by Lana L. Rupprecht, Esq. - AVP Product Compliance
October 18, 2023
Halloween is coming and sometimes, nothing can be scarier than struggling with employees who make vague references to an impairment but do not follow through and then, surprise you with a lawsuit later OR they ghost you and refuse to participate and/or cooperate in the interactive process.
Consider the following scenarios.
Scenario 1: Employee fails to clearly ask for an accommodation
An employee at your company asks the human resources team for Family and Medical Leave Act (FMLA) paperwork. The employee does not have an obvious impairment, and no one who works with her has knowledge of an impairment. Shortly after asking for FMLA paperwork, the employee is terminated for documented performance reasons that started well before she made the FMLA request. The employee brings a lawsuit claiming that the Americans with Disabilities Act (ADA) was violated because her employer should have known she had a disability and really needed an accommodation.
Question: Based upon these facts, does the employee have a viable claim under the ADA?
Answer: Not likely! The employee did not provide enough information to establish either a demand for an accommodation or that she was seeking an accommodation. Although an employee does not need to use the word "accommodation" or "disability," an employer needs information that the employee is asking for an accommodation. In a case with similar facts, Laurie McCormick v. Southeast Personnel Leasing, Inc. (11th Cir. 2022), the court dismissed such a lawsuit. But other courts, under similar facts, have held differently so be careful!!!
Scenario 2: Employee fails to participate in the interactive process
On his first day of work, an employee at a food chain notifies his supervisor that he is legally blind. In response, the employer temporarily removes the employee from the schedule until someone in the Human Resources department can meet to discuss his impairment and possible accommodations. The employee is later contacted by the area supervisor and asked to come into work to identify what tasks he can and cannot perform and to identify reasonable accommodations, but the employee refuses to meet and does not have any further communication with his employer.
Question: Based upon these facts, does the employee have a viable claim under the ADA?
Answer: Probably not. The employer was correct to try to talk to the employee and start the interactive process, though it may not have been wise to remove the employee from the schedule and not have him come into work after learning about the disability. These facts are similar to the case, McGuire v. Little Caesar's Pizza of Arkansas (E.D. Ark. 2022). In that case, the court held that since the employee failed to participate in the interactive process, the employer cannot be held liable if the process breaks down because of the "employee's lack of good faith." The court noted it was the employee who stopped communicating with the employer and "ended any attempts at accommodations."
Employer Tips
- Engage with employees! If they fail to provide information and you suspect they need an accommodation, talk to the employee. Absence management professionals can make this process less scary as they can ask what support or help would assist the employee's work, etc. without diving into medical details.
- If employees don't meet with you or if they refuse to return calls to discuss accommodations, do not panic! Instead, document the attempted contact and send written communication explaining the consequences of failing to respond or engage in the interactive process. Ensure employees understand you are trying to help and that they have a duty to participate in the interactive process.
- If employees cannot identify accommodations, offer several options and ask for preferences. You can also offer an accommodation on a trial basis and document your efforts.
Reliance Matrix Can Help!
Reliance Matrix offers employers leave administration and accommodation services. For more information, contact your Reliance Matrix account manager or send us a message to [email protected].
Through its insurance and administrative services entities, Reliance Matrix offers integrated leave management services involving the FMLA, state-mandated paid family and medical leave and accommodation solutions. Product features and availability may vary by state. For more information, please contact your Reliance Matrix account manager, or reach us at [email protected].