• October 16, 2012

A long-time employee experiences a series of injuries, some work-related and some not, which cause extended absences.  When she returns to work, she has physical restrictions.   The employer accommodates these absences and restrictions.  After her most recent absence, the employee provides her employer with a workability report that permits her to perform only sedentary work and with no use of her left arm.  The report does not indicate an end date for the restrictions.   The employee has exhausted all available leave options, including FMLA.  Three days after receiving the workability report, the employer fires her because she had not returned to work on a full-time basis and it was unable to accommodate her work restrictions or operate without three full-time employees.  Where did the employer go wrong?

According to U.S. District Court Judge John R. Tunheim (D. Minn.), who denied the employer’s motion for summary judgment on the employee’s claims for disability discrimination/failure to accommodate and retaliation, the employer made one critical mistake:  After receiving the employee’s most recent workability report, it fired her without first discussing with her whether there was any way she could perform her job given these restrictions.    In the judge’s eyes, this failure to engage in an “interactive process” is “prima facie evidence that the employer might have been acting in bad faith.”   This failure was particularly  troubling because, after her previous injury-related absences, the employee had consistently worked the hours she was scheduled to work, suggesting that an accommodation may have allowed her to return to a consistent work schedule if the employer had engaged in an interactive process.

This same failure to talk with the employee also resulted in the denial of summary judgment on  her retaliation claim.  The employer’s immediate termination of the employee — without first providing her any opportunity to explain her limitations or engage in an interactive process — is evidence of animosity due to her disability.

The court put it succinctly:  In order for the ADA to be effective, both the employee and the employer must be willing to engage in a process to determine the best way for a disabled employee to perform her job, if possible. Where an employer is unwilling to engage with a disabled employee to determine if accommodations are appropriate, the Act is violated.

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