According to the 5th Circuit, “Indefinite Leave is Not a Reasonable Accommodation”

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Published on Thursday, 03 May 2012 18:54

In a recent unpublished decision from the 5^th Circuit, the federal appellate court ruled that “Indefinite leave is not a reasonable accommodation.” Although this is not a citable decision, it is interesting to consider the court’s analysis in a case involving an employee claiming disability discrimination pursuant to the Americans with Disabilities Act (ADA). The case involves Andrew Amsel (“Amsel”) who worked for the Texas Water Development Board (TWDB) which is a state agency that provides water planning, financial and technical assistance, and data collection for the State of Texas. Amsel worked in various positions until his termination in August 2007. During his time working with TWDB, Amsel suffered from several medical conditions including ischemic heart disease, functional class IV angina, and a major digestive disorder. From 1997 to 2005, Amsel worked in TWDB’s information technology group as a Systems Analyst and was provided significant telecommuting accommodations that allowed him to work from home despite his health difficulties.

In August 2004, Amsel’s position was identified as one that faced outsourcing. As a result of the additional stress this caused, Amsel sought treatment from his primary care physician, who recommended that Amsel be provided a flexible work schedule that would allow him to continue telecommuting. Amsel then met with the company’s Human Resources Director about the doctor’s recommendation. TWDB determined that Amsel qualified to fill a back-up role to a TWDB employee in another department. However, his telecommuting was ultimately reduced from about two hours a day to one hour a day. In 2007, Amsel traveled to Thailand to receive cardiac stem-cell treatment. Upon Amsel’s return, he was unable to return to work but requested assignments he could perform from home or the ability to transition back to part-time. TWDB did not agree to this because Amsel was on sick leave and not expected to work. Amsel’s doctor then submitted another FMLA request indicating that Amsel was “unable to work at all” under his present condition. However, Amsel was ineligible for additional FMLA leave because he had not worked 1250 hours in the previous calendar year. TWDB thus awarded Amsel 720 hours from the sick-leave pool.

On June 6, 2007, Amsel  advised TWBD that he was still interested in working from home, but that he was still not released to work. Subsequently, Amsel’s position was eliminated due to budget cutbacks. Amsel then sued TWDB for disability discrimination pursuant to the Americans with Disabilities Act (ADA).

The district court granted TWDB’s motion for summary judgment and Amsel appealed. On appeal, the 5^th Circuit observed that “TWDB provided various accommodations hroughout his tenure, allowing Amsel to telecommute, providing a flexible work schedule, and creating a new position for him when stress exacerbated his conditions.” Further, as the court noted “the evidence undisputedly reflects that Amsel was completely unable to come to work at the time of the adverse employment action. Indeed, though his e-mails to TWDB expressed a desire to work from home, Amsel himself clearly indicated that he was not cleared to work. Amsel was only “qualified” if he could do the job with reasonable accommodation. Amsel, however, was not able to come to work and had not been in the office for months at the time of his discharge. Indefinite leave is not a reasonable accommodation. ‘Nothing in the text of the reasonable accommodation provision requires an employer to wait an indefinite period for an accommodation to achieve its intended effect.’”

The 5^th Circuit thus held that “that Amsel was not ‘qualified’ for his job at the time of his dismissal because he could not perform the job’s essential functions. Because Amsel was not a ‘qualified individual’ with a disability, he cannot establish a prima facie case of disability discrimination under the ADA or the Rehabilitation Act.” Read More.

9th Circuit Holds “Dependable Performance Requires Reliable and Dependable Attendance”

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Published on Tuesday, 24 April 2012 17:49

In a recent case that “tests the limits of an employer’s attendance policy” the 9^th Circuit considered the important question of whether attendance is an essential function of the job. The case involves Monika Samper, a neo-natal intensive care unit (“NICU”) nurse. Ms. Samper sought an accommodation from her employer, Providence St. Vincent (“Providence”), that would have allowed her an unspecified number of unplanned absences from her job. Providence is a medical facility in Portland, Oregon. Its NICU provides intensive care to premature infants. According to the NICU charge nurse, absences among NICU staff can jeopardize patient care because NICU nurses require special training. Samper was employed with Providence as a registered NICU nurse for eleven years. Since at least 2005, she has had fibromyalgia. Although Samper never worked full time, she regularly exceeded the number of unplanned absences permitted even for full-time employees. In July 2000, while on a leave of absence, Samper received a performance appraisal that referred to the seven unplanned absences over the year, exceeding the number permitted by the attendance policy. She was informed by the hospital that her attendance needed improvement.

In 2002, Samper was placed on work plans to manage her continued absences. After two more years of attendance problems, and another negative attendance review, Providence agreed to the following accommodation: Samper was allowed to call in when having a bad day, and move her shift to another day in the week. Providence did not require Samper to find a replacement for her shift. Although none of these leaves counted towards her unplanned attendance limit, and despite the ongoing accommodation, Samper was issued a corrective action notice for seven unplanned absences over the previous twelve-month period; some of the absences were several days in length. 

In 2008, Providence informed Samper that her part-time position would end, and she could either transfer to another position or face termination. Samper responded to this by allegedly making inappropriate comments in the presence of patients. Subsequently, Providence issued two corrective action notices. After additional unplanned absences, Samper was terminated due to her attendance problem. Samper filed suit alleging a violation of the Americans with Disabilities Act (ADA) due to a failure to accommodate her absences. The district court granted summary judgment in favor of Providence, concluding that because Samper was unable to adhere to Providence’s attendance policy, she was unqualified for her position as a matter of law. The court also held that the 2006 part-time work plan was a reasonable accommodation, and that the accommodation that Samper requested, specifically a waiver from the five unplanned absence limit, was  unreasonable.       

On appeal, the 9^th Circuit agreed, holding that “Samper’s performance is predicated on her attendance; reliable, dependable performance requires reliable and dependable attendance. An employer need not provide  accommodations that compromise performance quality.” Read More.

A Medical Leave of Absence Can be a Reasonable Accommodation

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Published on Wednesday, 21 December 2011 18:04

Employers must recognize that a medical leave of absence can be a reasonable accommodation, and depending on the circumstances, that failure to grant a medical leave of absence or terminating an employee while on a medical leave of absence can be a violation of the Fair Employment and Housing Act (FEHA)/Americans with Disabilities Act (ADA). In a recent case, American Apparel,  Inc., a clothing manufacturer employing thousands of workers at its production facility in Los Angeles and at retail stores around the country, has agreed to pay  $60,000 to settle a disability discrimination lawsuit  filed by the Equal Employment Opportunity Commission (EEOC).  The EEOC charged that the company allegedly violated federal law when it terminated a garment worker while he was on a leave of absence related to his disability, thereby failing to accommodate the employee’s disability, in violation of the (ADA). As part of the settlement, American Apparel agreed to adopt a comprehensive ADA policy; agreed to provide training to its managers and supervisors regarding the ADA; agreed to inform employees about their rights under the ADA and how to seek accommodations under the law; and agreed to designate an ADA coordinator who will oversee implementation of the settlement decree and the company’s ADA policy going forward. American Apparel will pay the terminated garment worker $40,000 and spend  $20,000 of the $60,000 settlement amount to sponsor, in conjunction with Los Angeles-based non-profit organizations, two seminars on the rights of workers  and responsibilities of employers under the ADA. According to Anna Y. Park, regional attorney for the EEOC, “We are pleased that American  Apparel recognizes the importance of the ADA and  is implementing measures to insure its full compliance with the ADA going forward…Employers should enforce  internal policies and procedures flexible enough to fairly and promptly address accommodation requests by those with disabilities.” Read More.

Wal-Mart Sued for Alleged Disability Discrimination

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Published on Monday, 19 December 2011 06:13

The Equal Employment Opportunity Commission (EEOC) has filed a lawsuit against Wal-Mart for allegedly failing to accommodate an employee with a disability. The EEOC also alleges that Wal-Mart later terminated the worker because of his disability and in retaliation for asserting his civil rights. According to the EEOC’s investigation, David Gallo worked at the Wal-Mart in Placerville, California, starting in June 2003. During his six years at the store, Gallo’s successful performance was reflected in promotions from overnight stocker to manager of the store’s tire lube express bay. Gallo has atrial fibrillation, a heart condition that causes shortness of breath and difficulty walking. In March 2008, the new store manager barred Gallo from parking in the handicap parking spaces and any spaces close to the front of the store, despite the company’s knowledge that Gallo had a disability. Gallo filed a charge with the EEOC for Wal-Mart’s failure to accommodate his disability in September 2008. Eight months later, he was terminated allegedly for an error made by a subordinate, even though the subordinate and the inspector who had reviewed his work were not discharged. EEOC San Francisco Regional Attorney William R. Tamayo said, “In December 2001, the EEOC reached a $6.5 million settlement with Wal-Mart. That consent decree was in effect for four years, resolved 13 different cases of disability discrimination against the company throughout the U.S., and required Wal-Mart to hire an ADA coordinator. Nevertheless, it appears that some store managers still do not understand their obligation to accommodate people with disabilities.” EEOC San Francisco District Director Michael Baldonado commented, “Wal-Mart could have easily accommodated Mr. Gallo, but despite his repeated requests, nothing happened until he filed his EEOC charge. Wal-Mart compounded its mistake by firing him in retaliation.  The EEOC will defend employees’ rights to ask for an accommodation for their disabilities and to report discrimination when employers fail to respond properly to their requests.” Read More.