Employer's New Dilemma - Working with Others?

June 2015

By: Walter J. Liszka, Esq.

There are a vast number of employers who have had to deal with employee issues related, in some way, to an “employee disability”.  There are very few situations arising under a workman’s compensation scenario that do not require the employer to make “reasonable accommodation” to an individual who is returning to work from a workman’s comp injury and needs “work hardening”.  That is just one of the few issues that arises and exposes an employer to the breadth of the Americans with Disabilities Act (ADA).

As almost everyone is aware, in 2008, the ADA was amended with the intent of broadening the definition of “disability”.  In point of fact, as Congress clearly stated, it was the intent of the Americans with Disabilities Amendment Act of 2008 to make it “easier” for people with disabilities to obtain protection under the ADA.  The regulation, specifically 29 C.F.R. Section 1630.1, clearly established that “the primary objective of the attention in cases brought under the ADA should be on whether the covered entities (i.e. employers) have complied with their obligations and whether discrimination has occurred, not whether the individual meets the definition of a disability”.  Simply stated, it was the intent of Congress, through the amendments, to establish that determining whether or not an individual’s impairment was a disability cognizable under the ADA should not demand extensive analysis and not be in the basis to find “no coverage under ADA”.

Under a very recent case (Jacobs v. North Carolina Administrative Office of the Courts, No. 13-2212, United States Court of Appeals for the Fourth Circuit – March 12, 2015), the breadth of these amendments is now taking shape.  The Plaintiff in the above matter, Christina Jacobs, was initially hired as an Office Administrative Assistant in the Criminal Division of the North Carolina Administrative Offices of the Court and assigned the responsibility for microfilming and filing of documents.  Approximately a month later, she was promoted to Deputy Clerk, and her list of tasks expanded to record hearings assignments, possible court assignments and front desk customer service. Approximately one month into her employment, Jacobs was required to begin training to work at the front counter, but informed one of her supervisors that she has previously been treated for mental health issues and had been diagnosed with a social anxiety disorder.  She had been diagnosed, at the age of 10, with severe situation performance anxiety and at the age of 18, with “Social Anxiety Disorder”.  She requested, in an e-mail transmission to her three immediate supervisors (Deborah Excell, Jan Kennedy, and Melissa Griffin) that she be reassigned and trained in a different role, as an accommodation due to her Social Anxiety Disorder and not be assigned “front desk customer service”.  Simply stated, the Fourth Circuit Court of Appeals established that an individual who has an inability to interact with others or, in the alternative, suffers from anxiety when put in a situation of interacting with others may, in fact, be disabled. 
  
According to the Diagnostic and Statistical Manual of Mental Disorders [DSM-5(2013)], Social Anxiety Disorder is a “marked and persistent fear of social or performance situations in which a person is exposed to unfamiliar people or scrutiny of others”.  The “avoidance and/or anxious participation and/or distress” of being placed in a feared social performance situation affects the individual and causes that person’s normal routine to be impacted or disrupted from their normal occupational function.  Hence, Jacob’s concern about “front counter customer service”.

None of the three (3) supervisors acted on Jacobs' request and, in fact, indicated that they had no authority to act on this matter and that the authority solely resided with the Chief County Clerk, Brenda Tucker, who was then on vacation and who had hired Jacobs and promoted her to Deputy Clerk.  It should be noted that at no time during the term of her employment was Jacobs given any disciplinary action, performance review nor was she told that her job performance was below standard.  When Ms. Tucker returned from her vacation, she and the three (3) supervisors met with Jacobs, on or about September 29, 2009, and Tucker informed Jacobs that she was being terminated because she was “not getting it” and that the county had “no place to use Jacobs' services”.  This communication was made to Jacobs even though she had never been written up for any disciplinary infraction or performance issue nor did her personnel file indicate any problems with her performance. 

Needless to say, Jacobs filed a Charge of Discrimination alleging that she had been terminated due to her disability (Social Anxiety Disorder) and a favorable result emanated from the EEOC.  While the initial legal proceedings were dismissed by the District Court (U.S. District Court, Eastern District of North Carolina) under a summary judgment request by the County, on appeal, the Fourth Circuit reversed the District Court’s dismissal and agreed with the Equal Employment Opportunity Commission’s view that “interacting with others” is a major life activity and that “social anxiety disorder as a condition” interferes significantly with the person’s normal routine, occupational activities, functioning, and social activities and relationships and was a “disability” under the revised ADA.

While this type of decision gives a broad expanse to ADA coverage, and a potential of “great exposure” for any employer (how many jobs do not involve exposure to other people or scrutiny by others), it should also not go unnoticed that a factor in the Fourth Circuit Court of Appeals decision was their belief that the Clerk’s Office was attempting to create “pretext” to justify their action in terminating Jacobs (i.e. create a “solid discipline basis to terminate”).  As previously stated, during Jacobs' employment, there were no disciplinary actions showing lack of performance, nor, for that matter, any notes in her personnel file that established performance related problems.  In point of fact, Ms. Tucker had promoted Jacobs after a month on the job!  The fact that the county attempted to use performance related issues as a basis for the termination was probably a major factor in this case being decided in Jacobs' favor.

The author is aware of very few employment locations in which individuals are not required to interact with fellow employees or clients and this decision creates a fairly wide chasm for employer exposure.  Social Anxiety Disorder is not rare and if faced with the issue, great care must be taken to avoid the “pitfalls of liability”. Also, please note that, as in any situation dealing with employees, accurate and complete performance records are a must, especially if a person is, in fact, not doing all required job tasks.  Remember, to be entitled to a “reasonable accommodation” under the ADA, the individual must be able to perform “essential job duties”.

Questions? Call Attorney Walter J. Liszka of Wessels Sherman’s Chicago office: 312-629-9300 or email waliszka@wesselssherman.com.

Illinois Pregnancy Protections Expanded

September 2014
By: Walter J. Liszka, Esq.

On August 26, 2014, Illinois Governor Pat Quinn signed into law House Bill 8 (HB8) that amends the Illinois Human Rights Act (IHRA) by placing "new obligations on employers" with regard to their pregnant employees. While the law will not take effect until January 1, 2015, employers should be cognizant of the new obligations imposed upon them.

As most readers will remember, the IHRA had long standing prohibitions on employment discrimination "on the basis of pregnancy" (775 ILCS 5/2-102(H) and (I)). It is also well known that pregnancy by itself does not qualify as a disability under the Americans with Disabilities Act (ADA) and, therefore, an employer does not need to provide any reasonable accommodation to a woman based solely on her pregnancy. These facts raise questions in the mind of the author as to why Governor Quinn and the Illinois State Legislature are in such a rush to provide these modifications. It is even more curious since the Supreme Court will hear in the fall term the case of Young v. United Parcel Service, Inc., which will provide needed guidance on pregnancy and disability issues.
Regardless of the above facts, the IHRA has now been amended to provide not only the pregnancy protections previously under the Act, but also an entire new section (775 ILCS 5/2-102(J)) that requires what are called "reasonable accommodations."

The "reasonable accommodations" will have to be provided to women on account of pregnancy, childbirth, or medical or common conditions related to pregnancy or childbirth. Essentially, employers will have to treat pregnancy and pregnancy-related conditions like they treat any other disability under the confines of the ADA. These reasonable accommodations must be made to a pregnant applicant or employee, whether that employee is full-time, part-time, or probationary. The term "reasonable accommodations" means any reasonable modifications or adjustments to the job application process or to the work environment or to the manner or circumstances under which the position is performed. The Bill also provides a "non-exclusive list of reasonable accommodations" which includes:

• More frequent or longer rest breaks. 
• Private non-bathroom space for breastfeeding and related activities such as pumping milk. Reasonable and provided seating. 
• Assistance with manual labor.  
• Modification or adjustment of equipment. 
• Temporary transfer to less strenuous or hazardous position. 
• Reassignment to a vacant position. 
• Job restructuring.  
• Light duty or part-time modified work schedule. 
• Time off to recover from conditions related to childbirth. 
• Leave necessitated by pregnancy, childbirth or medical or common conditions related to pregnancy or childbirth. 

If, in fact, leave is afforded as some form of reasonable accommodation, the employee must be guaranteed to be reinstated to her original position or to an equivalent position with pay seniority, retirement, and fringe benefits. It is quite probable that based on the "medical conditions" that this type of leave for pregnancy could extend beyond what is required under the Family Medical Leave Act (FMLA) and the twelve (12) week limitations.

Employers may require medical documentation from the healthcare provider with regard to the need for a reasonable accommodation and employers must engage in the interactive process with the involved employee with regard to providing the proposed accommodations.

Obviously, this law, since it will apply to all employers having one (1) or more employees, will have a major impact on work conditions and day-to-day actions taken in any employment setting. How this law will square with any future Supreme Court decision is anyone's guess, but I am quite certain that the "legal skills" of Quinn, Madigan, and Cullerton are not on the same level as the "Supremes." Regardless, the wise employer will begin the analysis to deal with this legislation because any Supreme Court decision, at its earliest, is some time in the latter part of calendar 2015.

Questions? Contact Walter J. Liszka, Managing Shareholder of Wessels Sherman's Chicago office at (312) 629-9300 or by email at waliszka@wesselssherman.com .

Courts Bend the "Golden Rule"

June 2014
By: Walter J. Liszka, Esq.

Since I was a child back in the early 1950s, I was taught many things by my parents, including "treat others as you want to be treated" and "do not steal or take other people's property." Obviously, the Federal Court System and, specifically, U.S. District Court Judge William H. Orrick, have either never been taught these rules or they have conveniently been forgotten!

Judge Orrick, on Friday, April 11, 2014, refused to throw out an Equal Employment Opportunity Commission (EEOC) lawsuit against the Walgreen Company saying that the Walgreen Company had violated the Americans with Disabilities Act (ADA) when it fired a diabetic employee for eating an unpurchased bag of potato chips to stabilize her blood sugar. Judge Orrick's rejection of Walgreen's Motion for Summary Judgment allows the EEOC to continue to pursue its suit over the firing of Josephina Hernandez, who claims she opened and ate a $1.39 bag of chips to starve off a hypoglycemic attack. This taking of an unpaid-for $1.39 bag of chips is in clear violation of the anti-grazing policy of the Walgreen Company which estimates that it loses approximately $350 million in employee theft on a yearly basis. It should be noted that Hernandez claims that "there was no cashier available to take her payment for the chips." In the opinion of the writer, based on his personal observations and employment by the Walgreen Company for seventeen (17) years, if anyone believes that story, they would believe anything and everything the EEOC and Federal Government say!!

Does this now mean that employers cannot enforce theft policies against employees? Does this now mean that a pharmacist for the Walgreen Company or any other organization can "help himself or herself" to some prescription medication without a prescription? Does this now mean that taking "medical marijuana" is not subject to termination for reporting to work under the influence of a drug? Does this now mean that an employee who alleges that they are suffering from some disability can "help themselves to some cash" from the petty cash drawer to pay "in the future" for needed medication?

I am sure that my parents would "roll over in their graves" if they discovered that I was not following their teachings. Clearly, Judge Orrick and the EEOC would not be subject to concern or consternation because they obviously can excuse stealing. Time will tell how much "breaking of the rules" the EEOC or other government agencies will allow. Not surprising under our current administration!

Questions? Contact Walter Liszka, Managing Shareholder of Wessels Sherman's Chicago office at (312) 629-9300 or by email at waliszka@wesselssherman.com .