Employees with disabilities have the right to request reasonable ADA accommodations. Punishing them for making such a request can be grounds for a retaliation lawsuit—even if no accommodations were possible or due.
Recent case: Earnest was an operator in an oil refinery. He worked on what’s called a high-speed line, a job that required climbing, balancing, stooping, kneeling, pushing, lifting and grasping, as well as using a variety of tools.
In the year before he was terminated, Earnest experienced several medical problems, including carpal tunnel syndrome, neck pain, back pain and weakness in his legs. He took an extended sick leave to deal with those problems and then wanted to return to work. His doctors, however, wouldn’t provide a full release.
Earnest explained he wanted a light-duty assignment, but a company representative told him none was available. Earnest was eager to discuss whether any accommodations were possible, so he went to the plant.
Once there, he discovered that his security badge, which allowed him access to the facility, had been deactivated. Rather than call security and get an escort, he asked another employee to swipe him in. That was a violation of security rules.
Earnest never got to discuss accommodations; instead he was escorted off the premises for an alleged security breach. Then he was fired.
Earnest sued, alleging failure to accommodate his disability, as well as retaliation for requesting reasonable accommodations.
The refinery argued that it didn’t have to make accommodations because doing so would have required it to redesign Earnest’s job. It also argued that it had fired Earnest for legitimate reasons—namely entering the facility without authority and using another employee’s access badge.
The court agreed that Earnest wasn’t entitled to an accommodation because he clearly couldn’t do his old job and because employers aren’t required to create new positions as an accommodation.
However, it ordered a trial on the retaliation claim. The court reasoned that Earnest engaged in protected activity when he tried to enter the facility to discuss possible accommodations. It also reasoned that termination under the circumstances could be retaliation, noting that the rule against swiping in on a co-worker’s badge had rarely been enforced.
A jury will decide if the purported reason (unauthorized access) was merely an excuse to punish Earnest for requesting accommodation. (Hammond v. Jacobs Field Services, No. 12-30222, 5th Cir., 2012)
Final note: A better approach to the situation would have been to escort Earnest off the premises, but set up a time to discuss possible accommodations later. By treating him with dignity, such a move would have defused a tense situation and shown the employer’s good-faith efforts to help a disabled worker return to work.
The end result on accommodations might have been the same—determining that no accommodation was feasible. Earnest could then have been terminated for a clearly legitimate reason, since no work was available that he could perform.
Remember, the accommodation process is supposed to be an interactive one.
Escorting the employee off the premises because he didn’t have an appointment and essentially slipped in isn’t what Congress had in mind when it enacted the ADA.
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