The Employer's Legal Resource: Timing is Everything - Why You Have to Keep Track of What You Know and When

02.03.14

Kimberly Spurling worked the night shift at C&M Fine Pack, Inc. as a Forming Inspector / Packer. After several years, Ms. Spurling began having some difficulties. Specifically, she began getting write-ups for being sleepy at work, not being alert. This began in 2009.

On February 15, 2010, she left her work location and went to the restroom. She was gone for over 20 minutes and was found sleeping in the restroom by a coworker. This led to the company issuing Ms. Spurling a final warning / suspension letter.

Upon return from her suspension, Ms. Spurling met with the plant manager, Darrin Claussen and three supervisors. She told them that her issues were caused by some medication which had been prescribed. She gave them a doctor's note, reading "Pt was recently asked to discontinue medicine related to her passing out - please excuse symptoms [at] work."

Things did not improve. On April 12, another supervisor found her asleep when she should have been packing parts. He expressed concern both for her performance and her safety. She was issued a second Final Warning / Suspension on April 15. She was advised in this letter that she would be told no later than Monday, April 19, whether she still had a job. She was also told

"if you had further information that was relevant to our deliberation, you needed to contact [management] prior to Monday."

On April 16, Ms. Spurling told the HR Manager that the issues "might" be related to a medical condition. The HR Manager gave her a letter regarding the ADA and documentation for her doctor to complete. The paperwork stated it needed to be returned no later than April 30. (There was a dispute as to whether Ms. Spurling asked for a leave to get the paperwork completed.)

The HR Manager emailed the corporate HR VP, recommending Ms. Spurling be discharged but also noting that the ADA paperwork is in Ms. Spurling's hands and that she will be put on leave until that process is completed.

Ms. Spurling met with her physician on April 21. He completed the paperwork, noted she had a mental or physical disability covered by the ADA and noted that an additional medical work up was in progress. Ms. Spurling took the completed ADA paperwork that same day to the HR Manager and the Plant Manager.

Both the HR Manager and the corporate HR VP believed that the doctor's notation of an ADA covered disability was insufficient. The company proceeded with termination. On April 28, the HR Manager emailed the corporate HR VP the recommendation to discharge Ms. Spurling, which was approved.

"[W]e recommend the aggressive approach. Upon review of all the facts presented we feel that we did the interactive process during the progressive disciplinary process....there is an element of risk… we feel we did everything during the discipline process."

Ms. Spurling was informed of the company's discharge decision on April 28.

On May 27, 2010, Ms. Spurling received a definitive diagnosis of treatable narcolepsy.

Ms. Spurling sued under the Americans with Disabilities Act (ADA) claiming she had been discriminated against, specifically that the company had failed to properly accommodate her. The trial court threw the case out (in favor of the employer) finding that the employer had actually made the decision to discharge her on April 15, before it knew of any disability. However, Ms. Spurling appealed that decision, and the appellate court disagreed.

When was Ms. Spurling fired?

The Company argued it made its decision on April 15, before it knew anything from the physician and certainly before it knew about narcolepsy. There is a well-established principle:

[A]n employer would not be expected to accommodate disabilities of which it is unaware.

29 C.F.R. Appx. § 1630.9. However, that's not what happened. As is clear by the document on April 15, the employer invited Ms. Spurling to bring it additional information - and Ms. Spurling did bring it additional information. It was not until April 28 that the final recommendation to terminate was made, accepted, and communicated.

Did C&M properly accommodate?

Now we look at what happened after Ms. Spurling notified the company of her medical disability. On April 21, Ms. Spurling provided written documentation from her physician which stated he believed she had an ADA covered disability.

At that point, C&M did nothing but choose to disagree (though not even communicate that disagreement to Ms. Spurling or her physician.) According to the appeals court:

After an employee has disclosed that she has a disability, the ADA requires an employer to "engage with the employee in an 'interactive process' to determine the appropriate accommodation under the circumstances."

Instead of taking this approach, however, C&M decided simply to terminate her.

What should C&M have done?

Once Ms. Spurling provided information from her treating physician that he believed her to have an ADA-covered disability, that triggers the interactive process to determine whether the employer can accommodate any work restrictions. Of course, if the employer truly questions the finding of an ADA-covered disability, there are some limited options. (Given the unbelievably expansive definition, I always recommend seeking qualified legal employment counsel before questioning this.)

The more general course of action is to move forward with the interactive process. Ask the employee to have her physician provide written work restrictions which arise from the disability (e.g., cannot lift, must have period sitting, cannot understand verbal instructions, etc.). Providing the essential job functions (job description) to your employee to provide to her physician makes this process much more fruitful.

Once the work restrictions are identified, it is a collaborative process to determine whether there are reasonable accommodations. If there are, the employee is able to return to work. If there are not, the company may have no choice but to release the employee.

Remember, reasonable accommodations can include a wide variety of things (limited only by one's imagination). Common examples include job restructuring, modified work schedules, acquiring or modifying equipment, training, reassignments, or making work sites accessible.

Spending your time working through these issues in a timely fashion can save you time (and money) in the courts!

By Kristen L. Brightmire, kbrightmire@dsda.com

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Rebecca D. Bullard

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Rebecca represents clients primarily in labor and employment
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