By: Claudia D. Orr, Plunkett Cooney
As you may know, the United States Court of Appeals for the Sixth Circuit has become more pro-employee over the last decade or so much to my disappointment. So when I saw a new published decision by the appellate court that focused on the Americans with Disabilities Act, I was fairly certain how it would come out. Unfortunately for employers, I was right. Let’s look at the case.
Fisher v. Nissan North America, Inc. is a case that arose out of the Middle District of Tennessee. In 2003, plaintiff Michael Fisher began working for Nissan as a production technician attaching doors, hoods and trunks on vehicles as they pass by on the production floor. He generally received positive performance reviews and one noted that he had a great attitude.
Unfortunately, Fisher’s kidney function had declined by 2015. When Fisher requested a transfer to an easier position, his supervisor responded “I could put you somewhere, but it ain’t for this kind of stuff. You just need to go on, go on out.” So, that is what Fisher did. He “went on out” on an extended leave of absence drawing long term disability pay.
But, there is a happy twist to the story. Fisher received a kidney transplant in Aug. 2016. While he still felt sick and fatigued, his long term disability pay was running out and Nissan’s human resources department warned him that if he was not able to extend his leave, his job would end. He was also warned that he would not be permitted to return with restrictions. At Fisher’s prompting, his physician cleared him to return to work on Monday, Oct. 17, 2016.
Fisher was returned to work in a position that everyone thought would be easier, but it wasn’t. When he asked if he could take extra breaks or work half time, Nissan refused. Fisher asked his supervisor if he could transfer to another position and was told “yes, maybe, you know, we’ll see.” Clear as mud.
Just three days later, Fisher’s physician had a change of heart and wrote Nissan indicating that Fisher was risking his health and needed at least another month off to build up his strength, and that ideally he would be returned working half-time before returning to full-time work. Thus, before the transfer request was decided, Fisher was granted additional leave.
In late November, Fisher was cleared to return to work before his extended leave ended. Nissan was asked to provide frequent bathroom breaks to prevent damage to the new kidney. Also, because Fisher still hadn’t acclimated to the anti-rejection medicines, he suffered flu-like symptoms and needed time off for doctor’s appointments. He began to miss work and was disciplined for his absences.
Each time he was disciplined, Fisher described the transplant and the symptoms he suffered and requested accommodation, including a transfer to an easier job. His supervisor expressed sympathy but added “my hands are tied.” Fisher was denied working half-time and, because Nissan made such a big deal about the bathroom breaks, he eventually stopped requesting them.
On Feb. 3, 2017, Fisher was issued a final warning. Fisher claimed one of the human resources representatives stated the following during that meeting:
Nissan needed restrictions, not suggestions, and Fisher responded that he had not been permitted to return to work with restrictions. The representative “went ballistic” and said that Fisher could not “just be going home for a stomachache.” According to Nissan’s notes from the meeting Fisher said that the company was “not willing to work with [him]” and requested “another job.” Human resources asked, “If you cannot come to work, what will moving you to another job accomplish?” Fisher responded, “Let’s do it and we’ll see.”
There was no further discussion concerning a possible transfer. Instead Fisher received the final warning. Lesson number one: no matter how frustrated management becomes with an employee’s medical issues and absenteeism, it can never be displayed to the employee. Comments, demeanor, and tone will all be interpreted by the employee and used against the company.
As Fisher left the meeting, “a representative told Fisher that he had never ‘seen anybody come back’ from a final written warning.” I guess it’s unnecessary for me to discuss lesson number two.
Fisher left the building without telling anyone, including his supervisor, and never returned. A week later he was fired for absenteeism.
I don’t know about you, but I immediately thought Fisher’s actions equated to job abandonment. He walked off the job and then there were several days of no call, no show, right? But read on.
Fisher filed a lawsuit claiming, among other things, that Nissan failed to accommodate his disability. The district court granted Nissan’s motion to dismiss and Fisher appealed.
The appellate court reversed. It explained that when the plaintiff is claiming a failure to accommodate, the claim necessarily involves direct evidence of discrimination. Nissan argued against such a per se rule, noting that it would go against numerous previously published opinions of the appellate court. The court rejected that argument stating that all of those cases were wrong because they had all relied on a case decided under the Rehabilitation Act.
For failure to accommodate claims, the plaintiff must show: (1) he has a disability, and (2) that he is “otherwise qualified” for the job at issue despite the disability: (a) without accommodation, (b) with an “alleged” essential job requirement eliminated, or (c) with a reasonable accommodation. The court emphasized that Nissan had to prove (1) that the essential job requirement at issue was in fact essential (and therefore a business necessity), or (2) that the proposed accommodation would be an undue hardship.
Here’s one of the problems with a per se direct evidence rule: while an employer may use a legitimate, nondiscriminatory reason as a “shield” when indirect evidence of discrimination is required, “such a ‘neutral policy is of no moment’ under the direct test.”
The appellate court explained that a school lacking an elevator could not deny a teacher with mobility problems classes on the first floor and then fire the teacher for being late to classes on the second floor. Ok, that makes sense.
But I still have a beef with the court’s analysis. What about no call/no show and walking off the job without telling his supervisor? There is no discussion about this in the court’s opinion, but Fisher’s failure to follow these rules seems unrelated to his disability and sounds like a lawful reason for discharge. Rather than terminating Fisher for attendance, perhaps his voluntary resignation should have been accepted following his job abandonment. But, we don’t know whether Nissan had the right rules in place to do this. This may be lesson number three.
The court indicated that there were three potential accommodations that could have assisted Fisher with his return to full-time employment (a transfer to an easier job, extra breaks, or a temporary part-time schedule). On remand, the focus may be on whether there were other vacant positions that Fisher was qualified to perform that would have better accommodated his condition and, if so, whether assigning him to such position was an undue hardship.
The court also discussed the ADA’s “mandatory” interactive process. “If the interactive process was triggered [by the employee’s request for an accommodation] but not successfully resolved, ‘courts should attempt to isolate the cause of the breakdown and then assign responsibility.’”
The court found Nissan’s initial attempts to be in good faith. It initially assigned Fisher to a different job that was thought to be easier and granted him more leave when he discovered he was not ready to return to work. But, when he returned to work, still struggled and suggested he should be transferred again, Nissan dropped the ball. Thus, the appellate court found that Nissan was not entitled to summary judgment of the failure to accommodate claim.
As a general rule, the party who fails to engage in this process in good faith will lose. Lesson number four: Employers should always propose counter-solutions during the interactive process and not just say no to what is being requested. Nor should an employer ever decide what it will and will not do before sitting down and talking with the employee.
Finally, keep in mind, it is not one and done. Medical conditions change and accommodation outcomes are not always successful. Sometimes further discussions and different accommodations need to be tried. Be flexible. Be creative.
But, employers also have some rights. An employer has the right to receive some basic information including (1) a confirmation of the medical condition/disability (if not obvious and if not otherwise already disclosed in other documentation such as disability insurance paperwork), (2) the affect and extent of the medical condition on the employee’s ability to perform major life activities and/or his major bodily systems, (3) whether the employee has the ability to perform the essential functions of the job (with or without reasonable accommodation), and (4) whether accommodation is needed and, if so, for how long. Other questions may be appropriate depending on the circumstances, but the Equal Employment Opportunity Commission has indicated that using the same questionnaire all the time will violate the ADA. The questions posed should be appropriate to the circumstances.
One of the federal circuits has taken the position in the last year or so that providing a leave of absence is not reasonable accommodation because the ADA is intended to assist the employee in doing his job, and not to avoid the job altogether. That is not the Sixth Circuit’s position, but perhaps one day the Supreme Court will weigh in on the issue. Until it does, generally speaking, employers in the Sixth Circuit (Kentucky, Tennessee, Ohio and Michigan) with 15 or more employees must provide an employee with a leave of absence as long as it is medically necessary until the employer can show it causes an undue hardship. Incidentally, “undue hardship” is far more than an inconvenience and, the larger the employer and more resources and employees it has, the more difficult it is to demonstrate.
The ADA presents some of the most complex legal issues facing employers today. If you need assistance with issues under the Americans with Disabilities Act, contact an experienced employment attorney, such as the author.
This article was written by Claudia D. Orr, who is Secretary of the Board of Detroit SHRM, a member of the Legal Affairs Committee, and an experienced labor/employment attorney at the Detroit office of Plunkett Cooney (a full service law firm and resource partner of Detroit SHRM) and an arbitrator with the American Arbitration Association. She can be reached at email@example.com or at (313) 983-4863. For further information go to: http://www.plunkettcooney.com/people-105.html.
Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. March 2020.