Indefinite Leave, Quirky Question # 123

Quirky Question # 123:

Here’s a problem we encounter periodically.  We have a large workforce (in excess of 100,000 employees).  An employee goes out on disability leave, with an expected return date of X.  As that date approaches, we are advised that the employee will need additional time away from the job.  We try to get precise information regarding when the employee actually will be back at work, but we just don’t seem to get a straight answer.  Some times, we are provided notes from physicians that simply push the return dates out to some indefinite point in the future.  Some times, the dates specified in the doctors’ notes come and go, without the employee returning to work.  The employee then advises us that he or she has experienced “complications” or that the “recovery is taking longer than anticipated” or that “the initial problem has caused related problems that will require additional time off,” etc.  Arrgghhh!

How long do we have to let the employee stay out on disability leave?  At some point, can we just give a firm date and state if the employee is not back at work by that date, he is fired?

Dorsey’s Analysis:

You are not alone.  The fact pattern you describe reflects one of the most common frustrations employers have with the Americans with Disabilities Act and other statutes bearing upon this issue – how do you deal with an employee out on an indefinite leave of absence?  Several other questions are implicit in this inquiry: a) how long can an employee remain out an leave; b) must the employer keep the job open for him or her; c) what should be done if the temporary replacement employee outperforms the employee on leave; d) must the employer find a “new” job for the employee when he or she is ready to return to work? None of these questions has an easy answer.

Let’s consider the legal issues you may wish to evaluate.  First, the Americans with Disabilities Act (ADA) creates a number of different issues for your consideration.  In most instances, the date your employee will return to work from a disability-related leave is a subject upon which you and your employee can reach agreement.  In certain situations, however, as in the question you pose, the return date seems to change constantly, some times legitimately, some times not.

Second, the issue of when your employee returns to work may implicate the Family and Medical Leave Act (FMLA).  Assuming your employee qualifies to receive benefits under this statute, he or she is entitled to 12 weeks of unpaid leave in a 12-month period.  Administering the FMLA becomes complicated when the employee’s reason for the leave (leave for himself/herself or a qualifying family member) is intermittent, perhaps spread out over a period of many months.  Ultimately, however, though calculating the time taken off may be somewhat difficult, the FMLA leave does have an endpoint.

Third, if your employee was injured while working, an entirely different statutory scheme comes into play – your state’s Workers’ Compensation statute.  For a work-related injury, your employee’s return to work date will depend on a variety of factors, including the nature of the injury, whether your employee is permanently or partially disabled, whether your company could provide your employee a job that addresses whatever limitations may have been imposed on your employee by his or her physician, etc.

Fourth, with respect to all three of these inter-related statutory schemes, you have to be sensitive to a potential retaliation claim.  If your employee has asserted his or her rights under the ADA, the FMLA, or a state worker’s comp statute, and your company then takes adverse action against the employee, you risk a claim of retaliation.  This does not mean that your company cannot, or even should not, take adverse action (such as termination), you just need to base your decision on sound, non-retaliatory reasons.

But, for the purpose of your question, let’s assume the your employee was not injured at work, and did not seek any leave from your company under the FMLA.  For the purpose of your question, I will assume that your employee has been absent from work due to a qualifying disability and has been discussing with your company, albeit without success, regarding when he or she should be able to return to work.

Even if your employee has a qualifying disability, which your company has been trying to accommodate by affording the employee an extended leave, this does not mean you must keep a job open indefinitely, or that your employee has the freedom to return to the job at any time in the recovery process.  This conclusion is grounded on the issue of whether your employee could perform the essential functions of the job, with or without a reasonable accommodation.

For example, in Peyton v. Fred’s Stores of Arkansas, Inc., No. 08-2346 (8th Cir. April 15, 2009), the appellate court examined a factually difficult case involving an employee suffering from ovarian cancer.  She informed her employer of her need to for hospitalization, and her fiance’ provided the employer with a note from her physician, “Floyce Peyton needs to be off work at least [until] 1/9/06.  Return date unknown.”  Plaintiff had surgery on January 12.  Her employer contacted her at the hospital to inquire how long she would be on leave.  Peyton allegedly said that she did not know, although she was heavily sedated at the time and could not recall the conversation.  On January 14, just two days following the surgery, the employer terminated the plaintiff’s employment.  After six months of chemo-therapy, plaintiff had recovered sufficiently to return to work.  By that time, however, her job had long since been given to another employee.

In the litigation, the defendant company agreed that Peyton had been disabled by her illness and subsequent treatment.  Thus, the sole focus of the litigation was whether the plaintiff could perform the essential functions of her job, either with or without a reasonable accommodation.  Peyton criticized the “interactive process,” which she argued her employer had failed to conduct.  Although the 8th Circuit considered (without deciding) the quality of the interactive process (or the lack thereof), the appellate court still found for the employer.

The court observed, “Despite the unfortunate circumstances of plaintiff’s illness, the ADA does not provide a recovery against her employer.  As noted, it is axiomatic that a person who cannot perform any of the functions of a job, with or without a reasonable accommodation, cannot, as a matter of law, be considered ‘otherwise qualified’ under the ADA.  That is the case here.”  The court noted that at the time Peyton had surgery and requested leave as an accommodation, she had no idea when she would be able to return to work.  The court stated, “her request for reasonable accommodation . . . is that defendant should have waited indefinitely to determine the full extent of her diagnosis, treatment and recovery.”  The court concluded that this claim “fails,” pointing out that courts recognize that employers “should not be burdened with guess-work regarding an employee’s return to work after an illness.”  The court cited to the 1999 decision of Browning v. Liberty Mutual Insurance Co., 178 F.3d 1043, 1049 (8th Cir.),

“Employers are not qualified to predict the degree of success of an employee’s recovery from an illness or injury.  To afford . . . protections of the ADA during the early stages of . . . recuperation from surgery . . . would be to burden [the employer] with the duty to see into the future.  We do not believe that such was the intent of Congress in passing the ADA.”

Finding that Peyton’s illness and surgery made it impossible for her to perform the essential functions of the job and that there was no reasonable accommodation that could have been offered, the appellate court affirmed the summary judgment grant for the employer.

As the Peyton and Browning cases illustrate, when an employee fails to provide an employer with a definite return date from a disability-based leave, the courts may conclude that the employee is unable to perform the essential functions of the job.  In these contexts, an employer would not violate the ADA if it elects to terminate the employee seeking indefinite leave as an accommodation.

Keep in mind, however, that some courts have held that a requested leave, even of many months, may constitute a reasonable accommodation.  These decisions often arise in the context of mental disabilities, such as an employee suffering from depression or PTSD.  In these cases, where the employee has specified a return date, even one several months away, some courts have found that type of accommodation to be reasonable.  At that point, the analysis moves into the separate question of whether a protracted leave is likely to cause an undue hardship, which the employer has the burden to establish.

Finally, even though your company may have the right to terminate an employee who is out on an indefinite leave, I suggest that you examine carefully whether you want to do so.  First, if the employee out on leave is a long-term employee with a substantial knowledge base about your company, you lose a lot by terminating that individual.  Second, depending on the position of the employee out on leave, the time it takes to find a comparably qualified employee and train that individual may be roughly equivalent to the time your existing employee is on leave.  Third, if you accommodate the employee out on leave, you may ensure that you have an incredibly loyal employee in your workforce, someone truly appreciative of the accommodation provided by your company.  Fourth, not only is the directly affected employee likely to be extremely loyal if you accommodate his or her leave request, your company also may enhance its good will with other employees, who respect the way in which the company has treated your employee on leave.

Let’s face it, the ADA is a statute that provides protections for everyone.  We are all just one drunk driver, one contaminated food product, one freakish accident, or one unexpected illness, from needing its protections.  The way in which an employer treats employees seeking an accommodation under the ADA, may say quite a bit about the values of the company, a fact that will not be lost on your employees.

Seasonal Affect Disorder, Quirky Question # 119

Quirky Question # 119:

One of our employees, who works in an interior cubicle, has advised us that she is suffering from Seasonal Affective Disorder (or SAD).  She has asked us to move her into an office with windows.  This hardly seems fair to our other employees.  Some have greater seniority.  Others have positions that are at substantially greater pay grades, with far significant responsibilities.  Yet very few of these employees have offices with windows.  What are our legal obligations?  Do we have to provide this employee with a window office?

Dorsey’s Analysis:

As you undoubtedly are aware, the first question bearing upon your analysis is whether your employee is a qualified individual suffering from a disability, as defined by the Americans With Disabilities Act (ADA).  We’ll revisit that issue in a moment, but even if you assume that your employee’s mental impairment, Seasonal Affective Disorder (SAD), constitutes a disability under the ADA, the next question is whether your employee can perform the essential functions of her job with a reasonable accommodation.  Assuming that she could perform the job, the third question is whether accommodating your employee suffering from SAD would cause your company an “undue hardship.” Your analysis of each of these issues should resolve the question you posed.

You have not provided much information regarding your employee or the specific job she performs. But, I infer from your question that you consider her to be a qualified individual. My inference is based largely on the fact that you have not referenced any performance deficiencies or described other inadequacies about her job qualifications. You have not stated how long your employee has worked for you, but note that the longer she has been employed, the easier it would be for her to demonstrate that she is qualified for the job, a fact your company recognized by continuing her employment. Of course, if her periodic performance reviews have been enthusiastic and complimentary, it will be even easier for her to demonstrate that she has the requisite job qualifications for continued employment.

The next question is whether an employee with Seasonal Affective Disorder has a disability as that term is defined under the ADA. SAD is a form of depression. Like other mental disabilities, however, individuals may experience it in dramatically different ways. It is unclear from the facts included in your question whether your employee is experiencing severe symptoms or something far less significant. Does the disability affect her ability to perform a major life function? Again, it is difficult to assess that issue based on the information you provided. But, a few of the questions you may want to explore include: how long has she suffered from SAD; what are the symptoms she experiences; is she on medication to address the symptoms; how long does the depression last; are there any remedies for the depression short of exposure to sunlight; is she under the care of a psychiatrist, psychologist, or other mental health provider; could the mental health care provider furnish his or her assessment of your employee, her condition, and the appropriate remedy; etc.

For the purposes of exploring this issue, I will assume that your employee has a cognizable disability under the ADA that affects a major life function – her ability to work. Assuming that to be true, the next issue is whether your company can accommodate her disability without experiencing an undue hardship. Before turning to that inquiry, let me emphasize that determining an appropriate accommodation requires an interactive process and dialogue with the affected employee. Keep in mind that there are no magic words that must be used. As you described, your employee advised you that she was suffering from SAD and proposed a solution that she felt would help her address that impairment – working in an office with exterior windows. An employee’s proposed accommodation is not the only accommodation that your company may wish to consider; your organization may, with input from your employee and her medical advisors (if any), as well as with input and guidance from knowledgeable individuals within your company, consider other equally effective accommodations for the disability your employee is suffering. By “knowledgeable” company representatives, I am referring to company medical personnel, HR representatives (who may know the types of accommodations your company has extended to other employees experiencing depression), and the employee’s managers (who are aware of how SAD has been affecting your employee).

It could be that the best (and most reasonable) accommodation would be to provide this employee an exterior office with direct sunlight, but there may be other equally effective solutions. For example, depending on the nature and severity of your employee’s SAD-based depression, perhaps the problem could be addressed by providing her periodic breaks in which she is permitted to spend time outside your building. Alternatively, she may be to address her depression symptoms by spending part of the day in a common area such as a cafeteria where there is natural sunlight. These and other ideas may be worth exploring with your employee and her health care providers.

Let’s assume, however, that the only accommodation that would adequately address your employee’s illness and symptoms is moving her from a cubicle to an exterior office. If that is true, you need to return to the question of whether this accommodation constitutes an undue hardship. Typically, “undue hardship” inquiries revolve around how much money a company must expend to accommodate an individual. That cost needs to be evaluated in the context of various other factors – how many employees are working at the company; what are the company’s revenues; is the company operating profitability; what impact would the expense of the accommodation have on the company’s profitability; and similar inquiries. In your question, however, you raised a couple of non-monetary considerations that you felt would be problematic for your company. Specifically, you noted that providing this employee an office with exterior windows could create resentment by employees who had greater seniority or employees who held senior positions with greater responsibility yet who also were relegated to interior, windowless offices. You raised the issue of whether this would “fair” to your other employees.

In my view, you may be underestimating the compassion of your other employees. Assuming that the employee seeking the accommodation is a hard worker and valued contributor to your organization, you may find that your other employees are less concerned about the accommodation she is seeking than you may think. At a minimum, you need to explore this issue in an appropriate way. I think it would ill advised for you to make an argument that your company could not accommodate her desire for a reasonable accommodation based solely on your assumption about the impact such an accommodation might have on the attitudes of her co-workers or the morale of the workplace. You will need more compelling evidence of undue hardship than your somewhat speculative assumptions about how others might react.

A recent case that sheds some light on similar issues is the case of Eckstrand v. School District of Sommerset, an October 2009 decision from the Seventh Circuit Court of Appeals. In that case, a lower school teacher suffering from SAD requested the school administrators to move her from an interior classroom to a classroom with exterior windows so she could experience natural sunlight. She explained that she suffered from SAD and that the condition was debilitating. Her explanations were supported by medical evidence.

Despite the fact that there were two classrooms, each with exterior windows, into which her class could have been moved, the school district was unwilling to offer her this accommodation. One classroom was occupied but the teacher in that room stated that she would be willing to switch rooms. The other classroom was unoccupied.

Eckstrand became increasingly depressed and repeatedly requested the school district to accommodate her. Although the school addressed some other, minor issues that Eckstrand stated exacerbated her condition, the administrators still were unwilling to grant the primary accommodation the teacher sought. Within a few months, Eckstrand had to take medical leave.

As described in the opinion, her medical condition was extremely serious. She “suffered from a significant inability to concentrate, organize her thoughts, retrieve words, make decisions, and focus on the needs of her students. She also experienced hypersomnia, racing thoughts, panic attacks, uncontrollable crying, inability to eat, and thoughts of suicide.” Even after she was on leave, Eckstrand’s condition continued to deteriorate, causing her to experience “post-traumatic stress symptomology.” She was unable to return to work and later sued the school for ADA violations and constructive discharge.

The trial court granted the school system’s motion for summary judgment, both on the ADA claims and the constructive discharge claims. The 7th Circuit reversed as to the former issue and affirmed as to the latter.

The Court of Appeals found that there was no question that Eckstrand had a disability and that she had made the school aware of it. As framed by the appellate court, the “critical issue” was whether Eckstrand “presented evidence that the school district failed to reasonably accommodate her.” The court concluded that Eckstrand had engaged in an interactive communication process with the school district and that the school district was responsible for the breakdown in that process.

The 7th Circuit noted that cases involving mental disabilities were particularly difficult because often times they involved medical conditions that were “non-obvious” to the employer. The appellate court observed that its past decisions had demonstrated that employees must “make their employers aware of any nonobvious, medically necessary accommodations, with corroborating evidence such as a doctor’s note or at least orally relaying a statement from a doctor, before an employer may be required under the ADA’s reasonableness standard to provide a specific modest accommodation the employee requests.” Not only did the appellate court find that Eckstrom had met that standard, at least from the point where she had provided a note from her physician, the court concluded that “[l]ittle hardship would have been imposed in providing Eckstrand an available classroom.” The court remanded the case for the jury to determine whether the school district had failed to accommodate her disability.

As noted above, however, the Court of Appeals did affirm the dismissal of Eckstrand’s claim that she had been constructively discharged, finding that Eckstrand had not shown that the “conditions of her employment even approached the intolerable levels normally required in constructive-discharge cases.”

Frankly, I am somewhat perplexed by the court’s constructive discharge analysis. The court found that Eckstrand had presented sufficient evidence to demonstrate that: a) she was suffering from a form of depression; b) the symptoms of her depression were severe, including suicidal ideation; c) she informed the school district of her condition and the seriousness of her symptoms; d) the school district could have alleviated this her problems and addressed her disability by offering her the accommodation she requested with “little hardship;” and e) it was unwilling to do so, without explaining rationally the basis for its refusal. In this context, I’m not sure what option Eckstrom had, but to quit. Accepting the validity of the medical analysis, Eckstrom would have been jeopardizing her life by continuing to work without the accommodation.

The Eckstrom decision provides an interesting analysis of this issue. The concurring opinion also is curious, seemingly suggesting that once Eckstrom’s mental health continued to deteriorate, she no longer was “qualified” to teach elementary school students. The majority, however, noted that it did not need to reach the issue of “whether a person, whose disability is aggravated by an employer, ceases to be qualified under the ADA once the disability has grown sufficiently severe.” Personally, I don’t think that judgment call is too difficult; if the employer is responsible for exacerbating an employee’s disability, it should not be able to avail itself of the defense that the employee ceased to be qualified for the job. This analysis would be self-evident if considered in the context of a physical, rather than a mental, disability. But, as the 7th Circuit opined, that issue has been reserved for another day.

In sum, consider the following six points when you evaluate this issue:

1) Is your employee qualified for the job?

2) Does your employee suffer from a cognizable disability under the ADA?

3) Has your employee engaged in an interactive communicative process to apprise you both of her disability and the accommodation that she deems necessary?

4) Could she perform the job with a reasonable accommodation?

5) What accommodations should be considered, in addition to the accommodation sought by the employee? and,

6) Would the proposed accommodation cause your company an undue hardship?

In my view, if you analyze these issues carefully, you should be able to achieve an adequate resolution to this situation that both preserves your employee’s job and satisfies your company’s ongoing need for a high-performing employee. Good luck!

Accommodating Disabled Employee with Serious Illness, Quirky Question # 101

Quirky Question # 101:We recently hired a 49 year-old employee to manage one of our manufacturing facilities.  The employee completed two weeks of paid training and began working at the beginning of the month.  His role is central to the success of the facility.  Less than a month into his new job, however, he called in sick.  Shortly thereafter, we learned our new employee was diagnosed with a serious form of cancer that required immediate surgery followed by extensive chemotherapy and radiation therapy.

We have proactively inquired of our employee, as part of the interactive process required by the Americans With Disabilities Act, whether he will be able to return to work, and if so, when.  He informed us that based on his physician’s prognosis, he is not available to return to work for an indefinite period, a representation we confirmed with his physician.  He also told us that he will be unable to perform the functions of his position during several rounds of chemotherapy and radiation treatment that likely will span at least six months.  Our manufacturing facility cannot operate without a manager.  It does not appear that there is any reasonable accommodation that would allow this individual to perform as a manager or in any other capacity during his treatment and recovery period.  (This assumes that at some point he receives a limited release to return to work.)

Do we need to hold this employee’s position open during his lengthy recovery?  Can we terminate him?  If we discharge him, could we be liable for discrimination as a result of his cancer and his cancer treatment?

Dorsey’s Analysis:

Regrettably, the question posed is not uncommon and is one that employers seem to be facing with increasing regularity.  As the baby boomers age, inevitably cancers among this aging population are diagnosed with greater frequency.  This issue is particularly affecting the workforce in the 50-70 age range.  Of course, the good news is that medical science continues to make significant advances in the successful treatment of cancer, often involving a combination of surgery and chemotherapy, radiation treatment, and other sophisticated treatments.  The challenge for employers is that such treatments are physically taxing for those being treated and often result in employees being too sick to work during the treatment and recovery phases.

On the fact pattern you presented, the fundamental question your company is confronting is whether terminating your employee would violate the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, et seq., and/or comparable provisions of parallel state statutes.

The facts described above do not implicate issues under the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601, et seq. because, with only one month of employment, your employee would not meet the eligibility requirements for the FMLA.  Therefore, he would have no claims under that statute.

Conceivably, the facts could raise a question as to whether the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621, et seq., was violated.  For purposes of responding to this question, however, I will assume your company’s contemplated termination decision is not motivated by age.  There is no evidence to suggest that age is a factor here, especially since your firm chose just weeks before to hire this individual without regard to his age.

Rather, the facts you describe suggest that your company’s contemplated termination decision is solely motivated by the fact that your employee is likely to be unable to work at all for the foreseeable future, coupled with the fact that your company needs a full-time manager for your manufacturing facility.  Turning then to the ADA, the initial issue is whether the employee who became ill is qualified to perform the essential functions of his job with or without accommodation.

The ADA bars discrimination “against a qualified individual on the basis of disability in regard to . . . discharge of employees . . . and other terms, conditions and privileges of employment.”  42 U.S.C. § 12112(a).  The ADA further defines “discrimination” to include “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an . . . employee . . . “  Id., § 12112(b)(5)(A) (emphasis added).  Under the ADA, a “qualified individual with a disability” is “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.”  Id., § 12111(8).  Finally, “reasonable accommodation” includes “job restructuring, part-time or modified work schedules, [and] reassignment to a vacant position . . .” among other possible accommodations.  42 U.S.C. § 12111(9)(B).

Based on the facts in your question, there can be little doubt that your cancer-stricken employee is disabled.  Thus, the fundamental issue is whether your disabled employee is otherwise qualified to perform the essential functions of his job, either with or without reasonable accommodation.  The limited facts presented suggest this employee is not so qualified.

The employee and his doctor have advised you that he cannot presently do his manager’s job or any other job.  Furthermore, it is uncertain when (if ever) he will be able to return to such a level of activity that allows him to perform the essential functions of his job as a manager, or some other position.  On these facts, while it may seem harsh, the ADA likely would not provide legal protection for this employee.  In short, your company can terminate this employee without violating  the ADA.

The Eighth Circuit Court of Appeals recently reached such a conclusion on facts similar to those presented above.  See Peyton v. Fred’s Stores of Arkansas, Inc., No. 08-2346 (8th Cir. April 15, 2009).  In Peyton, the new hire went out with abdominal pain just a few days into her new job as the manager of an Arkansas discount store.  She was diagnosed with ovarian cancer and she and her doctors advised she would be unavailable indefinitely during her treatment.  Fred’s terminated her and she subsequently brought an ADA claim.

In affirming the District Court’s summary judgment ruling, the appellate court noted that “it is axiomatic that a person who cannot perform any of the functions of a job, with or without reasonable accommodation, cannot, as  a matter of law, be considered ‘otherwise qualified’ under the ADA.”  Fred’s, slip op. at 6.   The Court added that Peyton’s concession that she could not work during chemotherapy and that, at the time of her termination, without the benefit of hindsight, she could offer no concrete idea of when she might be able to return to work in the  future, doomed her claim.  Id.  That is because, “a request for an indefinite leave of absence . . . is not a reasonable accommodation under the ADA.  Id. (citations omitted).

The Eighth Circuit added that it is not a valid reasonable accommodation for a cancer patient such as the one described in Fred’s to request an indefinite waiting period before a termination decision can be made to allow for an assessment of the long-term diagnosis, treatment, and recovery of the employee.  Fred’s, slip op. at 6.  The Court emphasized that “employers should not be burdened with guess-work regarding an employee’s return to work after an illness.”  Id.   In so stating, the Court reiterated:

Employers are not qualified to predict the degree of success of an employee’s recovery from an illness or injury.  To afford . . . protections of the ADA during the early stages of . . . recuperation from surgery, . . . would be to burden [the employer] with the duty to see into the future.  We do not believe that such was the intent of Congress in passing the ADA.

Id. at 7 (citing Browning v. Liberty Mutual Ins. Co., 178 F.3d 1043, 1049 (8th Cir. 1999)).

Of course, making a legally defensible termination decision does not ensure your company will not have to defend such a decision in court, even if it is legally correct.  Thus, notwithstanding the guidance presented here, you should be sure to exhaust the interactive process and thoroughly explore accommodations for this, or any other, cancer-stricken employee.  Handling such situations with care and compassion, even if the end result must be termination, can help reduce the chances that the terminated employee may sue under the mistaken belief he or she has been a victim of discrimination.

A final consideration, notwithstanding the short tenure of such an ill employee, would be to pay a small amount of severance in exchange for a release of claims.  Doing so would both show the your company’s compassion and good faith in helping to transition one of your employees (albeit a very new one) through the difficult and traumatic experience of a cancer diagnosis and treatment, and the attendant financial pressures that inevitably accompany such unfortunate diagnoses.

Accommodating Disabled Employee With Offensive Habit, Quirky Question # 100

Quirky Question # 100:

We have an employee who suffers from Post Traumatic Stress Disorder, is under the care of a psychiatrist through the Veterans Administration and takes medication for this condition.  He also chews tobacco at work.  There have been a number of employee complaints about the disgusting nature of the tobacco habit.  The employee claims that his psychiatrist feels that chewing tobacco helps him to reduce the stress level at work and we should allow him to continue.

We do not have a policy regarding the use of tobacco products at work, except for a designated smoking area away from the building entrance per a state law.  We would like to institute a new policy addressing the entire issue of tobacco use.  Could this be viewed as retaliatory?

Dorsey’s Analysis:

The starting point for the legal analysis of this question is the Americans with Disabilities Act (ADA). As with most ADA issues, the preliminary inquiry is whether the employee is disabled, i.e., does the person have a physical or mental impairment that substantially limits one or more major life activities; (there are two other facets of the disability definition that do not appear applicable to this fact pattern – record of impairment or regarded as having an impairment). A “major life activity” includes, by way of example, caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working.

Here, as described in the question, the employee suffers from Post Traumatic Stress Disorder (PTSD), is taking prescription medication, and is under the care of a Veterans Administration psychiatrist. Despite the convergence of these three variables, it is not clear to me that this employee is necessarily disabled. To make a more definitive analysis, I would like to know the precipating cause of his PTSD, the medication he is taking and why, as well as the frequency and dosage. I also would want to know what his condition would be in the absence of the prescription medication. Would he be functional? Would he be able to care for himself? To work? Although more facts are needed to evaluate more carefully whether this employee is a person with a disability, for the purposes of this analysis, I will assume that your employee could establish that he met the statutory definition of a disabled employee.

It also would appear that your employee is able to perform the essential functions of his job, with or without a reasonable accommodation, another component of the analysis under the ADA. You have not included any facts suggesting that your employee is unable to handle the responsibilities of the job or that his performance is deficient in some other way.

Arguably, however, his use of chewing tobacco is critical to his ability to perform at work. His psychiatrist, at least, apparently feels that his use of chewing tobacco has a beneficial effect and enables the employee to reduce his PTSD-caused stress. Again, I would like to know more about the psychiatrist’s diagnosis. I also would like to know more about the risks to your employee (if any) associated with the cessation of his chewing tobacco. Similarly, it would help define the problem to know how often he chews (does he keep a wad of tabacco in his mouth all day), where he chews, etc.

Although these facts would inform the analysis further, it appears from the question that your employee chews enough tobacco that other employees have noticed and are offended by his habit. Let’s assume that allowing this employee to chew tabacco is the “reasonable accommodation” needed by your employee to enable him to be fully functional at work. The next issue that needs to be addressed, therefore, is whether your company can accommodate your employee’s conduct without suffering an undue hardship.

At first blush, it would appear that the answer to this inquiry is affirmative. For one thing, your company has tolerated the conduct for a period of time. A plaintiff’s lawyer could make the straightforward argument that the company’s acceptance of this habit (with its salutary effects for the employee) itself illustrates that the company is not experiencing an undue hardship by allowing him to continue to chew. Moreover, it would not seem as though there are significant costs associated with allowing your employee to chew tobacco.

But, as you note, his habit is grossing out his co-workers. In my view, the impact that one employee’s conduct has on co-workers should not be dismissed cavalierly. Certainly, with respect to some behaviors (I’ll leave those to your imagination), the habits or conduct could be sufficiently disruptive of the workplace that it created a significant morale problem or caused unnecessary tension in the work environment.

Your employee’s tobacco-chewing habit suggests to me that you should explore further whether the interests of the co-workers can be addressed. There may be a number of practical solutions that would minimize, if not entirely eliminate, the problems you describe. For example, consider prohibiting the use of chewing tobacco in certain areas – the cafeteria and other common areas (such as an employee lounge) come to mind. Employees understandably could find it distasteful if they are watching someone chew and spit tobacco while they are eating. Similarly, the employee could be prohibited from chewing tobacco during meetings or other functions involving multiple employees. Another practical solution worth exploring is whether the behavior could be confined to certain times of the day (e.g., before 9:00 a.m., during the lunch hour if away from your company’s facility, after 4:00 p.m.). This suggestion may or may not be practical (depending on the chewing employee’s needs), but reducing the amount of time the other employees have to observe this behavior may have some beneficial effects. Another way of potentially minimizing the offensiveness of this conduct to others would be to ask the employee to work in an office or cubicle where his conduct would be less visible to his co-workers. Especially if this solution was viable (it may not be), this simple step may largely solve the problem your company is confronting.

Finally, you inquire whether your company could simply adopt a policy banning the use of all tobacco products on company premises and, if such a policy were adopted, whether this action could be construed as retaliatory. In my view, adopting this policy would have few positive effects with respect to your company’s interaction with this particular employee. As you note, he certainly would be able to point out that the policy was solely directed at his conduct as there were no other employees chewing tobacco on your premises. Moreover, he could engage in the interactive process with regard to a disability accommodation and request that the company not enforce the policy as to him. To the extent your company rejected this request, there are at least three potential consequences. First, he could cease using these tobacco products and continue to function effectively as an employee. Unfortunately, this scenario seems unlikely, based on his pyschiatrist’s diagnosis. Second, he could abide by the policy, cease using tobacco and become increasingly stressed out to the point where his work performance was adversely affected. If this scenario unfolded, you would have a difficult decision as to how your company would address these performance deficiencies. Third, he could refuse to abide by the policy. If your company discharged him at that juncture, he could assert both that the company had failed to reasonably accommodate him, which it have easily done without experiencing an undue hardship, and that the company adopted a policy in retaliation for his assertion of his rights under the ADA. Given that his PTSD apparently was caused by his military service, I would be uncomfortable with the atmospherics of that fact pattern.

Although adoption of a “no tobacco products” policy would not be of much use as to this employee, that would not deter me from adopting the policy with regard to the remainder of your workforce. You do not want to have to confront this issue again, especially for an employee who has no disability whatsoever but simply likes to chew tobacco, much to the consternation of his co-workers.

SSI Disability and the ADA, Quirky Question # 97

Quirky Question # 97:
One of our employees became disabled.  He successfully applied for Social Security benefits on the ground that he was permanently disabled from working.  The EEOC now has filed an action against our company, contending that we discriminated against our former employee on the basis of his disability.  If our employee is “permanently disabled from working,” how can EEOC sue our company for a violation of the Americans With Disabilities Act?  If our ex-employee cannot work due to his disability, how can the EEOC argue that he could continue to work for us with a reasonable accommodation?  This makes no sense.
Dorsey’s Analysis:
If your former employee persuaded the Social Security Administration that he is “permanently disabled” and consequently is unable to work at all, it is difficult to understand how he can argue simultaneously that he could continue working with your company if your company provided him a reasonable accommodation.. On their face, these two positions are fundamentally inconsistent.  
The problem with this context, however, is that, at least theoretically, your former employee is not the one “argu[ing] simultaneously that he could continue working with your company . . ..”  Your employee is not contending that he is a victim of discrimination; the EEOC is advancing that contention on his behalf.  And, many courts, including the U.S. Supreme Court, have drawn clear distinctions between the individual employee and the EEOC.  For example, as early as 1970, the United States Supreme Court held in General Telephone Co. of the Northwest v. EEOC, 446 U.S. 318 (1970), that “the EEOC is not merely a proxy for the victims of discrimination.”  Likewise, in EEOC v. Waffle House, Inc., 534 U.S. 279 (2002), the nation’s high court stated, “The EEOC does not stand in the employee’s shoes.”    
Given the fact that the EEOC is the plaintiff, rather than your former employee, the defense of judicial estoppel is not available to you.  The “judicial estoppel” defense is essentially the concept that a party who prevails on one ground in a lawsuit may not repudiate that ground in another lawsuit.  As courts have noted, the concept of judicial estoppel is designed to prevent manipulation of the judicial system by litigants who seek to prevail twice, on opposite legal theories.  See, e.g., Levinson v. U.S., 969 F.2d 260, 265-66 (7th Cir. 1992).  But, the judicial estoppel theory is an equitable theory, requiring consideration of multiple variables, including, for example, whether the plaintiff is the same party, or as here, different. 

A recent instructive case that explored these issues is EEOC v. Autozone, Inc., No. 07-1154 (C.D. Ill. February 23, 2009).  In Autozone, the EEOC sued the defendant, alleging that it had violated the ADA in connection with its treatment of John Sheperd, a former Autozone employee.  Sheperd has ceased working for Autozone due to depression, myofascial pain, degenerative discs of the spine, and other problems.  The Social Security Administration (SSA) awarded Shepherd disability defendants, finding that his “sub-optimally controlled depression” impaired his “overall functioning . . . and effectively render[ed] him disabled.” 

As the District Court found, “the EEOC is not merely an alter-ego of the individual employee, and it is not barred by prior acgtions or statements of those individuals in any other context.”  Further, picking up on the analyses of he Supreme Court and other lower federal appellate courts, the court found that “the EEOC’s interest in pursuing perpetrators of discrimination is much broader than simply obtaining relief for the victim of that discrimination.  Narrowing that interest by placing on it the same boundaries that limit individual litigants would be ill advised.”  Finally, the District Court concluded that the concern for manipulation of the judicial system did not apply given that the EEOC was not a litigant in the administrative proceedings before the SSA.   In sum, the court held that the EEOC was not a proxy for Shepherd and that its interest in pursuing relief on Shepherd’s behalf  “is a public interest in eliminating discrimination, and that interest is not as narrow as is Shepherd’s interest.”   
As you can see, the fact that your former employee successfully persuaded the SSA that he was entitled to receive full SSI disability benefits will not preclude the EEOC from pursuing a disability discrimination against your company.  Having made that observation, your company still should be able to exploit the statements made by your former employee in connection with his efforts to to persuade the SSA that he was completely disabled.  You still will have a compelling argument to make to the factfinder, whether judge or jury, that the position advanced by the EEOC is hopelessly inconsistent with the position advanced by your ex-employee before the SSA.  When your former employee is called to testify regarding the nature, scope and effect of his disability, your counsel should be able to conduct an effective cross-examination.     

Lastly, one issue that merits careful examination for your company is the standard for determining a disability under the ADA (especially in light of recent legislative changes to the statute) as compared to the SSI standard for determining disability.  To the extent that these standards differ, you should be prepared to explain why the same result is warranted under both statutory schemes, regardless of who is pursuing the claims on behalf of your former employee.  Good luck!


When the EEOC sued in connection with Autozone’s treatment of Shepherd, the defendant company asserted the judicial estoppel defense, pointing to the inconsistency in the position advanced by Shepherd before the SSA and the position advanced by the EEOC in its lawsuit.  As you might have guessed from the analysis above, the federal District Court rejected the defendant’s arguments with respect to the judicial estoppel defense.