Monday, March 13, 2017

Lessons from a Recent Employer Win in an ADA Accommodation Case

A Texas employer defeated multiple, disability-based claims brought by the Equal Employment Opportunity Commission (EEOC) on behalf of an employee who injured herself on the job and complained when the employer did not reassign her to a different position.  In EEOC v. Methodist Hospital of Dallas, No. 3:15-CV-3104-G, the employee, a patient care technician (PCT), injured herself on the job and obtained various medical restrictions, some of which restricted work entirely, and some permitting light duty work.  The employer accommodated the light duty until the employee's doctor released her to return to work as a PCT.  Around the time of the release, the employee approached the employer and requested a reassignment to accommodate her injury.  She also requested and received leave under the Family and Medical Leave Act (FMLA), as well as additional, personal leave. 
 
The employer did not reassign the employee to the scheduling coordinator position she desired, because at the time she made the request, she had not been released to return to work in any position.  Additionally, despite the employer's outreach, the employee repeatedly failed to contact human resources to discuss her employment.  The employer eventually separated the employee from employment, prompting a suit by the EEOC alleging that the employer violated the ADA by failing to accommodate the employee by reassigning her to the scheduling coordinator position.  The EEOC also alleged that the employer maintained an unlawful policy of requiring individuals with disabilities who require reassignment as a reasonable accommodation to compete for vacant positions.
 
Here are the highlights of what persuaded the Court to grant summary judgment for the employer on all counts:
 
1.  The employee was not qualified for the scheduling coordinator position.  When an employee requests reassignment as a reasonable accommodation, courts look to the job the employee seeks when determining whether he or she is a qualified individual with a disability.  An essential function of nearly every job is the ability to appear for work.  At the time the employee applied for the reassignment, she had not been released to return to work, and therefore, could not meet the attendance requirement.  Additionally, the Court cited with approval authority for the proposition that an employee who fails to provide a release is not a qualified individual under the ADA. 
 
2.  Documentation and timing are critical.  The EEOC failed to produce any evidence that the employee could attend work on the date she applied for the scheduling coordinator position.  The Court rejected several documents proferred by the EEOC to show otherwise.
 
3.  A policy requiring a release to return to work is not a per se violation of the ADA.  The Court agreed that a policy requiring 100% recovery to return to work may violate the ADA, but here, the EEOC failed to submit any evidence that the employer required a "full release."  In fact, the employer's accommodation of the employee's light duty requirements undercut the argument that the employer required a full release.
 
4.  If an employee cannot perform the essential function of attendance  due to FMLA leave, the employee is not a qualified individual within the meaning of the ADA.  Put another way, if an employee's inability to attend work is necessitated by FMLA leave, the employee will not meet the "qualified individual" standard necessary to prevail on a claim under the ADA.  As the Court noted, a reasonable accommodation does not require an employer to wait indefinitely for the employee's medical condition to be corrected. 
 
5.  Reassignment to a vacant position may be appropriate pursuant to the EEOC's Guidance, but only if it is reasonable, and is the accommodation of last resort.  Here, the Court took the employee to task for failing to explore other accommodations before insisting on reassignment. 
 
6.  The ADA does not require reassignment without competition for, or preferential treatment of, the disabled.  Although the Fifth Circuit has not yet weighed in on the issue of whether the ADA requires an employer to reassign a disabled employee as a reasonable accommodation, the district court decided, based on the weight of Fifth Circuit authority, that the ADA does not require affirmative action in the sense of requiring that disabled persons be given priority in hiring or reassignment over those who are not disabled. 
 
In short, the employer provided leave as a reasonable accommodation, accommodated the employee's light duty restrictions, and engaged in the interactive process to the extent it was able to do so.   The employee failed to engage in the interactive process and insisted on an accommodation that was not, according to the Court, an accommodation of last resort.  Finally, an employer is not generally required to give preferential treatment to a disabled employee by reassigning him or her to a position for which there are other, qualified but non-disabled candidates.