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Thursday, October 15, 2020

What we’ve got here is a failure to communicate


An employee suffers an injury that prevents her from operating a motor vehicle. With no means of transportation to travel to and from her workplace, the employee calls off work, believing that her absences were excused. They weren't, and the employer fires her for excessive absences.

She sues, claiming disability discrimination, in part because of the company's failure to accommodate her inability to drive.

In Hazelett v. Wal-Mart Stores, the 9th Circuit Court of Appeals concluded that the employee's ADA claim should have survived summary judgment.
[I]t appears that Wal-Mart failed to participate in the interactive process required under the ADA.… Wal-Mart failed to provide Hazelett two requested accommodations: that she be given leave until July 17, 2015, in her FMLA Medical Certification when she would be released to drive, and two, an assignment to an alternative job to which she could commute. 
What we've got here is a failure to communicate. Once an employer becomes aware of the need for a reasonable accommodation, the ADA obligates it to engage in an interactive process with the employee to identify and implement appropriate reasonable accommodations. That process requires communication and good-faith exploration of possible accommodations. An employer cannot dismiss, without discussion, accommodations. An employer cannot even rely on state workers' comp laws or standards. The interactive process is mandatory, period.

Communication between an employer and a disabled employee is the key to avoiding problems under the ADA. Do not commit the cardinal ADA sin of failing to communicate. Talk with your employees. You'd be surprised how many problems you can head off with a simple conversation.

* Photo Warner Bros. Entertainment / Public domain