Thursday, May 3, 2018

THIS is how you reasonably accommodate a disabled employee


Photo by David Pisnoy on Unsplash
I’ve spent a lot of time over the past 16 months discussing bad employers—those that so mishandled employees that they earned a spot on my list of America’s Worst Employers.

Today, I thought I’d take a look at the brighter side—an employer that handled a tricky employee issue correctly.

Jablonski v. WalMart (9th Cir. 4/26/18) concerns an issue that often confounds employers and presents many opportunities for mistakes that lead to difficult lawsuits—the sick or injured employee who needs repeated reasonable accommodations.

Lidia Jablonski worked as a supervisor in the dairy, frozen, and meat departments of a Las Vegas WalMart. She took 12 weeks of FMLA following a workplace injury suffered from a falling box of frozen chicken.

Here is how WalMart accommodated Jablonski’s injury following her FMLA leave:

  • Near the end of her leave, WalMart reached out to Jablonski to see if she needed an additional leave of absence, which it granted upon her request.
  • When that leave expired, Jablonski’s doctor certified her to return to work under certain temporary restrictions. Accordingly, WalMart offered, and Jablonski accepted, a 90-day temporary cashier position under WalMart’s Temporary Alternate Duty program.
  • Ultimately, Jablonski’s doctor released to permanent light-duty restrictions. Two supervisors met with her and offered the only vacant position at the store at the time that fit her restrictions, as a part-time cashier.
  • Jablonski declined the offer, stating that she could only accept a full-time cashier position. Since there was no such position available, WalMart considered her “voluntarily terminated.”

Jablonski sued, and lost. And appealed, and lost.

As noted by the court of appeals:
WalMart officials corresponded with her about her leave, granted multiple leave requests, and spoke to her about her future position. WalMart offered Jablonski several accommodations: personal leave when she ran out of FMLA leave, a ninety-day TAD position that accommodated her medical restrictions, and eventually a permanent cashier position—which she rejected. Jablonski argues that WalMart should have transferred her to another store. But she did not ask to be transferred at the time, and she has not presented any evidence that there were vacant positions for which she was qualified at other stores.

The lessons?
  1. When you can demonstrate a documented history of accommodating an employee’s disability, you make it that much more difficult for the employee to establish discriminatory animus, even if you later deny an accommodation request or even terminate the employee.

  2. The ADA does not require employers to be mind readers. If an employee does not request a certain accommodation as part of the interactive process, an employer is not obligated to offer it. Thus, even though Jablonski later complained that WalMart did not offer her a full-time cashier position at a different store, she also did not ask for a transfer to an open position.

  3. The ADA also does not require employers to create positions that do not exist as accommodations. It only requires transfers to open and available positions for which an employee is qualified. Thus, WalMart had no obligation to create for Jablonski a full-time cashier position within her store. Because the only open and available position was part-time, WalMart met its obligation.

Next time you are faced with the difficult situation of a disabled employee who needs repeated accommodations, think of WalMart, and this case, and ask, have we done all that we could have done for this employee, or is there more we can do? How you answer this question will tell you if you have best positioned yourself to defend a discrimination or reasonable accommodation lawsuit.

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