Disability Accommodation

Heavy Burden On Employers to Reasonably Accommodate Employees

Employer’s Duty to Reasonably Accommodate Employees

Alan Foster of the Foster Law Group is one of my trusted colleagues. He is an excellent attorney and works with a number of my employer clients assisting them with corporate formation issues, general business transaction work and even some employment law. He wrote an article regarding an employer’s duty to reasonably accommodate employees. I asked his permission to share it on my blog.

The article talks about an employer’s duty to reasonably accommodate employees, and what can happen when an employer fails to adequately engage in the interactive process of determining what, if any, accommodations will enable the employee to perform the essential functions of the job.

So, without further ado, here is Alan’s article:

Heavy Burden On Employers to Reasonably Accommodate Employee Disabilities

By Alan Foster

Reprinted with permission

In the recent California Federal District Court action of Thomsen v. Georgia-Pacific Corrugated, LLC the Court held that an employer might violate their obligations under California’s Fair Employment and Housing Act (“FEHA”) simply by requesting that an employee return to his doctor to obtain a note to outline additional work restrictions before the employee can return to work.

In Thomsen an employee went on worker’s compensation after injuring his shoulder and underwent surgery. He returned to work eight months later with a 30-pound lifting work restriction. Through an interactive process with the employer, the employee was assigned to a different job that was believed to satisfy the work restriction. However, after performing at the new job the employee complained to the employer that the long hours and manual operation of an overhead lever required by the job were exacerbating his condition. The employer’s Human Resources Department told the employee to return to his doctor to obtain a note so the employer could determine whether additional restrictions were needed beyond the 30-pound lifting restriction. The employee never returned to his doctor to obtain the note and the employer never followed up with the employee about it.

The employee ultimately refused to work an overtime shift and the employer terminated the employee when he failed to do so. The employee thereafter sued his former employer for disability discrimination and other related claims.

The Court rejected the employer’s argument that, because the employee failed to obtain an additional doctor’s note, his claims for failure to accommodate and failure to engage in interactive process should be dismissed. The Court determined that it was unclear whether the employee’s new position had met all of the employee’s work restrictions since the position still required occasional lifting beyond 30 pounds. The Court found the Company should have had a conversation with the employee in response to his concerns about the overhead lever and overtime hours, before it decided the employee had to
return to his doctor.

In addition, while the employee was fired for allegedly “abandoning his shift,” he presented evidence that employment termination was more severe for these infractions than the consequences provided for such conduct set forth in the Company’s written attendance policy. Consequently, the Court permitted the employee’s claims to go to trial.

The Thomsen decision distinctly shows that employers must follow up to solve many employment issues. A common sense request for additional medical information about an employee’s restrictions was found not to satisfy an employer’s duty to engage in the interactive process because the employer did not follow up on its request. The decision acknowledges that employers’ discharge their duty to engage in the interactive process is highly fact-intensive.

The Thomsen decision clearly indicates that courts expect that employers must take the lead role in the interactive process and cannot place additional burdens on employees to prove the need for reasonable disability accommodations for employees who return to work with work-related disability restrictions. Thus, before an employer decides to terminate an employee with a known disability it is imperative that the employer work with competent legal counsel to determine whether the employer’s proposed accommodations are reasonable under the circumstances.

Foster Law Group is a full-service business law firm dedicated to providing its clients with personal, responsive and cost-effective legal services. Its clients consist primarily of entrepreneurs, investors, emerging and middle market companies. Their services include strategic business planning, entity formation and ongoing counsel on operational issues, corporate finance and securities, intellectual property protection and counseling, employment and compensation, mergers and acquisitions, and real estate transactions.

Provided by Robert Nuddleman of the Nuddleman Law Firm, P.C.

The Nuddleman Law Firm protects the workplace. Our experienced and knowledgeable attorneys bring the highest level of advocacy to attain the results our clients deserve. We represent employers and employees, giving us an advantage over firms that only focus on one side or the other. Our experienced Northern California attorneys handle workplace discrimination, sexual harassment, wrongful termination, unpaid wages, disability discrimination, retaliation and other employment disputes.

If you have questions or need assistance with how to reasonably accommodate employees contact the Nuddleman Law Firm. We represent clients throughout Oakland, Berkeley, Pleasanton, Concord, San Jose, Alameda County, Contra Costa County, Santa Clara County and the Silicon Valley in California.

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