For employers determining what constitutes a “reasonable accommodation” can often be a challenge. A very recent decision by a federal court in Connecticut highlights the fact that what constitutes “reasonable” is not without limits, and an employer is not obligated to create new positions or allow employees to work without supervision. Wang v. HP, Inc., Civil No. 3:17-cv-2096 (D. Conn. 2020).

In Wang, the Plaintiff, who suffered from depression and anxiety, worked remotely from his Connecticut home for Defendant HP, Inc. Soon thereafter, Plaintiff was informed of a corporate initiative encouraging all remote employees to “return to the office,” even if it meant relocating. Plaintiff refused to relocate from Connecticut to Idaho, and later requested short-term disability leave, which was then extended to long-term disability leave because Plaintiff was “medically unable to perform the functions of his former position.” Plaintiff was ultimately terminated almost two years later because he was unable to find a vacant position for which he was qualified to fill at HP, Inc. Plaintiff then filed suit asserting that HP, Inc. violated the American with Disabilities Act (“ADA”) by denying two separate requests for accommodation: (1) the first request being that he worked only twenty hours a week without contact with his former supervisor and colleagues, and (2) the second request providing a job assignment after he was approved to return to work thirty hours weekly.

A basic fact a plaintiff must prove in an ADA case is that an “effective accommodation exists” that would allow him to perform his job. The Court ruled that a request to change supervisors was unreasonable. The Court noted that the Plaintiff requested to “be employed in a setting, and workgroup in which he will have no day to day contact with former fellow employees and/or supervisors,” but Plaintiff offered no evidence that within the context of his particular workplace, this was a reasonable accommodation. In fact, this request would have essentially required the Defendant create a new position or allow Plaintiff to work without supervision which the Court held were not reasonable accommodations.

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Many employers mistakenly believe that once an employee has used all FMLA leave it can automatically terminate employment. Sometimes even lawyers do not know the law. A recent ruling involving a legal assistant employed by a Connecticut law firm highlights the complications employers face.

In Rossing v. McElroy, Deutsch, Mulvaney & Carpenter, LLP, No. 3:18-cv-00413 (JAM) (D. Conn. 2020), the Plaintiff was a legal assistant who worked for a law firm for six years before being terminated for excessive absenteeism. Plaintiff suffered from degenerative disc disease, foot impairments, and diabetes, causing her to miss significant time at work. In the months leading up to Plaintiff’s termination, Plaintiff took all available FMLA leave. After she exhausted her leave, she worked for a month and then called in sick. The Defendant’s office administrator then took immediate action to terminate the Plaintiff after she had called in sick, because Plaintiff no longer had any leave time.

Plaintiff filed an action for discrimination and retaliation, alleging disability discrimination in violation of the Americans with Disabilities Act (“ADA”), and the FMLA. The law firm claimed that the legal assistant’s ADA claim was without merit because she was out of work so often. To be considered “qualified” under the ADA, an individual with a disability must “satisf[y] the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of the position.” 29 C.F.R. 1630.2(m). Regular work attendance is regarded as an essential function of a job.

Although the record showed highly irregular work attendance in the past, the court determined that since the Plaintiff was medically cleared to return to work, her one-day absence for a stomach ailment did not mean she could not maintain regular attendance in the future. Additionally, the court found that a jury needed to decide whether the Plaintiff was fired because of her disability. Plaintiff requested to wear sneakers at work because of her foot impairments, for which she provided a note from her doctor. Although the Defendant offered a nondiscriminatory reason for the firing (lack of attendance), the court found that the Defendant’s response to Plaintiff’s request for accommodation, which included “snarky” emails, being fired in an irregular manner (without formal warning), and the general sequence of events, could lead a reasonable jury to find that the Plaintiff was actually fired because of her disability.

For employers, the takeaway is that exhausting FMLA leaves does not always serve as a risk-free basis for termination. Employees with chronic medical conditions may well have protections under the ADA that need to be evaluated before taking action to terminate employment.

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PHARMACIST FIRED FOR “POLICY VIOLATIONS” ALLOWED TO GO TO TRIAL ON FMLA RETALIATION CLAIM

A recent decision from a federal court in Massachusetts highlights the importance of consistent treatment of employees. Plaintiff was a staff pharmacist who suffered from migraine headaches and took both intermittent and continuous FMLA leave. Gudava v. Northeast Hospital Corp., C.A. No. 17-12414-NMG (D. Mass. 2020). All staff pharmacists were expected to work a combination of shifts, although some pharmacists were hired specifically to work overnight and evening shifts. Plaintiff’s doctor suggested that Plaintiff only be assigned to daytime shifts in the future so as to avoid recurrent migraine headaches. Although the Defendant had temporarily accommodated this request in the past, the hospital ultimately denied this request, claiming that this accommodation was unreasonable because it would create an undue burden as to scheduling the remaining pharmacists. Defendant instead countered with an offer to assign the Plaintiff to a per diem schedule, thus limiting her to only daytime shifts, but only after the full-time and part-time schedules had been completed. The Plaintiff found this offer to be “unacceptable.” Hospital audits revealed that the Plaintiff was not in compliance with hospital policies requiring pharmacists to follow certain protocols in substituting prescribed medications and counseling patients on their medications prior to discharge, for which Plaintiff was issued formal written warnings for “insubordination and noncompliance.” Plaintiff complained of discrimination and retaliation, and the hospital investigated, but found nothing to support Plaintiff’s claims. Plaintiff was also issued a warning for leaving work early without approval, and Plaintiff was fired shortly thereafter.

The Plaintiff claimed she had been retaliated against because she took FMLA leave. However, the hospital asserted that it fired the plaintiff for noncompliance with hospital policies. The court ruled that a trial was necessary to evaluate “true impetus” for Plaintiff’s termination because the hospital had treated other staff pharmacists differently and not terminated them for similar errors.

For employers, the Court’s decision re-emphasizes the importance of considering how other employees have been treated when considering termination. For employees claiming that they were unlawfully discriminated against or retaliated against because of a leave, proof can be evidence of different treatment of other employees that engaged in the same behavior.

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