C MON MAN! Seemingly Extreme Employee Requests for Workplace Accommodations.

Transcription

1 Seemingly Extreme Employee Requests for Workplace Accommodations.

2 General Requests While many employees make positive and constructive suggestions on improving the workplace, employers must be prepared to say No. Examples of Requests Which May Lead to Legal Liability Include: Safe Spaces. Employers must proactively prevent and correct known harassment. Weapons. Designated Alcohol and Drug Use Areas. Public Changing Areas. Tanning Beds, Pools, and In- Office Workout Areas.

3 ACCOMMODATION LEVEL Appropriate Accommodations An organization s decision to approve workplace accommodation requests should be based on an analysis of: Law Benefits Costs and Challenges Seniority and Value Culture Morale Gradual Consistent Danger SENIORITY AND PERFORMANCE LEVEL

4 The law requires an employer to provide reasonable accommodation to an employee or job applicant with a disability, unless doing so would cause significant Requests for Accommodation: Americans with Disabilities Act (and related state law) difficulty or expense for the employer ("undue hardship"). However, when a request is patently unreasonable, the employer has no duty to investigate it or begin the interactive process. Employers also do not need to begin the interactive process if the request does not make a sufficiently specific demand.

5 Requests for Accommodation: Non-Confrontational Work Environment Hargett v. Florida Atlantic University (S.D. Fla. 2016) Epileptic employee has stressinduced seizures. Requests that her supervisor stop having hostile confrontations with her and instead provide her with calm, non-confrontational treatment. Employee s physician sends a letter stating that it is medically necessary for her to be allowed to step away from the stressful environment to regain composure to avoid going into Epileptic Seizures.

6 Requests for Accommodation: Non-Confrontational Work Environment Holding: No Violation. Request is patently unreasonable, and not sufficiently specific. Hargett v. Florida Atlantic University (S.D. Fla. 2016)

7 Requests for Accommodation: No Strenuous Activities Francis v. Wyckoff Heights Medical Center (E.D.N.Y. 2016) Nursing Technician with lymphedema is unable to grasp, lift, push, or pull. Pain causes difficulty concentrating and speaking. Job responsibilities require her to lift and transport patients. Requests (a) to be excused from all strenuous activity and (b) as many sick days as needed.

8 Requests for Accommodation: No Strenuous Activities Francis v. Wyckoff Heights Medical Center (E.D.N.Y. 2016) Holding: No Violation. An accommodation that would permit Plaintiff an unspecified number of unscheduled absences is not reasonable. Avoiding all strenuous activity would eliminate essential functions of her job, and require other employees, acting in her stead, to perform every function of her job on an unpredictable basis and for an indefinite number of shifts.

9 Requests for Accommodation: Stress-Free Environment and Uninterrupted Lunch Breaks Edman v. Kindred Nursing Ctrs. West, LLC, (W.D. Wash. 2016). Employee with HIV requests accommodations to reduce his stress and exhaustion. Asks for stress levels as low as possible, adequate rest, uninterrupted 30-minute lunches, and weekly meetings with his supervisor. Employer agrees, but ultimately, his lunches are frequently interrupted, weekly meetings do not occur, and his hours increased. Additionally, he is not permitted to hang a do not disturb sign on office.

10 Requests for Accommodation: Stress-Free Environment and Uninterrupted Lunch Breaks Holding: Violation. In addition to general accommodations, Plaintiff did in fact request specific accommodations. The employer s failure to respond to complaints, or affirmatively verify the efficacy of the accommodations may be unreasonable. Edman v. Kindred Nursing Ctrs. West, LLC, (W.D. Wash. 2016).

11 Requests for Accommodation: Indefinite Leave Williams v. AT&T Mobility Services, LLC (6th Cir. 2017) Customer Service Representative suffering depression and anxiety attacks requests additional leave. Employee had taken leave from January until July already, utilizing a combination of FMLA and STD Leave. Physician estimated she could return mid-august. Employer declined to extend leave beyond July.

12 Requests for Accommodation: Indefinite Leave Williams v. AT&T Mobility Services, LLC (6th Cir. 2017) Holding: No Violation. Unreasonable to require AT&T to grant further leave as an accommodation where: Employee had a history of taking leaves. Her condition failed to improve during those leaves. She repeatedly failed to return to work return to work by dates previously estimated. Providers continue to only estimate a possible return date.

13 Requests for Accommodation: Sign Language Interpreter Deaf nurse requests Sign Language Interpreter. Johns Hopkins presents evidence that the requested interpreter would have cost approximately $120, per year. Johns Hopkins Hospital argues that this is undue hardship. Nurse s salary is $60, per year Searls v. Johns Hopkins Hospital (JHH) (D. Md. 2016).

14 Requests for Accommodation: Sign Language Interpreter Searls v. Johns Hopkins Hospital (JHH) (D. Md. 2016). Holding: Violation. Even if it is correct that the salary of a full-time American Sign Language interpreter would be twice the salary of a nurse, that in itself does not establish that an ASL interpreter would be an undue hardship. JHH s operational budget of $1.7 billion. Because a $120,000 accommodation would be only 0.007% of that budget, it was not an undue burden to accommodate her request.

15 Requests for Accommodation: Scent-Free Workplace Heaser v. AllianceOne Receivables Management, Inc., (D. Minn. 2009). Debt collector suffers neurological disorder causing cognitive problems and allergic reactions. Illness is triggered by certain chemicals and fragrances. Employer implements a voluntary scent-free policy and provides training to employees, a private bathroom, special equipment, and specialized seating and scheduling to minimize contact with other employees. Employee sues for the failure to provide further-improved ventilation, a mandatory scentfree workplace, or permission to work from home.

16 Requests for Accommodation: Scent-Free Workplace Heaser v. AllianceOne Receivables Management, Inc., (D. Minn. 2009). Holding: No Violation. A mandatory scent-free workplace is not a reasonable accommodation because it imposes a financial burden, is too difficult to enforce, and unduly burdens the rights of other employees. Work from home request was unreasonable as it would have required significant administrative oversight and no other employee had ever been permitted to work from home. Debt collector s calls must be monitored, and data must be kept securely and privately.

17 Requests for Accommodation: Truck Driver s Service Dog Truck Driver with PTSD requested trucking company to permit him to drive with his service dog. Company maintains a no pets policy. The Company refused to modify the policy, and rescinded its conditional offer of employment to him. Equal Employment Opportunity Commission v. CRST International (M.D. Fla. 2017).

18 Requests for Accommodation: Truck Driver s Service Dog Holding: Pending. EEOC arguing: - Company unreasonably failed to accommodate the service dog. - Retaliation for rescinding offer. Equal Employment Opportunity Commission v. CRST International (M.D. Fla. 2017).

19 Requests for FMLA Leve Acceptable Reasons for FMLA Leave: Birth, placement, or adoption of a child. Employee s own serious health condition, or to care for a family member s serious health condition. Care of a covered service member with a serious injury or illness. A qualifying exigency that arises out of the fact the employee's spouse or immediate family member is on active duty or call to active duty status in support of a contingency operation.

20 Requests for FMLA Leave: Jail Time Your employee, an ex-nfl quarterback, is convicted of driving under the influence of alcohol. The court sentences your employee to spend 30 days in a treatment center specializing in care for alcohol and drug dependency, followed by 50 days in jail. In addition to the media frenzy this has created, your employee is worried about his job and applies for protected leave under the FMLA for this entire period. Workers suffering from alcohol or substance addiction are entitled to FMLA leave for incapacity caused by treatment. Treatment includes examinations and evaluations. Does not include merely calling to make appointments.

21 Requests for FMLA Leave: Jail Time Determination: The FMLA does not extend to incapacity caused by addiction itself, or jail time.

22 Requests for FMLA Leave: Evidence of Second Job An employee brings a note from a doctor saying that she is unable to work because she has an anxiety disorder preventing her from interacting with other people. She is placed on FMLA leave. During her leave, she launches a new sales business and frequently posts about it on Facebook. The employee s new business involves frequent interaction with other people.

23 Requests for FMLA Leave: Evidence of Second Job Careful: Evidence that the employee can work one job does not always prove that he or she is not incapacitated for the purposes of your job. Here however, she has admitted that she is able to do precisely what she claimed she was unable to do.

24 Requests for FMLA Leave: Certification of Health Care Provider An employee brings a note from his chiropractor saying that he is unable to work due to severe back pain. The employee requests four days of FMLA leave. You find out that the chiropractor promised your employee the day before the examination that he would provide the work excuse.

25 Requests for FMLA Leave: Certification of Health Care Provider Not Valid Leave: To qualify as a health care provider for FMLA purposes, a chiropractor must have performed a manual manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist.

26 MARTY N. MARTENSON, ESQ. MARTENSON, HASBROUCK & SIMON LLP 3379 PEACHTREE ROAD NE SUITE 400 ATLANTA, GA (404)