trial run for those employees who ask to work remotely after the pandemic as a reasonable accommodation under the Americans With Disabilities Act (ADA).

This is a new Q & A from the EEOC’s “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws:”

Q: Assume that prior to the emergence of the COVID-19 pandemic, an employee with a disability had requested telework as a reasonable accommodation. The employee had shown a disability-related need for this accommodation, but the employer denied it because of concerns that the employee would not be able to perform the essential functions remotely. In the past, the employee therefore continued to come to the workplace. However, after the COVID-19 crisis has subsided and temporary telework ends, the employee renews her request for telework as a reasonable accommodation. Can the employer again refuse the request? (9/8/20; adapted from 3/27/20 Webinar Question 22)

A: Assuming all the requirements for such a reasonable accommodation are satisfied, the temporary telework experience could be relevant to considering the renewed request. In this situation, for example, the period of providing telework because of the COVID-19 pandemic could serve as a trial period that showed whether or not this employee with a disability could satisfactorily perform all essential functions while working remotely, and the employer should consider any new requests in light of this information. As with all accommodation requests, the employee and the employer should engage in a flexible, cooperative interactive process going forward if this issue does arise.

In a nutshell: if an employee with a disability had requested telecommuting as a reasonable accommodation before COVID-19, and that request was denied on the grounds that the employer did not think telecommuting would be workable, and then that employee successfully telecommutes during the pandemic, now the employer may no longer have grounds to deny the telecommuting as a reasonable accommodation after all of this pandemic stuff is over. Why? Because the pandemic telecommuting operated as a “trial run” that showed that the employer’s initial concerns about teleworking may be unfounded. At a minimum, the employer cannot simply deny the request to work remotely on the ground that it was denied previously. Instead, the employer must work through the interactive process with the employee to determine what accommodation is reasonable.

Although I am always reminding employers to be consistent in their treatment of employees, this is an exception to that rule. An employer may need to treat a disabled employee differently from other employees because the disabled employee needs accommodations that other employees do not. The interactive process by which an employer, the disabled employee, and the employee’s health care provider discuss and decide upon a reasonable accommodation requires an individualized assessment of the employee’s abilities and needs.

The takeaway: The duty to provide reasonable accommodation is a fundamental statutory requirement under the ADA. An employer should respond expeditiously to a request for reasonable accommodation. If the employer and the individual with a disability need to engage in an interactive process, this too should proceed as quickly as possible.  Similarly, the employer should act promptly to provide the reasonable accommodation. Unnecessary delays can result in a violation of the ADA.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2020 Kathleen J. Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.