January 8, 2014

What if Employees Won’t Follow Your Policies? Employers vs. an ADA Lawsuit

treat disabilities with care to avoid an ADA lawsuit

It’s your employees’ fault if they fail to comply with handbook policies, right? In an ADA lawsuit, not always. Turns out placing the blame and making it stick are two different things…and you can’t un-hear what you’ve already heard.

Let’s look at a recent example in Virginia, in which an employee allegedly flouted company policies but won an ADA lawsuit: Martin v. Yokohama Tire Corp. In this instance, the employee requested accommodation from his employer – short-term medical leave to manage and attend doctor appointments for his diabetes – but later claimed that these accommodations were refused.

Yokohama, on the other hand, alleged that the request was not properly submitted to Human Resources per their employee handbook policies. The correct forms were not turned in and the correct procedures were not followed, Yokohama claimed, so no (valid) accommodation request was made. The company claimed that the employee’s failure to properly request accommodations effectively negated their obligation to provide them. After all, that’s what rules are for, right?

Say you have a complete, up-to-date medical employee handbook that’s expert-reviewed and fully compliant with all federal and state employment laws. (Congratulations! We must have just made it for you.) And then one of your employees – we’ll call him BO – starts to have problems at work, including frequent instances of being absent and late. In this particular case, Bo has an illness, for which he has previously requested accommodation, but he isn’t following your policy as to how he requests and records his medical leave…

All his fault, right? After all, Bo always was a bit of a troublemaker. And surely you’re protected by your policy on requesting an accommodation…right? You’ve spoken to the employee about his schedule problems, and he’s offered up an excuse that includes the fact that it’s a health issue. You respond by telling him that if he needs some kind of accommodation he needs to follow the employee handbook and tell you what accommodation he proposes. You’re covered here, right

Sure, sort of – after all, at the very least, your policy will help make it clear that you do make attempts at accommodations when requested, and that may very well help you should this issue develop into some kind of case.

But what Yokohama found out is that your handbook policy is not a magic umbrella – because your legal obligations do not depend on your internal company policies. Basically, you must not only follow the letter of the law by making reasonable accommodation when requested, but also make a reasonable attempt to follow through, in cases where accommodations have been partially or improperly requested and you already know they are needed.

So when Yokohama pleaded for the case to be dismissed because the employee did not make his request in the proper way, as outlined by company policy, the court’s response was, “Nice try.” Turns out that because the employee HAD previously communicated his disability and/or need for accommodation, whether or not he had done so correctly, the company should not have used compliance with their policies as the deciding factor in whether accommodations were made.

According to the court, the employer was aware, so they had a responsibility to act. According to the court, this employee should not have been denied leave nor asked to report to work when he was ill – and they added that the accommodation the company did make, a schedule change, may have done more harm than good.

So what’s our takeaway as employers – that a great employee handbook can set out policies and support your actions but can’t work magic or absolve all your responsibilities? Sure…that and the fact that your interactions with an employee requesting accommodations are essential.

Document all reasonable attempts you make to accommodate Bo and his disability. If Bo isn’t proactive, you can be, because as I stated in the title, you can’t un-hear what you’ve already heard. Be careful with employees and situations you know are more likely to invite ADA lawsuits – the courts are likely to back them up if there’s any case at all. Seek expert advice when you need to (members can always call our Solution Center). And don’t rely solely on fine print and lack of properly-submitted forms as a “gotcha” when it comes to terminating an employee.

Friendly Disclaimer: This information is general in nature, and is not intended to replace good counsel about a specific issue with either your attorney or your favorite HR expert.

Friendly Disclaimer: This information is general in nature and is not intended to provide legal advice or replace individual guidance about a specific issue with an attorney or HR expert. The information on this page is general human resources guidance that is believed to be current as of the date of publication. Note that CEDR is not a law firm, and as the law is always changing, you should consult with a qualified attorney or HR expert who is familiar with all of the facts of your situation before making a decision about any human resources or employment law matter.

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