Ask The Lawyer By: Daniel A. Gwinn, Esq. – How Long Can Employer Wait?
BOSS HAS SYMPATHY FOR WORKER, BUT CAN’T WAIT TIL ‘SOMETIME’ FOR HER TO RECOVER
QUESTION: Over a year ago, one of my best salespeople was involved in a horrific accident; the employee was injured, and a child was killed. We gave the employee 12 weeks of unpaid leave, and then another six months on disability. She returned to work, but her sales are drastically reduced, when compared to her work before the accident, and are well below the minimum required. We asked her what she needed to get back on track, and she said she just needed more time. She asked for another six weeks of leave. We gave it to her. When that leave expired, she asked for even more time to cope with PTSD and depression but could not give us a return date. I feel terrible for her, but being short one salesperson has made a big dent on our bottom line. I told her she had to return to work by the end of April. In mid-April she sent in another note, stating that she was still unable to work and needed even more time to recover from PTSD, anxiety and depression. When we asked for a definite return date, she did not respond. I reluctantly informed her that she was being terminated. We received a letter from her attorney last week, stating she was going to sue us for violating her rights under the Americans with Disabilities Act. Can she do this?
ANSWER: There is nothing to prevent the (former) employee from threatening to sue you, or even filing a complaint in federal court (the Americans with Disabilities Act is a federal law). But, if the facts are you claim, she does not have a legally valid claim, no matter how distressing her situation.
The ADA requires employers to make “reasonable accommodations” for workers living with a disability, so that the workers can perform the essential functions of their jobs. Allowing a worker who has trouble walking to have a desk near the entrance might be a reasonable accommodation, or buying a worker with low vision an extra-large monitor. A period of leave is also viewed as a reasonable accommodation in some cases, but with one important exception: Courts have ruled that when an employee has already received significant leave, a request for additional leave is not reasonable if the employee can’t give an assurance that the extra time off will enable them to return to work, Williams v A T & T Mobility Servs, LLC, 847 F3d 384, 394 (CA 6, 2017). No matter how tragic her situation, the fact is your salesperson has been off work for more than a year and has not been able to assure you that she will be able to return. Giving her even more time off, and holding her position open, would not be reasonable. Any claim she raises under the ADA would not have merit.
The number of lawsuits brought under the 1990 law have been increasing rapidly. The EEOC, which handles many of these complaints, received 18,108 cases in 1997, and 28,073 in 2016, before dropping slightly in 2017.
Although the law has been around for more than 30 years, many employers don’t understand what the law requires. Too often the result is a lawsuit.
One way employers get into trouble is by failing to develop a policy to address accommodation requests. Or, they take the time to create a policy, but then neglect to train managers on how to use it, leading to improper denials of reasonable requests from workers.
Some employers believe a worker has to be completely disabled to be eligible for ADA protections, and refuse to consider a “reasonable accommodation” request – like “no-heavy lifting” for a worker recovering from surgery – unless the worker is unable to perform any work. The ADA is for workers who can work, with a little help, and want to stay on the job – it’s not for those who are totally disabled.
Failing to participate in the “interactive process” is another ADA requirement that trips up a lot of employers: When employees request an accommodation that employers view as unreasonable, they reject the request without offering an alternative. Employees are not entitled to any accommodation they ask for, only one that is reasonable and will not cause undue hardship to the employer. For example, if a worker who is hard-of-hearing asks for an ASL interpreter to translate at all meetings, an employer could respond that the suggestion is unaffordable, and suggest an alternative that might meet he employee’s needs, while not causing any great hardship to the employer. The employer could offer to provide the employee with an agenda and minutes of the meeting (produced on the same day), or maybe an opportunity to talk one-on-one with a meeting organizer before or after the meeting to voice any concerns or offer suggestions, or even livestream captioning of the meeting.
In your case, it appears you were more than reasonable in the accommodations you granted your employee. Unfortunately, whether your former employee has a valid claim against you or not, she seems ready to sue. Your best option at this point may be to consult an attorney.
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ASK THE LAWYER
By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law
GWINN LEGAL PLLC
900 Wilshire Drive, Suite 104
Troy, MI 48084
(248) 970-0311 facsimile