Part of Rose Selenke's job as a radiology technician involved developing mammography films. She suffered from sinus problems and frequently complained about fumes in the darkroom.
The first time her employer investigated her complaints, it didn't make any changes. Her supervisor relied on a contractor's word that the air vent was functioning, which it wasn't. After Selenke complained further, the company brought in an industrial hygienist, and it followed his recommendation to install a new air vent within a week.
A later air quality study led to further recommendations, but the employer was already planning to move. Instead, it asked Selenke for design recommendations for the new facility, hired a consulting firm and made improvements to the ventilation system within two months after relocating.
Selenke then requested a test for molds and spores, and the employer agreed. But within a month, she was terminated for disciplinary reasons. She sued, claiming the employer failed to reasonably accommodate her.
In the past, courts have ruled that unreasonable delay in implementing a reasonable accommodation can be a discriminatory act.
But that didn't happen here. The employer acted quickly and responsibly enough to get Selenke's case tossed out. While the employer was investigating Selenke's complaints, it paid for a respirator mask, offered her an alternative job site and granted her leave requests. (Selenke v. Medical Imaging of Colorado, No. 99-1141, 10th Cir., 2001)
Advice: Don't take the slow route when developing accommodations to employees' disabilities, a court may punish you for your slowpoke ways. If you can't quickly resolve an accommodation problem, consider interim measures. Courts will look at these factors to determine whether you're dragging your feet:
- The length of any delay.
- The reasons for the delay.
- Whether you offered any alternative accommodations while evaluating a request.
- Whether you acted in good faith.
- Feel free to impose legitimate discipline on employee, even if she's on FMLA leave
- Independent investigation doesn't have to be perfect
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- Must we turn over personnel records that might compromise an investigation?