Common ADA Screw-up’s – Not Documenting That Individual Interaction Process

Common ADA Screw-up’s – Not Documenting Individual Interaction With Employees Who May Have Disability Conditions

I will start blogging about various common mistakes in several areas, including the ADA, OSHA compliance, and investigation/discipline and discharge.

As a starting point, I hope you are aware that under the amended ADA, darned near everyone can have a disability condition or argue that the Company perceived them as having a disability condition. I also assume that everyone knows that disability-type charges are up over 30% in the last few years and the EEOC is feeling newly emboldened since the election.

A recent decision involving a hotel and a self-admitted bi-polar employee seeking transfer indicates various trip hazards, so to speak.

The employee starts as food and beverage attendant at the hotel. Unionized employer, but no contract provision on reasonable accommodation. Contract required seniority to be followed in determining days off, shift-transfers and vacation days, and as you may know, in many situations, contract provisions may trump accommodation rights.

Employee starts manifesting behavior consistent with drug or alcohol impairment, as well as missing work, including when the employee fell asleep in her car. She was diagnosed with bi-polar disorder, but welcomed back. All good so far. She relapsed, missed work and was hospitalized again.

The employee went to HR, explained her condition and requested a transfer to another shift because she felt that her shift was gossiping about her. The HR Director was sympathetic but denied the transfer because of the contract’s seniority provisions.

The employer rightly expected to knock out the claim at summary judgment because it felt that it followed the contract and had been quite supportive.

The court disagreed, denied summary judgment and allowed the matter to proceed. The employer may certainly win this case in trial, but the goal was to avoid that expense through summary judgment. Putting aside the fact that I believe that the Judge was over generous in its conclusions (or just wrong) the decision indicates how closely courts are now scrutinizing your documented efforts to accommodate an employee, as well as the harm caused by the behavior or performance involved.

The Court rejected the argument that the contract required strict adherence to seniority by pointing to a phrase saying that the contract allowed waiver of seniority in “exceptional circumstances.” The Court said that there was no documentation that the Hotel engaged in the required “interactive process” to try to determine an accommodation, including whether the seniority system might be waived. The Hotel simply looked at the contract and said “no.” HR should have engaged in some analysis and if it still said “no,” at least documented this process.

The Court also speculated that although the long-suffering hotel documented many absences, it had not documented analysis of whether the absences could have been addressed by reasonable accommodation, including transfer. Finally, as a parting shot, the Court astringently noted that the hotel worked with the employee until the employee self-identified their bi-polar disorder.

What do I take from this decision? First, avoid this Judge. Second… do not make knee-jerk decisions or allow documentation to make it appear that you did not carefully chew through reasonable accommodation possibilities.

We can talk another time about when and how you can ask an employee about their condition, but that was not an issue in this case. Also, focus on the performance issues, not the condition. And consider how those e-mails look. I hate to be such a “lawyer,” but draft them as if they may be exhibits… because, well, they may be.

About mavity2012

I am a Senior Partner operating out of the Atlanta office of Fisher & Phillips LLP, one of the Nation’s oldest and largest management employment and labor firms. My practice is national and keeps me on the road or in one of our 28 offices about 50 percent of the time. I created and co-chair the Firm's Workplace Safety and Catastrophe Management Practice Group. I have almost 29 years of experience as a labor lawyer, but rely even more heavily on the experience I gained in working in my family's various businesses, and through dealing with practical client issues. Employers tell me that they seldom meet an attorney who delivers on his promise to provide practical guidance and to be a business partner. As a result, some executives probably use different terms than “practical” to describe my fellow travelers in the profession. I don't enjoy the luxury of being impractical because I spend much of my time on shop floors and construction sites dealing with safety, union and related issues which are driven by real world processes and the need to protect and get the most out of one's most important business assets ... its employees. That's one of the reasons that I view safety compliance as a way to also manage problem employees, reduce litigation and develop the type of work environment that makes unions unnecessary. Starting out dealing with union-management challenges and a stint in the NLRB have better equipped me to see the interrelationship of legal and workplace factors. I am proud also of my experience at Fisher & Phillips, where providing “practical advice” is second only to legal excellence among the Firm’s values. Our website lists me as having provided counsel for over 225 occasions of union activity, guided unionized companies, and as having managed approximately 450 OSHA fatality cases in construction and general industry, ranging from dust explosions to building collapses, in virtually every state. I have coordinated complex inspections involving multi-employer sites, corporate-wide compliance, and issues involving criminal referral. As a full labor lawyer, I oversee audits of corporate labor, HR, and safety compliance. I have responded to virtually every type of day-to-day workplace inquiry, and have handled cases before the EEOC, OFCCP, NLRB, and numerous other state and federal agencies. At F & P, all of us seek to spot issues and then rely upon attorneys in the Firm who concentrate on those areas. No tunnel vision. I teach or speak around 50 times per year to business associations, bar and professional groups, and to individual businesses. I serve on safety committees at three states’ AGC Chapters, teach at the AGC ASMTC
This entry was posted in ADA, aging workforce, discipline and discharge, EEOC, hospitality, litigation, workers comp and tagged , , , , . Bookmark the permalink.

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