Providing Employee With Crohn's Disease A Flexible Bathroom Break Schedule: “Time Theft” Or Reasonable Accommodation?
Lexology
Being moved closer to a bathroom doesn’t sound like it’s too burdensome an accommodation to an employee suffering from Crohn’s Disease – a condition included in the Americans With Disabilities Act (“ADA”) Amendments of 2008 as a disability.
But an employee at an Amazon call center alleges in a new ADA lawsuit that the strict corporate bathroom policy – which he alleges is “draconian,” “unyielding” and “inhuman” – did not yield to his requests for an accommodation such as “mov[ing] his work station closer to the bathroom, a one- to two-minute walk away; nor did it offer options for unscheduled or emergency bathroom breaks or any other changes in work structure to accommodate his disability, according to the complaint.”
Indeed, the employee claims that a company HR officer told him “that if the company accommodated his bathroom needs, it would have to do it for everyone”- which is not an ADA compliant policy.
The ADA provides that an employer has impermissibly discriminated against an employee claiming a disability where the employer has not made “reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability.” An employer to whom an employee raises the issue of a disability and requests a reasonable accommodation must engage in meaningful discussions with the employee as to the proposed accommodation. The EEOC has repeatedly stated that an employer has an “affirmative duty” to engage in this interactive process with the employee.
The employee in this new case alleged that “Episodes of symptoms of Crohn’s disease can occur without warning and can require urgent response, including the immediate need for bathroom facilities.” He claims that he was accused of taking “too much personal time” and that his bathroom use amounted to “time theft,” which he alleges was the reason for his firing.
Amazon has not yet responded to the complaint and so these are simply allegations.
NJ college violated Americans With Disabilities Act by not accommodating student with celiac disease
The Takeout
In July 2016, a student at Rider University in New Jersey filed a complaint to the Justice Department, arguing that the school failed to make proper accommodations for students with severe food allergies. The student has celiac disease, an immune disease triggered by gluten. NJ.com reports the Justice Department agreed that Rider’s policies were in violation of the Americans With Disabilities Act, which grants Congress the power “to address the major areas of discrimination faced day-to-day by people with disabilities.”
The university does not agree with that conclusion, but has agreed to make modifications to campus food preparation. One of those changes, a Rider spokesperson told NJ.com, includes a new food-prep area that excludes the most common foods that can trigger allergies. Per the terms of the settlement, Rider has also agreed to hire a full-time dietician to advise students on how to manage food allergies.
If you were unaware, as I was, that food allergies qualified as disabilities under the ADA, read up: According to the Asthma And Allergy Foundation Of America, allergies are usually considered disabilities under that law. Under Section 504, a disability impairs one or more of a person’s “life activities,” such as breathing, eating, moving around, etc. Because a food allergy impairs a person’s eating, it is considered a disability under the law.
Given new research that finds half of adults with food allergies developed them as adults, college dining halls could be an arena where people are potentially discovering new or worsening food allergies. And now we know they’re legally required to accommodate those diners.
Employee sues city alleging discrimination, retaliation
Enid News & Eagle
An employee who filed a federal lawsuit against the city of Muskogee is seeking back pay, lost benefits and compensation for pain and suffering, and mental anguish he believes is owed for alleged disability-based discrimination and retaliation.
Kent Kamp, who was hired in 2007 as a fitness coordinator at the Muskogee Swim & Fitness Center, alleges in his complaint that "his supervisor, Brooke Hall," first failed to promote him "because of a perceived disability." Kamp was promoted later as facility manager, but he alleges that was awarded only after he filed a grievance.
After the promotion, according to the complaint, Hall treated Kamp as if he were "disabled and incapable of performing his job duties." Kamp alleges she failed to "give him the tools he needed to complete" his duties to "ensure he failed in the position."
"The defendant took an adverse employment action against plaintiff when it demoted him from the position of facility manager," Daniel E. Smolen states in the complaint. "Plaintiff alleges defendant placed him in the position of facility manager as a ruse, to appear to be addressing his grievance, knowing the entire time it would demote him after completion of the ninety-day probationary period."
City Attorney Roy Tucker said the claims will be defended by the municipality's insurer, Oklahoma Municipal Assurance Group, which has appointed a lawyer to the case. Tucker said while Kamp pursued his grievance for lack of promotion through the Merit System Board, Kamp went straight to the Equal Employment Opportunity Commission to file his complaint after the demotion.
Kamp's formal complaint with the EEOC prompted the issuance by that agency a notice that gave him the right to sue for discrimination based upon discrimination for a disability. Kamp, who acknowledges having a learning disability in his complaint but capable of performing the duties of facility manager, alleges he was targeted for retaliation after his promotion because of his previous grievance.
Kamp, according to his complaint, was awarded the promotion to facility manager in December 2017 and was demoted in March 2018. His lawyers state in the complaint the facts "constitute discrimination based on disability in violation of the Americans With Disabilities Act" and retaliation for engaging in a protected activity of filing a grievance.
That grievance, which was heard by the Merit Board in November 2015, sparked an internal investigation of alleged discriminatory hiring and promotion practices. Human Resources Director Kelly Plunkett said then the internal investigation resulted with no disciplinary action being taken.
Murray v. Tanea
Dismissal of State Inmate's ADA Claims
Parrotta v. Peco Energy Co.
Employer moved for summary judgment in employee's action asserting ADA and FMLA retaliation claims after he was fired for a positive drug test where employer sent him to an EAP substance counseling program before terminating him and the court found employee admitted using marijuana, company policy called for termination after a first positive drug test and employee produced no evidence of pretext or that he was disabled or had invoked his rights under the FMLA. Motion granted.
Cooperative Dialogue: Game Changer or Minor Tweak?
While most employers have protocols for handling accommodation requests and were aware of the obligations under the ADA’s interactive process, the cooperative dialogue law imposes greater burdens on covered NYC employers.
In October 2018, an amendment to the New York City Human Rights Law (NYCHRL), which requires all New York City employers with four or more employees to engage in a “cooperative dialogue” with individuals who may be entitled to various workplace accommodations, went into effect. The new city law requires employers to “engage in good faith in a written or oral dialogue” regarding the person’s need for accommodation. This system is similar to the “interactive process” structure required under the Americans with Disabilities Act (ADA) and New York State Human Rights Law. With that similarity in mind, how much does the cooperative dialogue change the way New York City employers deal with accommodation requests and what must City employers know about the new law?
Interactive Process Under the ADA
The ADA is a civil rights law that protects individuals with disabilities, including prohibiting employers from discriminating against disabled persons in the workplace. Under the ADA, employers are urged to engage in a “informal, interactive process” with any employee who requests a disability accommodation. 29 C.F.R. §1630.2(o)(3). This procedure is referred to as the interactive process. The purpose of the interactive process is to encourage employers and employees to work together to determine whether an employee’s disability can be reasonably accommodated. This informal dialogue between the employer and employee can be entirely verbal and an employer only needs to demonstrate a good faith effort to provide the employee with a reasonable accommodation to comply with the law. Porter v. City of New York, 128 A.D.3d 448 (1st Dep’t 2015).
Further, an employer’s duty to engage in the interactive process only exists if there is evidence that a reasonable accommodation exists. Noll v. IBM, 787 F.3d 89 (2d Cir. 2015). Therefore, even if the employer does not engage the employee requesting an accommodation in good faith, if there is no evidence that an accommodation is possible, an employer does not violate the ADA for failing to engage in the interactive process. Id. Likewise, an employer is not liable for failing to explore any alternative accommodations proposed by the employee when the accommodation provided was reasonable. Id.
New Cooperative Dialogue Requirements
Under the new NYCHRL law, New York City employers with four or more employees are required to make reasonable accommodations for employees who request an accommodation related to: (1) disability; (2) religious beliefs; (3) pregnancy, childbirth or related medical conditions; or (4) being a victim of domestic violence, sex offenses or stalking. The four categories of accommodations covered by the cooperative dialogue law differ from the ADA’s interactive process, which only requires a dialogue for disability accommodation requests. The additional types of accommodations are included in the City law because religion, pregnancy and domestic violence status are protected characteristics under NYCHRL. Thus, New York City employers must be aware of, and engage in a good faith dialogue with employees who request an accommodation covered under the new law.
While the cooperative dialogue requirements are similar to the ADA interactive process, the law formalizes the procedure which employers must follow when an employee requests an accommodation. The law defines a “cooperative dialogue” as a:
process by which a covered entity and a person entitled to an accommodation, or who may be entitled to an accommodation under the law, engage in good faith in a written or oral dialogue concerning the person’s accommodations needs; potential accommodations that may address the person’s accommodation needs, including alternatives to a requested accommodation; and the difficulties that such potential accommodations may pose for the covered entity. 2018 N.Y.C. Local Law No. 59.
The good faith written or oral discussions are required to continue until the employer grants or denies the accommodation request. Under the ADA, conversations and determinations regarding requested accommodations can be entirely verbal and require no documentation. However, upon completion of the cooperative dialogue, the new law requires employers to create a written report containing a determination of whether the accommodation has been approved or denied. The report must either grant the employee a reasonable accommodation, or conclude that (1) no accommodation can be made without an undue hardship to the employer; (2) a reasonable accommodation was offered to the employee, but rejected by the employee; or (3) no accommodation exists that will allow the employee to perform the essential duties of the job. If an employer denies the request, it must give the reason for denial in the report. The employer needs to provide a copy of the report to the employee. Employers may not deny an accommodation unless the employer has engaged, or attempted to engage, in a good faith cooperative dialogue with the employee.
Another difference between the interactive process and the cooperative dialogue is that under the NYCHRL, every accommodation request must result in a conversation between the employer and employee, even if the request is unreasonable. In contrast, the Second Circuit held that employers are not required to engage employees in the interactive process where a reasonable accommodation does not exist. Noll v. IBM, 787 F.3d 89 (2d Cir. 2015).
Cooperative Dialogue Case Study
The following is an example of the cooperative dialogue process from the accommodation request stage through the employer’s decision. A pregnant employee in her third trimester works for an employer in New York City in a position that requires her to stand on her feet for long periods of time. The employee has exhausted her paid sick leave and does not wish to go on unpaid leave. The employee notifies her employer that she would like an accommodation that would either allow her frequent rest breaks or provide her with the ability to sit while performing her job. Under the ADA, the employer would have no obligation to engage in the interactive process with the employee, because pregnancy accommodations are not covered under the ADA. However, the cooperative dialogue law would require the employer to engage in a good faith dialogue with the employee to determine a reasonable accommodation.
After considering the employee’s request, the employer decides that providing the employee with frequent rest breaks is not an undue hardship and is more convenient than offering a seating arrangement due to the duties of the job. In order to maintain a record of the cooperative dialogue, the employer confirms the accommodation in an email with the employee. In addition, the employer memorializes the communication in writing, stating that the employee’s accommodation was approved, and provides a copy to the employee to conclude the cooperative dialogue. By providing the employee with a written report of the accommodation decision, the employer has satisfied its obligations under the cooperative dialogue law.
Conclusion
While most employers have protocols for handling accommodation requests and were aware of the obligations under the ADA’s interactive process, the cooperative dialogue law imposes greater burdens on covered NYC employers. These employers must now ensure a cooperative dialogue occurs between the employer and employee when an accommodation request is made, even if the request is unreasonable. The new law states employers who “refuse or otherwise fail to engage in a cooperative dialogue within a reasonable time” with an employee who requests an accommodation will risk a possible human rights charge. Under NYCHRL, there is no limit on compensatory damages that can be assessed for a human rights violation. In addition, attorney fees and punitive damages are available for human rights violations under NYCHRL.