“Sooo… We Need to Talk” – The Consequences of Failing to Engage in the Interactive ProcessThe ADA requires employers to engage in an interactive process with disabled employees, and courts often set a high bar for what that looks like. Expensive litigation continues to be the consequence when employers terminate an employee during or at the end of the interactive process. The need for managers and supervisors to understand how to communicate and clearly document that communication with employees is never more critical than when they are facing an employee who needs an accommodation to perform his job. McClain v. Tenax Corporation is a sobering reminder of how much emphasis federal courts place on employers engaging in the interactive process and working with employees with disabilities.

Background

Terry McClain, who worked for Tenax Corporation, was born with hand and foot deformities—two fingers on each hand, half a foot on each side, and no toes. As a result, McClain had difficulty grasping with his hands, walking, and climbing up or down steps. Nevertheless, he worked 40 hours per week supervising temporary janitorial employees. After a year or so, Tenax cut McClain’s hours in half because of a production slowdown. To make up for his loss of hours, Tenax offered McClain additional work wrapping pallets and moving them to a warehouse. McClain accepted the work and began working part time in his janitorial position and part time in his pallet-wrapping position.

Unlike his janitorial position, the pallet-wrapping work required McClain to constantly climb in and out of a forklift. Within two days, McClain was experiencing pain and receiving complaints from Tenax managers about his inability to complete his work efficiently. Because of the issues that he was having, McClain told the plant manager that he could not perform the pallet-wrapping work and requested that Tenax accommodate his disability by allowing him to return to his original position on a full-time basis. According to McClain, Tenax managers gave McClain an ultimatum—do both jobs or quit. Ultimately, McClain quit and sued Tenax for violating the ADA by failing to accommodate him and retaliating against him for requesting accommodations.

District Court Denies Employer’s Summary Judgment Motion

Tenax moved for summary judgment, asserting that it could not have failed to reasonably accommodate McClain because his requested accommodation—a full-time janitorial position—did not exist. The U.S. District Court for the Southern District of Alabama disagreed.

First, the court explained that an employer must make a reasonable accommodation for the known physical or mental limitations of an otherwise qualified employee unless the accommodation would impose undue hardship on the operation of the business. The court noted that McClain frequently informed his managers of his inability to perform the essential functions of his job because of his disability and requested a specific accommodation—a return to his previous full-time position. The court determined that Tenax had not proven that accommodation would have posed an undue hardship.

Returning to Tenax’s argument that it had no full-time janitorial positions, the court ruled that Tenax failed to present any evidence that this statement was true during the two-month period that McClain worked part time wrapping and moving pallets. However, the court’s most significant holding was that the facts presented by McClain gave rise to a reasonable inference that Tenax discriminated against McClain because of his disability and precluded summary judgment in Tenax’s favor on McClain’s failure-to-accommodate claim. The court stated that McClain presented sufficient evidence that Tenax had summarily rejected all of his requests by informing him that his only options were to keep doing both jobs or resign. If Tenax gave such an “all-or-nothing ultimatum,” it would have “slammed the door on any possibility of a reasonable accommodation, foreclosed the option of McClain working just as a part-time [janitor, and] obliterated any possibility that the ADA interactive process could ever take place.”

Have the Tough Conversation

So what should employers do to avoid (or be in the best position to defend) failure to accommodate claims?

  1. Have the tough conversations! It is true that these discussions may be awkward and seem personal and invasive, but they are necessary to protect your business. Engaging in an open dialogue with your employee about his disability and what he needs to successfully perform his job—even if you can’t provide the accommodation—places you in the best position to defeat potential claims of ADA discrimination in the future.
  2. Don’t look for magic words. Remember that while an employee must affirmatively request a reasonable accommodation, there is no specific language that must be used to prompt an employer to begin the interactive process. As soon as the employee expresses that he cannot perform the essential functions of his job because of a disability, whether formally or informally, it is time to begin asking questions. If you need information from his doctor, get it (keeping in mind that you are interested in his ability to do the job and not a lot more).
  3. Talk to your core decision makers. After you are fully aware of the employee’s limitations, communicate with HR and other necessary management personnel in the employee’s department to determine what options are available and how you will be impacted by implementing such options. Once you have decided on an accommodation—and especially if you have decided that you can’t provide an accommodation—talk with legal counsel to review what your obligations are under the ADA and ensure that you have considered all sides and have properly documented the interactive process.
  4. Accommodate if you can, and clearly document if you cannot. Make sure your employee fully understands that you want to work with him. If you cannot accommodate him in his job, look at vacancies and explain those options.

Employers can’t always reasonably accommodate an employee’s disability. Hopefully, by consistently using these strategies on a case-by-case basis, you can avoid this growing area of litigation.

“I Need to Work from Home” -- Telecommuting May Be Your ADA Reasonable Accommodation AlternativeDoes the Americans with Disabilities Act (ADA) require you to allow telecommuting? If the employee’s job, like most jobs, involves attendance and teamwork as essential functions, the answer is likely no. However, more and more employers are allowing telecommuting, and most employees welcome the opportunity to telecommute.

If an otherwise qualified employee has a disability, you cannot reject telecommuting out of hand, even if you have no other telecommuters. The ADA requires employers to engage in an interactive process to evaluate a potential reasonable accommodation to the disability. So, be prepared with an established procedure to evaluate the request closely to be in line with the ADA.

What to Do

If you receive a request for a telecommuting arrangement based on a disability, consider the following steps:

1) Is the employee disabled?

A telecommuting request may be your first notice of a disability and you are entitled to get the details. Under the ADA’s interactive process, the employer should discuss the employee’s limitations, requirements, and duties—focusing on the employee’s abilities and job duties. The employer can request documentation or input from a healthcare provider to substantiate the condition. Is the condition temporary or long term? Examples of conditions (from some actual cases) that have raised ADA-based telecommute issues include: asthma and COPD aggravated by certain smells in the workplace, irritable bowel syndrome, depression and anxiety attacks exacerbated by the workplace, and Delayed Sleep Phase Syndrome.

2) What are the essential functions of the employee’s job?

Would telecommuting actually work for this particular employee? Are physical presence, in-person communication, and teamwork essential functions of the job? Does the employee have the technological infrastructure at home (computer, dependable internet access, printer, etc.) to do his or her job? Do you have the IT capabilities and overall resources to make the arrangement viable? How about work-related travel for the employee? And there may be confidentiality concerns if the employee’s job requires the handling of sensitive or proprietary information outside the workplace. Whether physical presence is an essential requirement of the employee’s position – a fundamental duty as opposed to a marginal duty – will be a critical determination. Remember that you do not have to remove any essential job duty to allow an employee to work at home. Further, courts have held that only the employer, not the employee, gets to determine what job functions are essential.

In this arena courts examine the job duties and whether physical presence is essential. The court has found that an employer did not have to allow an employee with irritable bowel syndrome to telecommute and commented that “regular, in-person attendance is an essential function … of most jobs, especially the interactive ones.” A year or two later, that same court remarked that while regular attendance might not be an essential function of every job, exceptions “will be relatively rare.” Other courts, including the Fifth Circuit  and a district court in Pennsylvania, have found that regular attendance is an essential function of an employee’s job. Other courts, including the 11th Circuit and the D.C. Circuit, have been a bit friendlier to telecommuting and required a more stringent, fact-specific inquiry for the employer to deny it as a reasonable accommodation. Because a job’s specific requirements will be examined closely, it is a good idea to regularly review and update job descriptions to fully reflect the current duties. Written job descriptions, along with statements from the employer, will be considered as evidence of a job’s essential functions.

3) Are there other options besides telecommuting?

Would moving the employee to another location at work, restructuring the job, or a modified work schedule solve the problem? Notably, even the EEOC acknowledges  that an employer does not have to allow telecommuting if there are other reasonable, equally effective accommodations available, even if telecommuting is the employee’s preferred choice. Employers should carefully assess whether telecommuting resolves the workplace issue and if it is the only accommodation available. If working from home is the only possible reasonable accommodation, you will have to determine whether physical presence in the workplace is an essential function of the job.

4) Don’t forget to consider transfer to a vacant job.

If you can’t provide the requested telecommuting accommodation, remember that you have to consider whether you have a vacant position the employee can perform, with or without an accommodation. Although telecommuting may not work in the employee’s current position, be sure you don’t have vacancies (even at lower pay) that would permit it. If you don’t have vacancies, you don’t have to create one.

Additional Considerations

Several other points need to be considered in a potential telecommuting arrangement:

  • Consider wage and hour concerns. If the employee is non-exempt under the FLSA, put procedures in place to limit and approve overtime. The FLSA applies just as much in a telecommuting context as it does with the traditional workplace.
  • Be consistent. Your determination as to the disability-related telecommuting request should be consistent with the situation for other employees. In other words, if a non-disabled employee in the same position has been allowed to telecommute, and the disabled employee’s request is denied, that could create a problem.
  • Think about a policy. Employers who are dealing with telecommuting requests (both for disabled and nondisabled employees) should consider a formal telecommuting policy. It needs to address a number of issues, such as workers’ compensation coverage and who is responsible for managing the arrangement.

With technological advances and many industries becoming increasingly decentralized, requests for telecommuting could become more frequent. With that in mind, employers need to establish a well-thought-out procedure for addressing ADA-related requests for telecommuting accommodations.

If you have employees or are doing business with individuals in the European Union, on May 25, 2018, you will be subject to some new regulations. The General Data Protection Regulation (GDPR) sets a new, heightened standard for data collection of citizens in EU countries, and many companies inside and outside of Europe will need to ensure that their systems and processes comply with a data protection statute that will be among the strictest in the world. There are specific provisions that apply to employee data.

The Basics

The GDPR applies to all companies processing and/or holding the personal data of data subjects residing in the EU, regardless of where the company is physically located. Even companies without an EU presence will be subject to the new rules whenever: (1) an EU resident’s personal data is processed in connection with good/services offered to him/her; or (2) the behavior of individuals within the EU is “monitored.” Additionally, violations of the GDPR could result in fines of up to 4 percent of a company’s annual global turnover or almost $25 million (20 million euros), whichever is greater.

Dealing with Your EU Employees’ Data

A key element of the GDPR is its heightened requirements for consent by employees for the processing of their personal data. Under the GDPR generally, consent must be freely given, specific, informed, unambiguous, and revocable. The GDPR, however, also acknowledges the limits of consent in situations where it cannot be freely given.

Article 29 of the Data Protection Working Party, an advisory body of representatives from the data protection authority of each EU Member State, outlines guidance on consent under the GDPR. These guidelines specifically acknowledge that an imbalance of power exists between an employer and an employee. Unlike consumers and customers who can provide voluntary consent for data processing, an employee will be unlikely to feel free to deny consent to data processing without fear of reprisal. For example, an employee may not feel free to refuse to fill out an assessment form or to refuse to consent to camera monitoring in the workplace when it could result in his or her termination.

Despite this imbalance of power, Article 29 acknowledges that there may be certain situations where an employee can freely consent. These exceptional circumstances can occur only when the employee is able to refuse consent with no fear of adverse consequences. As an example, Article 29 outlines a scenario where a film crew needs to film in certain office spaces. The employer requests consent from the employees sitting in that area to be filmed. If the employees who do not wish to be filmed suffer no consequences and are permitted to work in another part of the building during the filming period—that would be acceptable consent.

If consent in the employment context can be used only in exceptional circumstances, employers must find another legal basis to process their employees’ data. These additional legal bases include processing employee data when: (1) required for the performance of an employment contract, (2) required by law, or (3) furthering an employer’s legitimate interest. Furthering an employer’s legitimate interest requires the employer to perform a privacy impact assessment – balancing its legitimate interest with the employee’s privacy rights and documenting that the legitimate interest outweighs the employee’s privacy rights.

Next Steps

If you are going to be subject to the GDPR, you should review your employee documents (such as employment contracts or any permissions for data processing) to ensure they do not depend on the employee’s consent. For current employees, you may wish to provide new data processing notices outlining the additional legal bases for data processing. For new hires, you may wish to provide updated employment contracts and other documentation that outline the additional legal basis for data processing identified above. Employers should remain alert that under the GDPR consent alone may be insufficient for data processing in the employer/employee context.