Article by Capehart Scatchard

By: Ralph R. Smith, 3rd

One of the most important duties that is imposed by anti-disability discrimination laws is the obligation to accommodate the disabled employee in performing the essential job duties of a desired employment position.  As part of that obligation, both federal and New Jersey state law impose a duty upon the employer to engage in an interactive dialogue process after an employee requests an accommodation as part of the required effort to work towards finding a suitable accommodation.  One of the areas where employers get in the most trouble in complying with anti-disability discrimination requirements is in failing to adequately engage in this required interactive process.

A recent case from the federal court in Philadelphia demonstrates the potential legal pitfalls in not taking the required interactive process duty seriously.  In Lindsey v. St. Mary Med. Ctr., 2016 U.S. Dist. LEXIS 29180 (E.D. Pa. Mar. 7, 2016) a former employee of the defendant was able to survive the dismissal of her disability discrimination claim under the Americans with Disabilities Act (“ADA”) largely due to the fact that the employer did not meaningfully engage in the required interactive process after the plaintiff had requested an accommodation for her disability.

In Lindsey, the plaintiff formerly worked as an ultrasound technician at the defendant hospital. Due to back problems, the plaintiff was forced to take a medical leave under the Family and Medical Leave Act. (“FMLA”).  Approximately a week before her FMLA was set to expire, the plaintiff advised her employer that she could not come back at the expiration of her leave to her former position without the making of an accommodation limiting the number of patient tests she performed on a given work day.  The employer never responded to the request for an accommodation while plaintiff was on her FMLA leave. Instead, it waited until after the FMLA leave ran out, and after the plaintiff’s job position was eliminated, to inform plaintiff that her accommodation request was being denied.  Eventually, plaintiff was rehired after her firing for failing to return once her FMLA leave had expired.  Plaintiff was hired into one of the two part time technician positions that was created ironically from the elimination of plaintiff’s original technician position. Plaintiff subsequently injured her back once again and could not even work light duty jobs, which led to her second employment termination.

Plaintiff brought suit claiming that her firing violated the ADA. She also claimed that, upon her return to work in her part time position, she was subject to ridicule and retaliation for exercising her legal right to take a needed medical leave and request a workplace accommodation.  The employer sought a summary judgment dismissal of the claims, which was ultimately denied by the court.  In finding that the plaintiff had offered enough evidence of possible discrimination to have her case heard by a jury at trial, the court noted that a major reason for denying the application for dismissal was because of the employer’s failure to engage in any meaningful dialogue in attempting to reasonably accommodate plaintiff’s back issues before she was fired the first time.

The Lindsey case illustrates the dangers that can arise if an employer ignores a disabled employee’s request for a workplace accommodation.  Rather than ignoring such a request as the employer did in Lindsey, it is important that there be meaningful employer participation in the interactive process in a reasonable effort to try and work with the disabled employee towards finding an accommodation.  Had the employer in Lindsey done that, maybe the results could have been different.  The employer had a legitimate reason for denying the requested accommodation, that its operations could not support a reduced amount of patient tests by the plaintiff.  However, that is only part of the interactive process.  Had the employer considered other options, maybe the result in being unable to accommodate the plaintiff would have been the same.  But, by getting to that end point through engaging in an inactive process with the employee, the employer would have satisfied its legal duties and created a strong defense to any subsequent ADA claim.

Therefore, always remember the importance of the interactive process whenever a workplace accommodation request is raised by an employee in your workplace. Engage in that process in good faith, and always document your efforts as part of the process to establish a written history of your efforts in case any subsequent litigation ensues.