Crosstown Traffic! Facts Surrounding Employee’s ADA/FMLA Request to Avoid Bad Traffic Not Enough Not all requests for accommodation or FMLA leave will fit into neat boxes like “pregnancy” or “knee surgery.” Because the ADA definition of a disability includes any impairment that affects a major life function, employers are starting to see some more creative requests around the margins. In Trautman v. Time Warner Cable Texas, LLC, the Fifth Circuit recently dealt with an employee’s requests under both the ADA and FMLA to address her “anxiety/panic attacks” related to driving in bad traffic. Buckle up, while we try to unpack this situation!

Road Anxiety—ADA Path

Heather Trautman worked at Time Warner from October 2012 until April 2015 in a position that required her to be in the office to interact with other members of her team at certain times. After she became pregnant in 2013, she suffered several panic attacks while driving to or from work. Her obstetrician suggested that she leave work earlier to avoid driving in heavy traffic. Although Ms. Trautman did not submit an ADA accommodation request for her driving issues, her supervisor agreed to let her temporarily modify her work schedule.

After Ms. Trautman gave birth, she took FMLA leave, returning to work in March 2014. She told her supervisor that she was struggling to transition her baby to bottle feeding and asked if she could temporarily work from home. Her supervisor requested a doctor’s note but agreed to the temporary change—and Ms. Trautman worked from home for the remainder of 2014.

In December 2014, Ms. Trautman’s new supervisor told her she needed to resume working from the office starting in mid-January. The new supervisor was concerned Ms. Trautman was not performing necessary job duties that required her presence in the office. Ms. Trautman asked that she be allowed to work from home, and her supervisor said not unless she had a doctor’s note and a formal accommodation request approved by HR.

At that point, Ms. Trautman submitted a formal ADA accommodation request asking to work from 7 a.m. to 2 p.m. in the office and the remaining hours at home. The reason given was that her family physician said she had functional limitations of “anxiety/panic attacks related to traffic/driving.” The 2 p.m. departure was to allow her to avoid the heavy traffic. Time Warner denied the request because her job required her to work from the office during normal business hours. However, it did offer to adjust her schedule to 7 a.m. to 4 p.m. so she could leave the office earlier. Significantly, Ms. Trautman never tried the 4 p.m. departure time. Instead, she submitted another letter from her physician, and this time said she would be willing to leave the office at 11:00 a.m., so she could accommodate any busy afternoon work from her home. Time Warner again tried to get her to consider the 4 p.m. departure time, or even public transportation or ride sharing, to avoid her anxiety. Ms. Trautman again refused to try the 4 p.m. exit and also refused any other accommodations.

Trautman Takes Another Route—Intermittent FMLA Leave

With her ADA accommodation request at a standstill, Ms. Trautman began another plan—she started submitting intermittent FMLA leave requests that would let her depart the office early. She made those requests through Time Warner’s third-party administrator for leave requests—Sedgwick Claims Management Services. Ms. Trautman submitted paperwork from her physician saying that she needed to leave the office no later than 2 p.m. when her high-traffic anxiety flared up. Sedgwick approved her for one hour of FMLA leave per week for six months, but denied her request for any FMLA leave that would exceed that amount.

Ms. Trautman was missing work for numerous reasons at this time and received a written warning for her attendance. Her supervisor checked with Sedgwick to make sure that they were not counting FMLA leave against Ms. Trautman. Ms. Trautman continued to miss work. She was issued another warning pointing out that she had been absent for 22 days in the first three months of the year. She was warned that another write-up would result in termination. On the same day she received the write-up, she submitted a new doctor’s note to Sedgwick seeking an increase in her FMLA leave. Sedgwick agreed to increase the leave, but only as of the date they received the new paperwork — it did not retroactively approve any of her past absences as FMLA-covered. Ms. Trautman then began to take her increased leave. However, her unapproved absences continued, and Time Warner ultimately terminated her for excessive absenteeism.

Ms. Trautman filed suit claiming she was terminated in retaliation for her FMLA requests and that Time Warner failed to reasonably accommodate her ADA request relating to her anxiety about driving in heavy traffic. The lower court granted summary judgment on all of Ms. Trautman’s claims, and she appealed.

Fifth Circuit Drives it Home

The Fifth Circuit found that in examining whether Ms. Trautman’s absences were excessive, Time Warner had checked with Sedgwick to see if the time she missed was covered by the approved FMLA leave. It also noted that Time Warner’s reason for terminating her, excessive absenteeism, was not a pretext for FMLA retaliation. An employee’s failure to show up for work is a legitimate reason for firing her. The Fifth Circuit also stated that even if you subtracted the FMLA leave that eventually was approved, Ms. Trautman’s overall absences far exceeded the limits in Time Warner’s attendance policy. As such, there could be no claim for retaliation under the FMLA.

With regard to her ADA claim, the Fifth Circuit again found that there was no pretext in her termination. On the failure to accommodate claim, the Fifth Circuit noted Ms. Trautman did not engage in a flexible, interactive discussion about her accommodation request. She requested that she be allowed to leave at 2 p.m. When Time Warner denied that request, Ms. Trautman instead asked to leave at 11:00 a.m. The court stated “that’s not the stuff of flexible, interactive discussions.” It also bothered the court that Ms. Trautman never looked into other options, such as additional breaks or ride sharing. In the end, the court stated “neither the ADA nor the 2008 amendments to the ADA permits an employee to leave work early and then sue her employer for being unreasonable.”

How Does This Affect the Rules of the Road on FMLA and ADA?

This decision didn’t really alter the landscape, but it is a good example of an employer that did a decent job of trying to accommodate an employee who was asking for more than the company could grant. The Fifth Circuit noted several times in the opinion that Time Warner had allowed her to alter her work schedule, even though they weren’t absolutely required to do so. Time Warner apparently did a good job of communicating with Ms. Trautman, even if it was denying what she wanted. In addition, the court also found it significant that every time Ms. Trautman’s supervisor was looking to discipline her for being absent, she first looked to make sure those absences weren’t covered by the FMLA.

One of the lessons to be learned here is that when it comes to mental health, especially anxiety, employers need to be very careful to follow their usual procedures on ADA accommodation requests. In addition, even though Ms. Trautman had been working from home for the better part of a year, Time Warner had appropriate evidence to show that actual presence in the office was an essential function of the job. That evidence enabled the Fifth Circuit to state that failing to show up for work when required can be a basis for termination.

3 Steps to Figuring Out ADA Reasonable Accommodations for Mental IllnessWhat do you do when an employee discloses that he or she is stressed out and needs a reasonable accommodation under the Americans with Disabilities Act, but the requested accommodation strikes you as unreasonable? If you are reading this and thinking “that won’t happen to me—all of my employees are well-adjusted,” think again. The experts tell us that one in five adults is living with a mental illness, and 18 percent of adults in the U.S. suffer from an anxiety disorder. This means that if you haven’t yet had an employee disclose a mental disability, it is probably just a matter of time. In my practice I am seeing more and more requests for reasonable accommodations for stress and anxiety and, unfortunately, this is not always an easy process to manage.

We have talked before about your general obligations under the ADA. So, as a brief refresher, here are some steps to follow once your employee says he or she is suffering from a mental disability and needs a reasonable accommodation:

STEP ONE: Engage in the interactive process.

The ADA requires that you engage in an interactive process, so talk with the employee.

  • With which essential functions does the employee struggle?
  • What reasonable accommodations does the employee think would enable him or her to perform those functions?
  • What, if any, restrictions has the doctor provided?

Your first discussion is for you to collect information, so let the employee do the talking. Don’t assume that this employee’s depression/anxiety disorder/PTSD is the same as another employee’s or anyone else’s. You can and should get the employee’s doctor’s input on this. I have found that what employees want and what their doctors say they need are not always the same thing. Keep your questions about the disability job-related and consistent with business necessity. This is a process, so it could take several conversations. Be sure to document it thoroughly.

STEP TWO: Determine if the requested accommodation is reasonable.

A reasonable accommodation enables the employee to perform the essential functions of a job. A request is not reasonable if it eliminates an essential job function, poses a direct threat of imminent harm, or imposes an undue hardship.

Keep an eye on the essential functions of the job. You do not have to remove essential functions and create a new job for the employee. You may, however, have to reassign or eliminate non-essential functions. In assessing whether the employee’s performance of the job poses a direct threat, be objective. Get expert input on whether any proposed changes would work or if they would increase danger. Whether the proposed accommodation poses an undue hardship, such as by dramatically increasing costs or affecting productivity, is also a consideration, but in practice, that can be tough to prove.

Look carefully at the employee’s requested accommodation and if you don’t think it is reasonable, offer an alternative. Again, this is an interactive process. Feel free to get the doctor’s input.

STEP THREE: If you can’t accommodate, is transfer or leave an option?

If you cannot come up with a way for the employee to safely perform the current job, do you have a vacancy in which you can accommodate the disability? You do not have to displace someone or create a new position, but you should consider all vacant positions. If the employee is qualified for the vacant job, offer it as a reasonable accommodation. The employee does not have to compete for the position but does have to take the position as it is—even if it pays less, is on a different schedule, etc. Unlike an FMLA-related transfer, this is not a temporary move.

If you can’t accommodate and have no vacancies, your last resort is to determine if leave is a reasonable accommodation. Ask the employee if taking some leave would enable him or her to return to work and do the job’s essential functions. With mental disabilities, this could be a period of inpatient or outpatient treatment or medication adjustment. You should consider this option even if there is no FMLA available and you don’t have a company leave policy. It should be well-defined (i.e., one week, one month), and you do not have to grant open-ended leave.

If you can’t accommodate, and transfer or leave is not an option, you may have to terminate an employee. Before taking that final step, make sure you have properly documented your process and can prove how reasonable you have been. Of course, I think you should have your employment lawyer on speed dial but at the very least, talk to your lawyer before you terminate.

“I Got the Juice” – Sixth Circuit Affirms Verdict in Favor of Diabetic Employee Alleging ADA DiscriminationEngaging in the ADA interactive process is likely the most significant aspect of managing employees with disabilities. Failing to do so can truly make or break an employer’s ability to protect itself from disability discrimination claims. Employers must remember that one policy or practice does not fit all employees, especially ones with known disabilities. The Sixth Circuit’s opinion in Equal Employment Opportunity Commission v. Dolgencorp, LLC illustrates the dangers of applying neutral employment policies to employees who request reasonable accommodations that may conflict with such policies.

Background

Linda Atkins was a lead sales associate at Dollar General who suffered from type II diabetes and occasionally experienced low blood sugar. If and when she had a diabetic episode, Atkins had to quickly consume glucose to avoid fainting or having a seizure. Because of her condition, Atkins asked her store manager if she could keep orange juice at her register in case of an emergency. The manager told Atkins that Dollar General’s policy prohibited having food at a register. In fact, the “Personal Appearance” policy stated that employees “should not chew gum or eat/drink, except during breaks (which should not be taken on the sales floor, at registers, etc.).”

In late 2011 and early 2012, Atkins suffered two hypoglycemic episodes while she was working alone. Because there were multiple customers in the store both times, Atkins could not go to the break room where she kept orange juice in a cooler. Instead, she took a bottle of orange juice from the store cooler and drank it. After each episode ended, Atkins paid for the orange juice and told the store manager what happened. Nevertheless, when Dollar General’s district manager and regional loss prevention manager conducted an audit and learned about what Atkins had done, they terminated her for violating the company’s grazing policy, which forbids employees from consuming merchandise in the store before paying for it.

Atkins filed a disability discrimination charge with the EEOC, and the EEOC filed a lawsuit against Dollar General alleging failure to provide a reasonable accommodation and discriminatory discharge under the ADA. After Atkins intervened in the lawsuit as a plaintiff, litigation proceeded to trial where a jury found in favor of Atkins on both claims, awarding her over $27,500 in back pay and $250,000 in compensatory damages. The district court awarded Atkins’ lawyers over $445,000 in attorney’s fees and almost $1,700 in expenses. Dollar General appealed.

Sixth Circuit Upholds Jury Verdict Regarding ADA Claims

On appeal, Dollar General first argued that it did not have a duty to accommodate Atkins because she could treat hypoglycemia in other ways, e.g., glucose tablets, honey, candy, or peanut butter crackers. Siding with the jury, the Sixth Circuit stated that the jury could have found that Dollar General’s “Personal Appearance” policy also prohibited employees from consuming Dollar General’s suggested treatment alternatives. More importantly, the Sixth Circuit highlighted that the policy included a disclaimer that permitted disability-related exceptions depending on the circumstances. Despite this disclaimer and Atkins’ request for an exception because of her diabetic condition, her store manager “categorically denied Atkins’ request, failed to explore any alternatives, and never relayed the matter to a superior.” Such a response was not consistent with Dollar General’s duty to explore the nature of Atkins’ limitations, if and how those limitations affected her work, and what type of accommodations could be made. Consequently, the jury had a legally sufficient basis to conclude that Dollar General failed to provide Atkins reasonable alternatives to keeping orange juice at her register.

Regarding Atkins’ discriminatory discharge claim, Dollar General argued that it had a legitimate, non-discriminatory reason for firing Atkins, its anti-grazing policy. The Sixth Circuit swiftly discounted this argument, stating that “a company may not illegitimately deny an employee a reasonable accommodation to a general policy and use that same policy as a neutral basis for firing [her].” Furthermore, the Sixth Circuit emphasized that a neutral policy was irrelevant because Atkins had presented direct evidence of discrimination, i.e., failing to provide a reasonable accommodation.

The Sixth Circuit concluded its analysis by refuting Dollar General’s final argument that Atkins did not present evidence of animus toward the disabled. The Court held that proving animus was not necessary and an employer violated the ADA whenever it terminated an employee on the basis of disability. Ultimately, the Sixth Circuit upheld the jury verdict regarding both of the ADA claims, and Atkins prevailed.

Takeaways

This decision does not mean that you cannot apply neutral policies such as personal appearance or anti-grazing to disabled employees. However, employers who apply policies without regard to an employee’s disclosed disability do so at their own risk. Remember that you and your employee are a team that can only succeed when everyone can perform their jobs in a supportive and efficient environment. When faced with an employee who requests a reasonable accommodation, think about the following:

  • Would the requested accommodation violate a policy? Don’t ignore your policies that may prevent you from granting an employee’s request, but think about whether you need to make an exception to enable the employee to keep doing his or her job. If the employee’s request violates a policy, think about alternatives that would not violate the policy.
  • Solicit the employee’s doctor’s input when necessary. If you need a second opinion, get it.
  • Don’t forget that if you cannot provide a reasonable accommodation in an employee’s current position, you should determine if there are vacant positions for which the employee is qualified in which you could provide the accommodation.
  • If you simply cannot grant a requested accommodation, consult with senior management, human resources, and your attorney to assess whether not providing the accommodation would be an undue hardship or whether you can otherwise defend this decision.
  • Finally, document your discussion with the employee, and be sure it is clear that you did all you could to make it work.

Courts and juries like employers who try to figure out ways for disabled employees to keep working. Make sure you fit that mold before you end up in court.