State and federal courts have made it clear that when an employee is disabled but wants to work, you must go the extra mile to determine whether you can offer a reasonable accommodation. This point was driven home again recently when the Ninth Circuit Court of Appeals upheld a large verdict for an injured employee who was told she couldn’t return to work without a full medical release and then was forced to resign. We’ll examine why these actions violated the Americans with Disabilities Act.
Employer Requires Full Release To Work
Linda Johnson, a groundskeeper for the Paradise Valley Unified School District in Arizona for 14 years, was severely injured on the job when a golf cart ran over her leg. When her doctor released her to return to work with some restrictions, the district employment director, Dr. Teri Traaen, told Johnson the district didn’t accept limited releases.
Then, after Johnson used up the 100 days of unpaid leave permitted under district policy, Traaen told Johnson that she had to resign or be terminated. Johnson requested either an extended leave to recuperate or to use up her 23 days of vacation and sick leave in the hope of getting a full release during that time. Traaen denied both requests. Instead Traaen allegedly encouraged Johnson to resign, suggesting she could apply for a new job once she obtained a full release.
Employee’s Job Applications Ignored
Three weeks after Johnson resigned, her doctor released her to work without restrictions. Over the next few months, she applied for 13 jobs with the district but wasn’t interviewed or hired for any of them. Each of Johnson’s applications was marked DNP for “do not process,” allegedly at Traaen’s direction.
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Bias Lawsuit Filed
Johnson sued, claiming the district discriminated against her in violation of the ADA because it regarded her as disabled even though she wasn’t. She pointed to the district’s refusal to allow her to work without a full release, her forced resignation, the refusal to allow her to use sick or vacation leave in violation of district policy and the failure to consider her subsequent job applications.
The district denied the allegations. It also argued that it didn’t consider Johnson’s subsequent applications because she’d had attendance problems and because of an incident, which Johnson denied, in which she allegedly came to Traaen’s office expressing anger over not being rehired.
Verdict Upheld
A jury awarded Johnson damages of $237,345. And now the federal Ninth Circuit Court of Appeals, which covers California, has upheld the verdict, finding there was sufficient evidence for the jury to have concluded that the district violated the ADA. The district’s refusal to rehire Johnson indicated that it regarded her as disabled from the major life activity of working. And the district’s policy of requiring full releases suggested that it regarded Johnson, and other injured workers, as unable to perform any job. Plus, Johnson’s attendance record was mentioned to her only twice during her 14 years and she was still promoted, which suggested that the reason the district gave for not rehiring her was a pretext for discrimination.
Avoid Mistakes
Here are some tips to help avoid the mistakes the district made:
- Don’t require full releases. Policies that arbitrarily prohibit disabled employees from returning to work until they are fully healed violate the ADA. Instead, you must assess each case to see whether the worker can perform the essential job functions with or without an accommodation.
- Document performance issues. Before disciplining a disabled worker, it’s critical that performance problems are well documented and your actions are consistent with the employee’s personnel record. The district pointed to Johnson’s prior absenteeism to support its refusal to rehire her, but this conflicted with her record of promotions and favorable reviews—and, therefore, suggested bias.
- Consider a leave of absence. The ADA may require you to hold a person’s job open for longer than your leave policy calls for if it would be a reasonable accommodation. So you can’t simply rely on a company policy limiting the amount of time off without carefully evaluating whether the employee may be able to perform the job after a longer leave.