ac-com-mo-date

verb

to make suitable or consistent; adapt

This simple word, or the lack thereof, is costing a California non-profit, the Asian American Drug Abuse Program, Inc. (AADAP), a lot more than a broken New Year’s resolution. In a recently returned special verdict, California jurors awarded Della Hill a staggering $4.5 million against her former employer AADAP. Hill, a counselor at AADAP, was fired from her position while out on a medical leave that was extended due to an onslaught of depression. Following her dismissal, Hill sued AADAP, mainly alleging violations of the California Family Rights Act (FRA) and the Fair Employment Housing Act (FEHA). She also threw in claims alleging failure to pay minimum wage and fairly compensate for overtime work.

The Fine Print

New Year, Same Accommodations…Employer Forced to Shell Out Millions for Failure to Accommodate Employee on Disability LeaveHill began at AADAP in 2011.During the New Year holiday of 2015, Hill broke her humerus—that’s a bone in her arm—and immediately began medical leave. Not long after, Hill was diagnosed with major depression and needed more than the 12 weeks protected by the FRA (all certified by her doctor to AADAP). When Hill’s 12 weeks of leave was up, AADAP terminated her for “failing to return from her medical leave.”

Hill’s complaint alleged that AADAP’s actions violated the California FRA and FEHA. Hill argued, and the jury concurred, that she was fired because of her physical and/or mental disabilities, and in retaliation for her taking protected leave for medical treatment.

Moreover, under the FEHA, Hill alleged that AADAP failed to reasonably accommodate her disability. The jury determined that Hill would have been able to perform the essential duties of her job (or a similar vacant position) with reasonable accommodations. The jury also found that AADAP, despite its knowledge of Hill’s circumstances, did not take reasonable steps to communicate with Hill about her disability, her leave, or potential accommodations to facilitate her return. Further, according to the jury, Hill’s proposed accommodations would not have created undue hardships for her employer.

The Big Picture

Although Hill’s case is brought under California laws, the implications of the verdict extend well beyond the borders of the Golden State.

First, AADAP is a non-profit. Given the sheer size of Hill’s award, it follows that juries (at least in California) won’t hesitate to penalize employers, non-profit or otherwise, in an employment case. Keep in mind only $546,000 of the verdict was attributable to back and front pay. The jury gave Hill over $1.9 million in compensatory damages and, because the jury found AADAP acted with malice, it tacked on an additional $2.6 million in punitive damages. The best sense is bought sense, but it’s safe to say that AADAP has bought more than enough for other employers to share. Learn from this scenario: Be very careful with employees taking medical leave or needing reasonable accommodations, and work with the people who work for you.

Also, the jury was apparently peeved (to the tune of millions) by its belief that AADAP failed to engage in the interactive process. For those of you not in California, the ADA requires an interactive process and it is a remarkably easy procedure to shortchange. Under the interactive process, employers are required to determine what reasonable accommodations are necessary so an employee can perform essential job functions. In this case, as in any other, there are always two sides to the coin, and we don’t know what evidence that AADAP presented that the jury may have ignored. However, an ounce of prevention would have been worth a pound of cure, and AADAP may have fared better if they could have produced a comprehensive paper trail of their interactions with Hill.

So What Does This Mean for Employers?

In a phrase, “CYA” — cover your accommodations.  In the Hill case, there was apparently enough evidence for the jury to conclude that AADAP did not engage in the interactive process. Learn from its mistake, and save your company the $4.5 million payout by taking these steps:

Create a paper trail. As soon as an employee requests leave or accommodation, document it. Then, send some type of correspondence acknowledging its receipt to the employee who submitted the request.

Follow-up. It’s not enough to say that you received the request. Investigate. Ask questions. Request additional information about the impairment—within reason—to find out what the employee’s doctor says she can (or cannot) do.

Talk it out. This is not a one-sided conversation. Speak with the employee, and get his feedback and suggestions on how you can accommodate his needs while also ensuring that your business productivity and continuity is preserved. Involve the employee’s doctor or your company doctor as appropriate. Keep an open mind about what accommodations may work (and don’t forget that the EEOC thinks–and some courts agree–that leave is a reasonable accommodation).

Create (another) paper trail. After you confer with the employee, send another correspondence outlining what you discussed, whether you reached a viable solution, and what action steps you both have to take going forward. Don’t reach the end of the process until you are sure there is no reasonable accommodation.

The duty of accommodation is continuing; it doesn’t stop after the first request or the first meeting. Each employee and her circumstances will present unique sets of problems that require constant vigilance, attention, and awareness on the employer’s behalf.

Happy Thanksgiving and the Many Things for Which We Are ThankfulBefore everyone gets out of the office to their various homes and families to celebrate the holiday, we wanted to review the year and count our blessings. Not only are we thankful that our families and colleagues in our Houston and Tampa offices weathered the storms safely, we are also thankful for the following legal stuff:

1. The DOL is not about to change the wage and hour laws.

Does anyone else remember the panicked calls last Thanksgiving week when the Texas judge put the brakes on a regulation that was going to increase the salary basis test? We are all thankful that will not happen this year. Although we still don’t know what, if anything, will happen on that front we will keep you posted.

2. Finally a court has said the ADA is not about leave.

Despite the EEOC’s insistence otherwise, the Seventh Circuit stepped up to the plate and said extended leave is not a reasonable accommodation under the ADA. As we all know, you still need to consider if a limited amount of leave will get the employee back to work but we are thankful that we have some new case law on this front.

3. Harvey Weinstein doesn’t work for us.

This story has horrified many but given all employers a wake-up call. We are grateful for the opportunity to train more people and try to make America a better place to work.

4. The NLRB has a new direction.

Maybe the new Board won’t tell employees that it is okay to swear at your boss on Facebook or nitpick employer policies quite so much.

5. You’re not going to be the employer of someone else’s employees.

DOL has withdrawn its prior guidance on independent contractor and joint employer liability, and Alabama’s Rep. Byrne has introduced a bill to “Save Our Small Businesses.”

6. Legalized marijuana has made questions about drug policies so much more interesting.

Even though it isn’t legal in many states, the fact that employees can legally ingest marijuana many places (including Florida) and take their chances on the looming random drug screen has spiced up our lives. While the law will continue to develop in this area, we are grateful for the very interesting questions we have received.

7. People other than our mothers read this blog.

(Okay, some of our moms are reading and might boost the numbers a little bit.) Since 2016, we have published more than 130 articles and had more than 230,000 reads, according to aggregate reports from Lexology and JD Supra. We have received recognition in The Expert Institute’s Best Legal Blog 2017 competition, the ABA Journal’s Web 100 Ranking, and numerous quotations in other publications. We enjoy bringing you this information and love it when you tell us it is helpful or tweet it to someone else.

Happy Thanksgiving from the Labor & Employment Insights blog team!

Changing of the Leaves: EEOC Again Pushes for Additional Leave as ADA AccommodationWe have said it before — the EEOC believes that leave is a reasonable accommodation and automatic termination when FMLA leave runs out violates the Americans with Disabilities Act. Even though at least one federal court has made clear it disagrees, the EEOC continues to press the point and has recently filed a lawsuit against the Blood Bank of Hawaii for failure to provide reasonable accommodations for and then firing employees who required additional leave time for their disabilities.

The Allegations

The EEOC contends that the blood bank had “a rigid maximum leave policy” under which employees with disabilities who ran out of FMLA leave were not granted a leave of absence as a reasonable accommodation. The complaint also alleges that employees returning from leave were required to return to work without limitations. As a result, some folks lost their jobs. The EEOC thinks this violates the ADA.

According to the EEOC:

“Employees should never be terminated or forced to resign simply because they need additional leave for their disabilities.”

Takeaways

The EEOC is looking for disability cases. It has issued guidance on leave as a reasonable accommodation, and going after inflexible leave policies is one of six national priorities identified by the Strategic Enforcement Plan. With that in mind, make sure you don’t end up as a target.

  1. Check your policies. If any of them state or suggest that an employee who exhausts FMLA leave will immediately be terminated, change them. The EEOC has made it clear it wants no bright lines.
  2. Train your managers and supervisors. Make sure people understand that the company will always consider a reasonable accommodation. It might be some amount of leave, it might not. What you want to avoid is a supervisor (or an HR manager) saying “We always terminate people who can’t return from leave—no exceptions.”
  3. Check you return to work letters. Eliminate any language that says “you have to return to work without restrictions.” That kind of talk will get you sued. No matter what the restriction, you have to consider whether you could provide a reasonable accommodation.
  4. Always consider vacant positions. The ADA requires that you consider whether the employee can perform (with or without a reasonable accommodation) the essential functions of a vacant position for which he or she is qualified. You may not have a vacancy, and you don’t have to create one—but you always need to check. If the employee can perform the vacant position (even if it pays less), offer it as a reasonable accommodation. Also, it doesn’t have to be a temporary assignment.

The ADA is tricky and every situation is different. Have a process to follow but don’t rely on bright lines.