One big mistake to avoid with disabled employees

by Michael Haberman on October 7, 2015 · 1 comment


Firing disabled employees will attract the attention of the EEOC

Firing disabled employees will attract the attention of the EEOC

The EEOC (Equal Employment Opportunity Commission) has been very active suing organizations for disability discrimination of late. In all three cases the employers made the same big mistake.

Cases

The EEOC has sued one grocery store and two hospitals for disability discrimination. In the case of the grocery store clerk she suffered a work related injury that severely limited her ability to lift items. The store initially reassigned her to another job performing light duty at the customer service desk. (My guess is what is happening here is that dreaded intersection of the ADA, Workers’ Comp and probably the FMLA.) After a period of time the store said she had exhausted her light duty time. They put her into unpaid time off and refused to continue the customer service job as a reasonable accommodation. Then they fired her.

In the first hospital case the employee was a disabled vet who had to have emergency surgery. He was scheduled to return at the beginning of October but asked for a two week extension as a reasonable accommodation. But the hospital had already hired a replacement 10 days earlier so….. then they fired him.

The second hospital had a nurse who suffered a seizure. Her doctor removed her from direct patient supervision. She asked for a transfer to an open position that did not involve direct patient care. As an alternative she asked for a leave of absence as a reasonable accommodation. The hospital denied both requests for accommodations. Then they fired her.

Recognizing the pattern here?

Fail to accommodate then fire

Previous case history has shown that the EEOC does not consider light duty, or transfer to an open position or an additional 10 days leave as unreasonable accommodations. Neither major job changes nor major amounts of time off were requested. Just the refusal to accommodate might have been enough to get these three organizations sued, but then they all fired the employee. That was the cardinal sin as far as the EEOC was concerned. As a result all three organizations were contacted and refused conciliation. The EEOC then filed suit against all three and the cases are waiting to be determined. We will see how they come out.

How to potentially avoid being sued

When you have an employee request an accommodation seriously consider that accommodation, not through your employer eyes, rather view them through the eyes of the EEOC to determine if the requests seem reasonable. Document that entire process and talk to the employee several times. Even if you don’t think the requests are reasonable don’t just automatically fire a disabled employee. Give them unpaid time off as an initial accommodation. Maybe they will recover. Maybe they will leave on their own accord. Maybe you will have to have further discussion. But if you fire them you are pointing a big neon arrow at yourself that says “Sue me.” Don’t make that mistake.


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