Alcoholism and a Last Chance Warning, Quirky Question # 142
Quirky Question # 142:
I work as an HR representative in a medium-sized California business – we employ about 50 people. Recently, a situation with one of our employees was brought to my attention, and I’ve been asked how to handle it. We have an administrative assistant with an alcohol problem. We have reason to believe that her alcoholism was the true reason behind her excessive absenteeism in the middle of last year. Then, a couple of months ago, she came into work drunk – stumbling around the office and slurring her words. We immediately sent her home, but we didn’t want to fire her at that point. Aside from her alcoholism, she fits in very well with our culture and has a great relationship with her co-workers. We also wanted to be careful to comply with California law regarding “reasonable accommodation” of employees with alcohol problems. So the next day I met with her and offered her unpaid leave to enter an alcohol rehabilitation program. She completed the program, and has since returned to work. However, last week we again started to see signs that her alcoholism may be returning. She was absent Monday through Wednesday, and when I finally called her on Thursday, I could tell by the way she answered the phone that she was drunk. On Friday she came in, and I met with her. She apologized up and down and asked if she could enter rehab a second time. What should we do?
Gabrielle’s Analysis:
[Readers: Set forth below is an analysis of our last West Coast Quirky Question. This analysis was prepared by Gabrielle Wirth. If you have any questions, please do not hesitate to contact Gabrielle at 949.932.3690. Additional information about Gabrielle is available at: http://www.dorsey.com/wirth_gabrielle/. Regards, Roy]
This is an excellent question that arises with disappointing regularity. Before turning to the specific recommendation we would make, let’s review a few of the basics.
As your inquiry illustrates, employers have many reasons to educate themselves regarding their rights and obligations with respect to employees who use drugs or alcohol. For instance, firing an employee for being an alcoholic can subject the employer to discrimination liability under the federal Americans with Disabilities Act (ADA), or California’s Fair Employment and Housing Act (FEHA). This is because alcoholism may be classified as a disability under the ADA if it substantially limits participation in a major life activity, or under FEHA if it merely limits such participation. (In California, the standard has become more generous over time. Prior to 2003, courts had used the same “substantially limits” standard employed under the ADA, but in Colmenares v. Braemar Country Club, Inc., 29 Cal. 4th 1019 (2003), the California Supreme Court found that a condition need only “limit”, and not “substantially limit,” participation in a major life activity in order to be classified as a disability.)
Thus, an employer may not make adverse employment decisions solely on the basis of alcoholism, and must reasonably accommodate employees who have that condition. While many healthcare practitioners believe that both forms of chemical dependency (drug and alcohol) are similar in their effect on the mind and physiology, the law does not always treat drug addiction and alcohol addiction identically. Under state law, physical disability “does not include psychoactive substance abuse disorders resulting from the current unlawful use of controlled substances or other drugs.” However, alcoholism is not excluded from this definition.
Further, the employer’s right to conduct drug and alcohol testing on employees is limited by, and must be balanced against, the employee’s right to privacy. For instance, in Luck v. Southern Pacific Transportation Co., 218 Cal. App. 3d 1 (Cal. Ct. App. 1990), the court held that the right to avoid giving a urine sample is a privacy interest protected by the State Constitution, and that random urine testing is an unconstitutionally impermissible intrusion on that privacy right where there is no compelling interest to justify it. Therefore, drug testing policies must be carefully written to avoid impermissibly broad requirements.
Finally, in California, there is still another reason to pause before terminating an employee for issues related to substance abuse. California Labor Code Section 1025 requires private employers who employ 25 or more employees to “reasonably accommodate” any employee who wishes to voluntarily enter and participate in an alcohol or drug rehabilitation program. (Employers are not prohibited from taking action against an employee “who, because of the employee’s current use of alcohol or drugs, is unable to perform his or her duties, or cannot perform the duties in a manner which would not endanger his or her health or safety or the health or safety of others.”)
While the statute does provide that the reasonable accommodation must not impose an undue hardship on the employer, it does not specify what constitutes an undue hardship nor how many times the request to enter rehabilitation must be accommodated. The statistics indicate that rehabilitation is successful only 25-35% of the time. Section 1025 is silent as to whether “once is enough,” potentially implying that an employee could stave off termination indefinitely by repeated requests to enter rehab, which the employer would then be obligated to accommodate.
Introducing the Last Chance Agreement:
One tool that you may wish to consider to limit the potentially indefinite obligation of repeated visits to the rehab center is the Last Chance Agreement (LCA). An LCA is a formal, written agreement between an employer and an employee that allows the employee to remain employed despite misconduct, provided that he meets certain conditions. For instance, the LCA might specify that the employee is being given leave to participate in rehab, but if he doesn’t complete the program, or if he engages in any subsequent misconduct, then he will be fired. Thus, the LCA is literally the employee’s “last chance” to remain employed.
Because of the requirements of Section 1025, there has been some risk that LCAs might turn out to be in violation of the employer’s duty to reasonably accommodate. However, there is also some basis to believe that LCAs are a legitimate aspect of reasonable accommodation.
Case-Law Support for the Enforceability and Reasonableness of Last Chance Agreements:
Although the California case law on LCAs is not plentiful, courts have enforced last chance agreements. For example, in Gosvener v. Coastal Corp., 51 Cal. App. 4th 805 (Cal. Ct. App. 1996), a plaintiff sued his employer alleging that it had failed to reasonably accommodate his alcoholism and had illegally discharged him because of it. The plaintiff had signed an LCA with his employer, and then had violated it. Id. at 809. The California appeals court found that the employer had “properly exercised its contractual rights to terminate [Gosvener’s] employment” since Gosvener had “breached the express terms” of the LCA he had signed. Id. at 814. (Note that the Colmenares decision overturned Gosvener to the extent that it suggested that “substantially limit,” rather than “limit,” was the proper test for identifying a disability. However, the other holdings of Gosvener are not affected by Colmenares.)
The court reasoned that “the employer’s duty to accommodate such a disabling condition [i.e. alcoholism] is not unlimited, and an employer cannot be an insurer of recovery.” Id. at 813. Specifically, an employee “cannot gain yet another last chance despite prior warnings, and cannot stave off discharge indefinitely by attempting to enter into yet another course of treatment after each relapse.” Id. at 811 (emphasis added). Otherwise, the “last chance agreement would. . . become meaningless.” Id. at 812.
Equally helpful to employers was this court’s finding that Gosvener’s breach of contract and covenant claims were without merit, since the LCA constituted an express contract under which the employer was entitled to terminate. The court found that such an express contract supplanted any implied contract between the parties. Id. at 814-15.
There is also federal case law that supports the enforceability of last chance agreements. While such case law is not directly binding with respect to the California Labor Code, it does give some indication of the general attitude towards LCAs, and is persuasive to California courts, particularly given the lack of any contrary California authority. For instance, in Fuller v. Frank, 916 F.2d 558 (9th Cir. 1990), the Ninth Circuit upheld a termination in accordance with the terms of an LCA, noting that reasonable accommodation of alcoholism “must be limited in scope” since “continued ‘accommodation’ would simply enable an alcoholic to continue his or her drinking.” Id. at 561. Fuller pertained to the federal Rehabilitation Act of 1973; yet the Gosvener court had no trouble applying Fuller to California law. It noted: “we may follow Rehabilitation Act cases in the absence of California authority.” Gosvener, 51 Cal. App. 4th at 812 n.1.
The Eighth Circuit has held that LCAs do not violate the ADA, see Longen v. Waterous Co., 347 F.3d 685, 689 (8th Cir. 2003), and a recent district court case, Basso v. Potter, 596 F. Supp. 2d 324 (D. Conn. 2009), found that the express terms of an LCA governed, permitting an employer to terminate an employee for having more unscheduled absences than the LCA permitted.
The Last Chance Agreement as the Final Step in a Process of Reasonable Accommodation:
Despite the fact that there is some case law giving employers a basis to use and rely on LCAs, it remains prudent for your company to err on the side of caution in dealing with alcoholism and other forms of substance abuse in your employees. In each of the cases discussed above, the employer went far beyond simply providing a single last chance agreement to the employee. It is therefore likely that reasonable accommodation with respect to a request to enter rehabilitation goes beyond a single last chance agreement.
For instance, in Gosvener, the employer signed two separate LCAs with the plaintiff, who attended substance abuse treatment programs two separate times before the employer finally terminated him. When the employer initially found out that the plaintiff had both alcohol and methamphetamine abuse problems, it referred him to a private clinic, provided money for treatment by a private physician, reassigned him to a less stressful job position while continuing his higher rate of pay, and cleared him to return to work while undergoing therapy. Even after he violated the terms of the first agreement, the employer still executed a second LCA with him and gave him a second chance to attend another treatment program. Only after the employee violated the second LCA did the employer make the decision to terminate.
In Fuller, the employee was referred to the employer’s in-house counseling program three different times and given leave to participate in both alcohol and cocaine abuse treatment programs on three separate occasions until finally he signed an LCA and was subsequently terminated for drinking on the job.
Finally, in Basso, the employee was given numerous formal letters of warning, and was twice given the opportunity to rehabilitate himself before he finally came back to work under the express terms of an LCA, violated it by numerous absences, and was fired.
As you can see, the facts of these cases suggest that a single Last Chance Agreement, with nothing further in the way of accommodation, may not be sufficient to constitute reasonable accommodation of a substance abuse problem. To the contrary, the employers in these cases were accommodating in many different ways, and allowed problem employees numerous chances at rehabilitation before executing the final LCAs that ultimately gave rise to termination.
Thus, one lesson to take from these cases may be that a Last Chance Agreement is an enforceable component of reasonable accommodation, provided that it really does represent the employee’s last chance at employment given a history of attempts to work with that employee. In other words, the LCA should be one step in a series of attempts to accommodate the employee’s substance abuse disability.
Elements of a Last Chance Agreement:
As explained above, the basic purpose of an LCA is to: (1) provide the employee with one last chance at employment, and on the other hand, (2) strictly define the terms of continued employment and make it clear that any further misconduct will result in termination.
In structuring an LCA, employers should be specific about the types of misconduct that will result in termination. The following are some examples of potential LCA provisions:
(1) that the problem employee successfully complete a substance abuse program;
(2) that the employee will be subject to unannounced drug and alcohol testing for a certain period of time (e.g., two years);
(3) that the employee will be terminated either for failure to participate in unannounced testing, or for a positive test result;
(4) that the employee must maintain an exemplary attendance record without any unverified absences.
The LCA can also be further tailored to encompass the employee’s particular history of misconduct. In general, use of a LCA should provide you an opportunity to clarify your expectations of your employee once and for all, and put your employee unequivocally on notice of the ultimate consequences of his failure to fully correct a history of bad behavior. Repeated rehabilitation efforts do not have to be accepted by your company.
Threatening Behavior — A Mental Health Disability? Quirky Question # 132
Quirky Question # 132:
One of our employees has been very belligerent of late. He has made comments to co-workers that were intimidating and frightening. Some of his co-workers have considered them to be threats of violence and have reported them to our HR group.
HR investigated, corroborated the accuracy of the allegations, and confronted the employee. He basically admitted making the statements, but attributes his behavior to some unspecified mental health disability. We plan to terminate his employment. Is this plan prudent?
Roy’s Analysis:
Your question is very interesting, implicating a number of fundamental aspects of the Americans With Disabilities Act (ADA) and the parallel state anti-discrimination statutes. Further, your question contains within it several issues that warrant your consideration. First, is your employee a “disabled” employee under the ADA? Second, what types of disability claims could be asserted by the employee if your company carries out its plan to terminate his employment? And third, what defenses would your company have to any such claims? Let’s examine each of those issues sequentially.
As noted above, the first question is perhaps the most fundamental – is your employee a “disabled” employee under the ADA? The ADA prohibits discrimination against a “qualified individual with a disability.” In turn, an individual has a “disability” under the ADA if one of three conditions are met: a) he has a physical or mental impairment that substantially limits one or more major life activities; b) he has a “record of” such an impairment; or c) he is “regarded as” having such an impairment.
Here, your employee might have a cognizable disability and might be able to structure his claims based on either on the assertion that he “has a mental impairment” or that he is “regarded as” having a mental impairment. Perhaps your employee is suffering from a mental or emotional disorder (e.g., severe depression or paranoia) that is affecting the way he interacts with his co-workers and is contributing to his threatening behavior. Even if your employee is not suffering from a physical or mental impairment, he nevertheless could assert that he is perceived as (or “regarded as”) someone with a disability. As you described in your question, co-workers complained that his behavior has been “belligerent,” “intimidating,” and “frightening,” and your HR group investigated the situation and corroborated the underlying facts. Arguably, then, he is regarded as an employee who has, charitably described, a “difficult personality.” Again, whether that problem is linked to a cognizable psychological problem can’t be ascertained from your question.
A corollary inquiry when evaluating whether your employee is disabled is – what “major life activity” is substantially limited by the impairment? Somewhat surprisingly, some plaintiffs have made the argument that their inability to interact appropriately with others is itself a “major life activity” under the ADA. Who knew? Other plaintiffs advance a somewhat broader concept that has gained traction in the courts, which is that the disability (be it physical or mental) affects the major life activities of “working or learning.” Regardless of the theory advanced with respect to the “major life function” involved, many courts analyzing these issues have skipped over this issue to assess other critical aspects of a disability claim.
The second basic question referenced above is what types of claims could your employee bring pursuant to the ADA. Essentially, there are three. Your employee could claim disparate treatment. He could contend that you failed to accommodate his disability. Or, depending on what he communicated and when he communicated it, he could claim retaliation. Let me touch briefly on each.
As to the disparate treatment claim, as I have stated in other Blog posts, the key to these types of claims is the concept of differential treatment. This leads to the question of whether you have had any other employees who have engaged in threatening or intimidating behavior and how your company responded in those situations. If you have addressed these kinds of situations in a consistent and balanced manner, adopting a response appropriate to the perceived risk, your company should not have to worry unduly about a disparate treatment claim. Keep in mind too that courts have emphasized that for employees to succeed on disparate treatment claims in disciplinary contexts, the other individuals against whom the comparison is being made must be comparable in “all material respects” (e.g., same type of job, same supervisor, comparable experience, comparable qualifications, same conduct, etc.). Needless to point out, these variables make it difficult for a plaintiff to pursue successfully a disparate treatment claim when it comes to an employer’s disciplinary response to unacceptable conduct.
Another common claim under the ADA is a failure to accommodate claim. It is not clear from your question whether this employee requested any type of accommodation or made any comments that put your company on notice that it needed to engage in the interactive process associated with disability claims. A separate question is whether any accommodation would even be possible, given the nature of the conduct involved here. This will depend on the nature of the job involved, the degree of interaction with co-workers and the public, and other factors bearing upon whether your company could do anything to mitigate the consequences of the intimidating behaviors.
The third type of claim is a potential retaliation claim. Here, I’ll simply reiterate my standard advice to my clients – do NOT convert a weak underlying claim of employment discrimination into a compelling retaliation claim. Time and time again, employers confronting weak and easily defensible discrimination claims take actions that are retaliatory. Then, even if the underlying discrimination claim is dismissed, the retaliation claim will likely survive.
Assuming that your employee institutes litigation and pursues a disability discrimination claim, your company should have a strong defense to the claim based on the employee’s conduct. If your company carries forward with the discharge it is planning as a result of the reasons you described above, your soon-to-be-ex-employee will have to demonstrate that these reasons are a pretext or cover-up for discrimination. This will be a tough hurdle for your former employee. Remember, to show pretext, a plaintiff “must show more than [defendant’s] decision was mistaken, ill considered or foolish, and as long as [the employer] honestly believes those reasons, pretext has not been shown.” See Hague v. Thompson Distributing Co., 436 F.3d 816, 823 (7th Cir. 2006).
Another interesting defense in the context of your question is the concept that under the ADA, an individual is not a qualified individual with a disability if he is a direct threat to himself or others. You may recall that there were a number of these kinds of cases, which arose in the early stages of the AIDS crisis. At that time, there were fewer effective medical treatments for individuals who were HIV positive and there was a high level of public anxiety about what initially was a nearly always a fatal disease. Therefore, cases involving HIV carriers worked their way through the legal system, often examining whether the job performed by the HIV infected employee created a risk for the employee himself/herself or others.
This same analytical framework has applicability to your situation, or any context where an employer is concerned by the risk of workplace violence. If your company can demonstrate (and you have the burden of persuasion on this point) that your employee poses a direct threat to himself or others, he ceases to be a qualified individual with a disability.
Yet a third compelling defense in a context like this is grounded on the distinction between a mental health disability and the behaviors linked to that disability. Think of this issue, for example, in the area of alcohol or drug dependency. Although an employer may have an obligation to accommodate an employee with alcoholism who is receiving treatment, an employer does not have to tolerate an employee who shows up at work under the influence of drugs or alcohol. Analogizing to the fact pattern you described, even assuming that: a) your employee had a cognizable mental health disability; b) that substantially impaired a major life activity; and c) requested an accommodation; your company still would not be obligated to tolerate the behavioral manifestations of his disability in the workplace.
In short, even if you discharged this employee and he sued your company for disability discrimination, it would appear that you would have several persuasive defenses. Of course, your company would not need to advance those defenses if the court concluded that your employee was not disabled under the ADA.
An interesting case that implicates many of the issues addressed above is Bodenstad v. County of Cook, et al., No.08-1450 (7th Cir. June 22, 2009). In Bodenstad, a physician/anesthesiologist at Cook County Hospital claimed that he was fired in violation of the ADA. After approximately nine years of employment with the hospital, Bodenstad was diagnosed with a cancerous lesion on his mouth. When discussing his own health and his fears about his cancer metastasizing, he told a friend that if his health deteriorated, he was going to kill his supervisor and several other physicians. His friend was sufficiently concerned about these comments that she shared them with the Chicago police and the FBI. The police felt that the threats were credible.
The hospital’s initial response was to suspend Bodenstad, with pay, pending a psychiatric evaluation. Although Bodenstad first refused to submit to an examination, he later agreed to obtain treatment at the Professional Renewal Center (PRC), where he completed a five-day multi-disciplinary assessment. The PRC assessment was that Bodenstad suffered from paranoid and narcissistic personality features and “occupational and interpersonal stressors.” Bodenstad agreed to be treated at the PRC for three additional months, at the end of which Bodenstad was directed to continue to treat with a psychiatrist, a directive he disregarded. Not long thereafter, the hospital conducted a hearing involving Bodenstad’s behavior, after which the hospital decided to terminate his employment. After being fired, Bodenstad sued.
The federal district court granted the defendants’ motion for summary judgment and the case was appealed to the Seventh Circuit. The appellate court affirmed the decision. Even assuming that “interacting with others” constituted a “major life activity” and that Bodenstad was “substantially limited” in this activity, the Court of Appeals still found that Bodenstad could not establish a viable ADA claim. Essentially, the appellate court concluded that the hospital’s reasons for discharging the physician were legitimate and that Bodenstad could not demonstrate that the reasons articulated by the defendant for its decision were pretextual. As the court emphasized, “summary judgment was . . . appropriate because Cook County presented undisputed evidence that it fired Bodenstad for threatening his co-workers.” The court also pointed out that “there is no legal obligation to ‘accommodate’ conduct, as opposed to a disability.” The appellate court noted, “The law is well settled that the ADA is not violated when an employer discharges an individual based upon the employee’s misconduct, even if the misconduct is related to a disability.”
Finally, in the area of employment law, employers often are forced to evaluate competing risks. Here, the competing risks are litigation by a belligerent, intimidating, threatening employee who is terrifying his co-workers, or litigation by a co-worker injured by that person, or worse yet, by the co-worker’s estate in the event of his or her death. Which lawsuit would your company rather defend? As I’ve stressed in other Blog posts involving risks of workplace violence, employers cannot be responsible for risks of which they were unaware, but known risks cannot be ignored. Assuming that your investigation corroborated the basic underlying facts and your best judgment is that your employee poses a risk of violence to his co-workers, I think your path is clear.
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?
Roy’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 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?
Roy’s Analysis:
Quirky Question # 100 was recently submitted by one of the Blog’s readers. So, my first observation is simply an expression of thanks to the person who provided this inquiry and encouragement to the rest of you to send in questions that reflect issues confronted by your company or that simply intrigue you.
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.
Accommodating Two Employees With Similar Disabilities, Quirky Question # 81
Quirky Question # 81:
I am in charge of staffing at a medium-sized company that runs several centers in the metro area offering emergency day-care services on a daily fee basis for children from 6 months to 6 years of age. Because we do not know the mix of children who will be brought to our centers on any particular day, we expect every child-care provider we hire to be able to push strollers, lift and carry the smaller children, and play games with the older ones. Therefore, as part of the job description, we require that all employees be able to lift at least 30 pounds.
About 9 months ago, one of our employees was in a car accident and suffered a serious injury to her shoulder. She came back to work with a doctor’s note imposing a temporary lifting restriction of 10 pounds. She’s great with kids and well-liked by her co-workers, so we didn’t want to let her go just because she got injured. Both we and the employee also thought that she would quickly recover, so we made arrangements to keep her around. It wasn’t easy, but we arranged it with the other child-care providers in her center so that she wouldn’t have to work with the youngest children. Her interactions with the older ones were limited to comply with the lifting restriction, too.
After about 12 weeks with this arrangement, the employee brought in another doctor’s note indicating that the shoulder had not responded to physical therapy and that the lifting restriction was indefinite. The employee further confided to me that the only other option was surgery, but she was afraid to have the surgery, there was no guarantee it would work, and she didn’t think she could afford the extra medical expenses. Because the job duty arrangement, while not ideal, seemed to be working, we have continued to employ this employee with her lifting restriction for another 6 months.
Just after New Year’s, another one of our child-care providers at the same center suffered a shoulder injury, falling off a ladder while taking down Christmas lights. He took last month off, and then stopped by the office this week with a doctor’s note that detailed an identical 10-pound lifting restriction. At this point, the doctor is not sure if the injury is permanent.
Our staff is already stretched thin. Scheduling is tight. Changing yet another employee’s job description would force us to hire other employees to work with the small children that the work-restricted employees can no longer supervise. There is simply no possible way we can afford to have two employees who are unable to work with the small children. Yet this second employee obviously knows of the arrangements we made for the first, and I’m sure he is going to ask us to do the same for him.
I know the ADA requires us to make reasonable accommodations for our otherwise-qualified employees. My question is this: by accommodating the first employee, did we acknowledge that the accommodation was reasonable? Can we be held to that standard for this newly-disabled employee? Do we face discrimination lawsuits if we don’t accommodate both of them in the same way? We absolutely can’t do that, so are we better off just letting them both go at this point?
[Readers: This question was posed to my colleague, Mike Iwan, so I have provided his analysis below. Mike is a 1992 graduate of Stanford University and a 1998 graduate from the University of Minnesota Law School. Mike can be reached at 612.340.5613 or by email at Iwan.Michael@dorsey.com. If you have any questions or comments about Mike's analysis, don't hesitate to contact him. Regards, Roy]
Mike’s Analysis:
That is certainly an unenviable position. The choice between losing two valued employees, or retaining just one of them and defending your favoritism in court is extremely difficult. This situation also raises countless issues about ADA coverage, the definition of a disability, and what it means for an accommodation to be reasonable. The matter is further complicated by the recently enacted amendments to the ADA, which promote a much broader definition of “covered disability.” I believe, however, that there is a way to resolve this situation that meets your business needs while still giving you a defensible position in any subsequent litigation.
I note in passing that, at least with the second employee, you need to be aware of possible FMLA issues. It doesn’t sound as if the employee is asking for any sort of leave or reduced schedule in connection with his injury, and it is also unclear whether this shoulder injury would qualify as a serious health condition under the FMLA. But any time you are confronted with an employee illness or injury affecting job performance, it is wise to first rule out any FMLA obligations.
The next question to ask in such situation is whether the ADA (or a similar state law) is implicated. Usually this means first asking whether the employee has a “disability.” Not all physical impairments, of course, qualify for protection under the ADA. To be a “disability,” an impairment must substantially limit one or more major life activities. A temporary impairment does not count as a disability. If the injury to this employee’s shoulder heals or is likely to heal, he is due no protection under the ADA. Even if his lifting restriction is permanent, he still faces a long line of unfriendly precedent. While the ADA specifically includes “lifting” as an example of a major life activity, courts have been reluctant to equate lifting restrictions with disability status. Brunko v. Mercy Hospital, 260 F.3d 939, 941 (8th Cir. 2001) (40-pound lifting restriction was not a disability); Gutridge v. Clure, 153 F.3d 898, 901(8th Cir. 1998) (45-pound restriction was not a disability); Snow v. Ridgeview Med. Ctr., 128 F.3d 1201, 1207 (8th Cir. 1997) (25-pound restriction was not a disability). In all of those cases, an employee was restricted from performing some jobs, but able to perform a wide variety of other ones.
The situation here is potentially different; however, given the severity of the lifting restriction. While most daily activities do not require the lifting of 40 or 45 pounds, 10 pounds is so low that the employee has a better argument that, if thought to be a long-term condition, he is disabled. Still, one could think of any number of office, retail, or other customer service positions in which the employee could work even with his lifting restriction, even if he can no longer work for a company that provides emergency day care to children of all ages. An impairment that renders a person unable to perform one specific job is not a disability. Aucutt v. Six Flags Over Mid-America, 85 F.3d 1311, 1319 (8th Cir. 1996). Without proof of more serious limitations to his daily life or ability to find employment, he will likely have a hard time proving that he is disabled.
Admittedly, however, there is some uncertainty here. Last September, Congress amended the ADA to loosen the definition of disability. The amendment specifically repudiated the cases imposing a strict standard on the definition of disability. According to Congress, the new focus of ADA cases is supposed to be on whether employers have complied with their accommodation obligations. The definition of disability, however, remains unchanged. Even in light of this new directive, it is not clear that a court would find a 10-pound lifting restriction on one arm to be a substantial limitation of any major life activity.
Even if a court decided that this employee is disabled, it is unlikely that he would be able to demonstrate that his requested accommodation would be effective. If each employee could care for only a segment of the children, your business model would not work. On days when the mix of ages was distributed evenly, there would be no problems. But on those days when the range in ages skews old or young, some of the employees would be responsible for every child, and some employees would do no work at all. This would be neither safe nor efficient.
The fact that you have a written job description emphasizing the need to be able to care for children of all ages and to lift 30 pounds makes your case even stronger. When a function is this important, and when removing the function would fundamentally alter the nature of the position, the function is essential to the job. 29 C.F.R. §1630.2(n)(3).
Unfortunately, this employee can no longer lift more than ten pounds. The only suggested way to accommodate his lifting restriction in his current child care position is to allow him to abstain from working with some portion of the children. But by only being available to care for some of the children, he is no longer performing the central, essential function of the job. Employers are not required to alter an existing position by removing or changing the job’s essential functions.
But what about the fact that you have offered such an “accommodation” to the first employee? Have you conceded that the accommodation is reasonable? (Again using the term “accommodation” assumes that the first employee has a disability – it very well may be that neither have a covered disability under the ADA). The answer is no, for two overlapping reasons. First, the ADA requires that courts consider every disability claim on a case-by-case basis. Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555, 566 (1999). Even if one accommodation is reasonable, a new set of circumstances (including, presumably, the existence of the first accommodation) could still make another, similar accommodation unreasonable.
Second, the fact that an employer offered a particular accommodation once is not conclusive proof of the accommodation’s reasonableness. See Myers v. Hose, 50 F.3d 278, 285 (4th Cir. 1995) (holding that an employer did not violate ADA by refusing to extend accommodations to the plaintiff even though those accommodations were offered to other employees). To adopt such a rigid standard, in fact, would create a disincentive for employers to offer the fullest possible accommodation to an employee, for fear that its efforts may actually be “used against it” with regard to a later employee. Id.
In Smith v. Ameritech, for example, the Sixth Circuit rejected a claim by a plaintiff that his employer failed to accommodate his chronic back pain by reassigning him to a different position and allowing him to work from home. The court concluded that although the employer had made similar arrangements for another employee with multiple sclerosis, it would be inappropriate to “ratchet up liability” on employers who offer accommodations “as a matter of good faith” even though no particular set of accommodations is required by the ADA.. 129 F.3d 857, 866-68 (6th Cir. 1997).
In light of the foregoing, the most important step for you to take at this point is to make sure you have engaged in a dialogue with this second employee. The EEOC calls this the “interactive process.” When an employee tells an employer about a disability, the employer must undertake reasonable efforts to find an accommodation that is appropriate with regard to both the essential functions of the position and the individual limitations of the employee. Fjellestad v. Pizza Hut of Am., Inc., 188 F.3d 944, 951-54 (8th Cir. 1999). One final option to consider is whether there are any open positions in your organization that do not require lifting of more than 10 pounds, for which your second employee would be otherwise qualified. If there really are no accommodations available that do not result in the elimination of an essential job function, the creation of an entirely new position, or significant pressure being placed on either the company’s financial health or the responsibilities of other employees, then you have no reasonable accommodation to offer and you have fulfilled your obligations under the ADA.
Follow
