Best Ohio Disability Discrimination Lawyer Answer: Does an employer have to accommodate restrictions? Can my boss make me be fully released before returning to work? Does my job have to accommodate my disability? What qualifies as a disability for reasonable accommodation? Can my employer have a blanket policy of only accommodating workplace injuries? What is the employer’s responsibility to accommodate a disability? Can My Job Have A 100% Healed Policy?
Under both
state and federal law, an employer has a legal duty to accommodate its disabled
employees. As
our employment law attorneys have
blogged about before, under the Americans
with Disabilities Act (“ADA”) and Ohio Revised Code § 4112, an employer has a legal
duty to accommodate its disabled employees. Therefore, it is
unlawful for an employer to terminate, refuse to hire, or otherwise
discriminate against an employee because of the employee’s disability. (See Can My Boss Fire Me Because He Thinks I’m Disabled?; My Job Is Discriminates Against Me Because I’m Disabled!).
Further employers are required to provide reasonable accommodations to
employees who, either with or without such accommodations, are qualified to “perform
the essential functions of the employment position.” (See Top Disability Discrimination Lawyer Reply: How Do I Get A
Disability Accommodation At Work?; Top Disability Discrimination Lawyer Reply: Can I Bring A
Service Dog To Work As A Disability Accommodation Under The ADA?; Disability Discrimination: Is Late Arrival A Reasonable ADA
Accommodation?).
Recently,
in Morrissey
v. Laurel Health Care Co., 943 F.3d 1032 (6th Cir. Dec.
3, 2019), the United
States Court of Appeals for the Sixth Circuit reiterated an employer’s duties
to accommodate employees. In Morrissey, the Sixth Circuit addressed how
the ADA’s 2008 amendments effect how courts analyze disability claims. The
Sixth Circuit also examined Laurel Health Care of Coldwater’s internal policy
of only providing accommodations to disabilities that resulted from workplace
injuries.
Rita
Morrissey is a licensed practical nurse, who worked for Laural of Coldwater in
Michigan from 2001 until she was forced to quit in 2016. In January 2012,
Morrissey informed Coldwater that she had physically debilitating medical
conditions in her back. Morrissey told Coldwater that due to these conditions,
Morrissey was unable to work for more than 12 hours per day. Now, for most
employees, an 8-hour day is typical. Thus, asking to limit your day to “only”
12 hours seems quite reasonable.
To
support her disability claim Morrissey provided Coldwater with three notes from
medical professionals, one from her doctor and two from a nurse practitioner.
All three doctors notes stated that Morrissey was disabled and was unable to
work for more than 12 hours at a time.
In February 2012, just one month after Morrissey had disclosed her disability, and need for accommodation to Coldwater, Coldwater’s management called a staff meeting. At the staff meeting, management stated that Coldwater would not provide accommodations for any medical condition, unless that medical condition was the result of a work-related injury. Management even went so far as to tell employees that they must have any current restrictions lifted and that their jobs depended on it, enforcing a 100% Healed Policy.
First of all, a full health policy, 100% Healed Policy, or a blanket no restriction policy is illegal. (See Can I Be Fired Because I’m Not Fully Healed After A Leave?). “That the policy was unlawful is clear. Courts have consistently found that policies prohibiting injured employees from returning to work unless they can do so ‘without restrictions’ violate the ADA.” EEOC v. Yellow Freight System, Inc., 2002 WL 31011859, *20 (S.D.N.Y. Sept. 9, 2002). The rationale behind this law is also clear: “the determination of whether one qualifies as a qualified individual with a disability necessarily involves an individualized assessment of the individual and the relevant position… a ‘must be cured’ or ‘100% healed’ policy is a per se violation of the ADA because the policy does not allow a case-by-case assessment of an individual’s ability to perform essential functions of the individual’s job, with or without accommodation.” Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 699 (7th Cir.1998)(internal citations and quotes omitted). Stated another way, a “per se bar conflicts with the basic premise of the ADA, which grounds accommodation in the individualized needs of the disabled employee and the specific burdens which such accommodation places on an employer.” Stephenson v. United Airlines, Inc., 9 Fed.Appx. 760, 765–66 (9th Cir.2001).
In Henderson v. Ardco, Inc., 247 F.3d 645, 653 (6th Cir.2001), the United States Court of Appeals for the Sixth Circuit held that a case cannot be dismissed on summary judgment when there is a 100 percent health rule (100% Healed Policy?).
On summary judgment, though, the importance of the 100% Healed rule is its role in determining the threshold issue of perceived disability. See Burns, 222 F.3d at 253 (stating that a plaintiff’s “ability to show that he is ‘disabled’ within the meaning of the statute is a ‘threshold requirement’ for recovery under the Act”). Where the 100% rule is applied to mildly impaired persons to exclude them from a broad class of jobs, it may be treating them as disabled even if they are not, thereby qualifying them for protection under the ADA and parallel statutes, and activating the individual assessment rule. The variability of the impairment-relevant job requirements within the business applying the 100% rule is thus important, because it indicates the breadth of the class the employer perceives when the employer applies the rule.
Further,
in McGregor v. Natl. R.R. Passenger Corp.,
187 F.3d 1113, 1116 (9th Cir.1999), the United States Court of Appeals for the
Ninth Circuit held:
McGregor alleges that
Amtrak officials repeatedly told her that she could not return to work or bid
on any other position until she was “100% healed,” and that such a policy is a per
se violation of the ADA. McGregor is correct in noting that “100% healed”
policies are per se violations of the ADA. A “100% healed” or “fully
healed” policy discriminates against qualified individuals with disabilities
because such a policy permits employers to substitute a determination of
whether a qualified individual is “100% healed” from their injury for the
required individual assessment whether the qualified individual is able to
perform the essential functions of his or her job either with or without
accommodation. See Hendricks–Robinson v. Excel Corp., 154 F.3d 685, 699
(7th Cir.1998); Weigel v. Target Stores, 122 F.3d 461, 466 (7th
Cir.1997) (stating that the determination whether one qualifies as a qualified
individual with a disability “necessarily involves an individualized assessment
of the individual and the relevant position”); Norris v. Allied–Sysco Food
Servs., Inc., 948 F.Supp. 1418, 1437 (N.D.Cal.1996); see, e.g., Heise v.
Genuine Parts Co., 900 F.Supp. 1137, 1154 & n. 10 (D.Minn.1995)
(holding that a “must be cured” or “100% healed” policy is a per se
violation of the ADA because the policy does not allow a case-by-case
assessment of an individual’s ability to perform essential functions of the
individual’s job, with or without accommodation); Hutchinson v. United
Parcel Serv., Inc., 883 F.Supp. 379, 397 (N.D.Iowa 1995) (same); Sarsycki
v. United Parcel Service, 862 F.Supp. 336, 341 (W.D.Okla.1994) (holding
that under the ADA “individualized assessment is absolutely necessary if
persons with disabilities are to be protected from unfair and inaccurate
stereotypes and prejudices”). As we have noted, whether Amtrak has a “100%
healed” policy or its functional equivalent is a disputed issue of material
fact which makes granting summary judgment on this issue inappropriate.
A
perfect example is found in Barton v.
Checkers Drive-In Restaurants, Inc., 2011 WL 1193061, *3 (E.D.La.Mar. 28,
2011), in which, the United
States District Court for the Eastern District of Louisiana
held:
“100% healed” policies
are per se violations of the ADA because the “100% healed” or “fully healed”
policy discriminates against qualified individuals with disabilities and
permits employers to substitute a determination of whether a qualified
individual is “100% healed” from their injury for the required individual
assessment whether the qualified individual is able to perform the essential
functions of his or her job either with or without accommodation.
Now
getting back to our story, Morrissey never agreed to lift her 12-hour work
restriction.
Morrissey’s
work restriction was not an issue for much of her employment. Morrissey was
usually scheduled for eight-hour shifts and rarely worked over her scheduled
hours. However, around August 2015, Coldwater announced that it would begin
scheduling nurses in Morrissey’s department to work 12-hour shifts. This was
problematic for Morrissey as when she was working a 12-hour shift, if her
replacement did not arrive on time, she would be required to stay over. This
resulted in Morrissey working for more than 12 hours on multiple occasions.
When Morrissey brought this up to her supervisor, the Director of Nursing Jeanine
Hayes, Hayes would tell Morrisey that there was nothing she could do about it.
In an attempt to work within her medical restrictions, Morrissey asked to be transferred to a unit where the nurses worked eight-hour shifts. This is obviously be a reasonable accommodation request if there was an opening. Alternatively, Morrisey asked to be allowed to go to “casual status,” where she would not be required to work more than 12 hours. Hayes denied both of Morrisey’s requests, telling her that Hayes could not transfer her, and that Coldwater was phasing out casual status employees, again enforcing a 100% Healed Policy.
Soon
after Coldwater implemented its new 12-hour shift policy, Morrissey’s work
conditions dramatically changed. On January 31, 2016, Morrissey was scheduled
for a 12-hour shift, but she was required to stay an hour and a half over
because the nurse for the next shift was running late. After learning that she
would have to work more than twelve hours, Morrissey reminded her manager that
she had a 12-hour work restriction that had to be honored under the ADA.
Despite Morrissey’s reminder, the manager told Morrissey that she was unaware
of any limitation and that the manager had “no control” over the situation.
A few
days later, on February 4, 2016, Morrissey was told that she would be required
to work a 16-hour shift because a replacement nurse had called off work that
day. Morrissey protested, pointing out that it was not her turn to be mandated
to stay over. In fact, it was Nurse Marci Farmer’s turn. Farmer later corroborated
that it was her turn to be mandated in her affidavit submitted to the court. In
the middle of her 16-hour shift, Morrissey went to speak with Hayes about being
held over. Hayes’ response was to tell Morrissey that there was nothing Hayes
could do. Frustrated and defeated, Morrissey left before the end of her
extended shift and never returned.
Morrissey
brought claims against Coldwater under the ADA for disability discrimination,
failure to accommodate a disabled employee, and retaliation. However, the lower
court dismissed Morrissey’s claims on summary judgment. The district court held
that Morrissey had not established that she was disabled, that she had not
suffered an adverse employment action, that Coldwater had not failed to
accommodate her, and that Coldwater did not retaliate against her. The Court of
Appeals for the Sixth Circuit disagreed on every point.
The
Sixth Circuit began their analysis by establishing that Morrissey was, in fact,
disabled. In doing so, the Sixth Circuit made clear that case law, before 2008,
analyzing if an employee was disabled within the meaning of the ADA was no
longer valid law. This is because, in 2008, Congress amended the ADA, changing
the criteria for what constitutes a disability. The Sixth Circuit Court of
Appeals held:
The ADA defines a disability as: “a physical or mental
impairment that substantially limits one or more major life activities . . . a
record of such an impairment . . . or being regarded as having such an
impairment.” 42 U.S.C. § 12102(1)(A)-(C). Major life activities “include, but
are not limited to, caring for oneself, performing manual tasks, seeing,
hearing, eating, sleeping, walking, standing, lifting, bending . . . , and
working.” § 12102(2)(A). Under the 2008 amendments to the ADA, Congress made
clear that the definitions of both a “disabled person” and “substantially
limits” are to “be construed broadly in favor of expansive coverage.” §
12102(4)(A), (B); see also 29 CFR § 1630.2(j)(1)(i).
* * *
Morrissey told Coldwater that she could not work more than
twelve hours per shift because she suffered from a disability as defined by the
ADA. That was enough. See Hammon v. DHL Airways, Inc., 165 F.3d 441, 450
(6th Cir. 1999) (“An employer has notice of the employee’s disability when the
employee tells the employer that he is disabled.”) (citation omitted)); see
also Cady v. Remington Arms Co., 665 F. App’x 413, 418 (6th Cir. 2016) (“[T]he
employee need not use the word ‘disabled,’ but the employer must know enough
information about the employee’s condition to conclude that he is disabled.
Relevant information could include, among other things, a diagnosis, a
treatment plan, apparent severe symptoms, and physician imposed work
restrictions.” (internal citation omitted)). Finally, as Coldwater tacitly
concedes, Morrissey’s medical records establish that she suffered from disc
disease. Thus, the district court erred on the grounds it used to support its
holding.
After establishing that Morrissey was, in fact, disabled as defined by the ADA, the Sixth Circuit turned its eye to whether or not Coldwater accommodated Morrissey. The Sixth Circuit found that Morrissey had requested numerous accommodations, and Coldwater’s failure to grant them constituted a violation of the ADA: including enforcing a 100% Healed Policy:
Under the ADA, discrimination includes “not making reasonable
accommodations to the known physical or mental limitations of an otherwise
qualified individual with a disability unless such [employer] can demonstrate
that the accommodation would impose an undue hardship.” 42 U.S.C. §
12112(b)(5)(A). A reasonable accommodation includes “job restructuring,
part-time or modified work schedules, reassignment to a vacant position . . .,
and other similar accommodations for individuals with disabilities.” 42 U.S.C.
§ 12111(9)(B).
* * *
Viewing the evidence in the light most favorable to
Morrissey, it shows that: (1) Coldwater had a blanket policy of denying
accommodations for all non-work related disabilities, (2) Coldwater knew that
Morrissey was under a twelve-hour work restriction, (3) Morrissey requested an
accommodation, (4) Coldwater forced her to work beyond that restriction on
January 31, 2016, and (5) Coldwater attempted to do so again five days later.
On these facts, Morrissey’s overages from 2012-2015 are inconsequential. But,
Coldwater’s argument improperly ignores the fact that it forced Morrissey, a
disabled employee, to stay and work in excess of her physician instituted
medical restriction—and attempted to do so again five days later. The record
shows that Morrissey asked Coldwater for an accommodation due to her
disability, and Coldwater did not accommodate her. She was not required to
establish anything more for her claim to ripen.8 See Talley, 542 F.3d at
1103-04, 1109 (holding that the defendant failed to accommodate an employee
based on the employer’s refusal to allow her to use a stool on the same day she
requested to use the stool, and the employee left during the shift). This
satisfies Morrisey’s burden under the direct evidence test applicable to a
claim of failure to accommodate. Kleiber, 485 F.3d at 868-69. Coldwater
thereafter makes no argument that summary judgment was warranted because the “proposed
accommodation [would] impose an undue hardship upon the employer.” Monette,
90 F.3d at 1186. We, therefore, do not address this issue, and Morrisey’s
failure to accommodate claim may proceed to trial.
Finally, the Sixth Circuit addressed Coldwater’s ludicrous blanket accommodation policy. The Sixth Circuit held that having a blanket policy of denying accommodations unless if the disability was the result of a work injury, would not allow Coldwater to escape liability, and related to a 100% Healed Policy that other courts rued against in the past:
We also note that Coldwater cannot escape liability by
arguing that its blanket policy of denying accommodations for all
non-work-related disabilities is ostensibly neutral. If a school “lacked an
elevator to accommodate a teacher with mobility problems[,]” it “could not
refuse to assign him to classrooms on the first floor, then turn around and
fire him for” the so-called neutral policy of “being late to class after he
took too long to climb the stairs between periods.” Dolgencorp, 899 F.3d
at 435. Put another way, even though a requirement that a teacher be in the
classroom when the bell rings is a neutral attendance requirement, a tardy
teacher is not unqualified if his tardiness results from his employer’s
unwillingness to provide a reasonable accommodation. So too here. Coldwater
cannot refuse to provide Morrisey with a reasonable accommodation and then
conclude that she is not qualified for her position because she cannot meet her
job’s requirements without an accommodation.
Having to live with a disability is stressful enough without worrying about the effect it may have on your job. If you are disabled or your employer perceives you as being disabled; and you have been fired, wrongfully terminated, discriminated against, demoted, wrongfully disciplined, denied wages, or even think that you might need a disability discrimination lawyer, then call the right attorney to schedule a free and confidential consultation. The best option is not to wait. Call our office at 866-797-6040.
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