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

Hill 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.