Practical Tips for Employers: Avoiding Disability Discrimination Claims

Dealing with medical conditions in the workplace continues to be a huge challenge for employers.  Handling them the wrong way can be extremely costly.  Last month, a Florida jury awarded $4.4 million to a disabled car dealership employee who was terminated after being diagnosed with cancer and having his kidney removed.  Most of the staggering verdict was in punitive damages, demonstrating just how angry the jury was over the cancer victim’s treatment.

Although a single article can hardly scratch the surface of an employer’s risks in this area, below are some key reminders to help minimize your exposure:

1.    Assume a Medical Condition is a “Disability” Under the ADA

What constitutes a “disability” under the Americans With Disabilities Act (ADA) is very broad.  Almost every medical condition beyond the common cold can satisfy the definition of a “disability,” even conditions like obesity, back problems, chronic migraines, and depression.  Just like the employee’s race, sex and religion, the disability cannot be a factor in any adverse action taken against the employee.  Also, one key element of the ADA different from other anti-discrimination laws is that you may have an affirmative legal obligation to engage in the ADA’s “interactive process” and provide a reasonable accommodation to the employee.

2.    Be Aware of “Disability-Association” Discrimination Claims – Even if the Employee Has No Disability

Even a perfectly healthy employee can still have a discrimination claim against your business.  How is this possible?  If an employee’s relative is disabled, and that disability was a factor in the employer’s adverse employment action, your business may face a lawsuit for “disability-association” discrimination. Lampkin v. Staffmark Holdings, Inc., 2014 U.S. Dist. LEXIS 7582, *6, 2014 WL 243289 (S.D. Tex. Jan. 21, 2014).  For instance, assume your employee’s husband has been battling a terminal illness.  The employee has been frequently absent, and when she is at work, she is distracted and emotional.  The spouse’s medical bills also impose a strain on your company’s group health insurance. These potential frustrations you may have with the husband’s illness cannot be used as factors in any adverse action toward the employee.

This “association” theory is supported by the EEOC and many federal courts.  If you know that an employee’s spouse or other family member has a disability, be careful.  Think of that as a “protected class” just like the employee’s race, sex and religion, and it cannot be a factor against them in any decision.

3.    Engage in the Interactive Process and Document that Process

The ADA’s mandated “interactive process” means that you must sit down with the employee and discuss what accommodations he or she is requesting to help them perform their job.  There are two ways the interactive process is triggered: (1) the employee requests an accommodation, or (2) you become aware that an employee with a disability may need an accommodation to help them do their job.  For instance, if you know an employee with an eye disorder cannot see their computer screen, you may need to raise the issue even if they do not ask for an enhanced monitor or a magnified screen.

Here are some other key points:  You are not required to accept the employee’s first choice or any unreasonable request.  You can propose alternatives.  It is a “give-and-take” situation and both sides must be flexible.  You are also allowed to ask for medical documentation supporting the request and you should.  If the employee refuses to participate or cuts off the process, you have done your part and your obligation is satisfied.  It is very important to document your interactive process meetings and discussions, ideally in a memo to the employee.  Your request for documentation, with a due date, should also be in the memo.

4.    You May Have to Provide an Extended Leave of Absence Beyond FMLA Leave As a Reasonable Accommodation

Numerous employers make the mistake of terminating a disabled worker after he cannot return to work after exhausting his 12 weeks of FMLA leave and PTO.  This can result in legal liability under the ADA.  Courts have routinely held that an extended unpaid leave of absence IS a reasonable accommodation that employers must consider (unless they can prove it is an “undue hardship” on their business, which is hard to show).

So what do you do if an employee requests several more months off from work after using his FMLA leave?  The key to managing this situation is to ask for documentation from the employee’s doctor stating how much leave is needed and how this will enable the employee to perform the essential functions of their job.  If the employee is permanently disabled and has no chance of being able to do his job, then an extended leave may not be required.  Also, requests for “indefinite” leave are not reasonable—you do not have to hold an employee’s job open for an undefined period of time.  If the return-to-work date continues to get extended by the employee’s doctor—which is very common—it is critical to respond in writing each time and stay on top of the situation. You want to have any extensions you have granted clearly documented.  At some point, enough will be enough.

5.    You May Be Required to Automatically Transfer a Disabled Worker to Another Vacant Position

This is a controversial area of disagreement among the EEOC and the courts.  The EEOC and several federal circuits believe employers should have to automatically place a disabled employee into a vacant job for which they are qualified without requiring them to compete for the job.  More conservative circuits disagree. They hold that a disabled worker should not have the right to be “given” a transfer but, instead, should only be given the job if they are found to be the best qualified.  Before rejecting an employee’s request for a transfer, you should check with qualified legal counsel to determine what your obligations may be in this area.