Penny Payup, an accounts receivable assistant in Acme’s finance department, went out on 12 weeks of FMLA leave after suffering an acute panic attack at the office one day. Her manager, Sal Snappish, had flown off the handle again, accusing her of falsifying a monthly report, to hear Penny tell it.
No doubt about it: Sal was an abrasive guy, and Penny was not the first employee to complain. But he ran a tight, efficient ship, and if he saw problems with his employee’s work, he was not the type to keep silent. By Sal’s account, he got steamed after correcting the same computational errors she’d made several times before, and while he loudly voiced his displeasure, he had never used the word “falsify.” At any rate, the emotional breakdown that ensued put Penny out of commission for several months, and today was her scheduled return to work. She wasn’t thrilled about it, but she had used up all of her leave time.
Penny started her first day back with a visit to Human Resources. She intercepted Wyle Yerout, Acme’s disability and leave administrator, just as he was walking in the door with his morning coffee. “My doctor diagnosed me with acute anxiety disorder,” Penny told him, following Wyle to his cube. “He said I can’t work under Sal. So I would like to report to Paula instead, please. I can still do accounts receivable work, though. I have no problem at all with that.”
Wyle let out an audible sigh. Paula Pleasant, the manager of accounts payable, was far more popular with her subordinates in the finance department, but she knew nothing about the accounts receivable function. Plus, Wyle hadn’t even had so much as a sip of his coffee. “The cubicles over in AP are a lot less noisy since they’re farther away from manufacturing. So it will be much calmer for me there too,” Penny added.
Gathering his composure, Wyle responded carefully. “First of all, welcome back. We’re glad you’re feeling better. As for your request, reporting to Paula isn’t workable, Penny. Sal is the manager of accounts receivable. It’s not feasible for Paula to oversee your accounts receivable duties. But tell me about the problem with the noise in accounts receivable. We should talk about this. And I need to know more about your diagnosis from your physician so that we can see what accommodations are needed to help you succeed.”
But Penny had stopped listening at “wouldn’t be feasible.” She was clearly agitated. “My doctor said I can’t work for Sal! Are you saying you’re not going to accommodate my disability?!!” Wyle calmly handed Penny a “Request for ADA Accommodation” form to complete, asked her to provide documentation from her physician about her condition, and gently encouraged her to take a few days longer to think about what she wanted to do. A distraught Penny shook her head and started to leave. “I already know what I want to do. I want to call my lawyer.”
Will Penny’s lawyer be eager to take her call?
An employment attorney's response:
Penny should save her proverbial dime, as she won’t likely have a case. The Americans with Disabilities Act (ADA) requires employers to provide reasonable accommodations for employees with disabilities that will enable them to perform their jobs. But the employer has to know that the employee has a “disability” within the meaning of the ADA.
Having taken FMLA leave doesn’t automatically mean one has an ADA-qualifying disability. Announcing your condition to HR certainly puts the employer on notice to inquire further, though, and that’s precisely what Wyle did here. However, Penny didn’t hold up her end of the bargain: she failed to provide more detailed information about her disability when Wyle requested it, so it wasn’t clear that Acme was obligated to do more.
Once an employer knows that an employee has a disability, it is expected to engage in the “interactive process” with the employee to explore possible reasonable accommodations that will enable her to perform her job. But “reasonable” is the operative term, and Penny’s desired accommodation—reporting to a different supervisor—is not reasonable under the circumstances.
In fact, it seldom is, in the eyes of the law. Courts have repeatedly ruled that a request to work under a new supervisor is not reasonable, and there was nothing here to indicate that the situation at hand was an exception to this general rule. Sal, the disfavored manager, was the only person who supervised the specific job functions that Penny performed.
Had there been three accounts receivable supervisors at Acme, overseeing several employee teams, Wyle would probably have erred in abruptly dismissing her request without further consideration. However, while employees can bring “failure to accommodate” suits against employers that refuse to engage in the interactive process, Penny wouldn’t have a viable claim: she stormed off when her desired accommodation was foreclosed, so she was responsible for the “breakdown” of the interactive process.
No doubt Penny would argue that Wyle, in dismissing her chosen accommodation out-of-hand, was at fault. However, Wyle’s cursory rejection of the request was appropriate because it was clear that reporting to another supervisor simply wasn’t a possibility. Wyle also made it clear that he wanted to talk about the noise problem that concerned Penny, and wanted more information about the nature of her disability in order to explore alternative means of accommodating her. As such, he showed he was willing to continue the interactive process.
On the other hand, Penny apparently would accept only one accommodation—to work under a new supervisor—which was unreasonable. And an employer does not have to provide an employee with her accommodation of choice; it need only provide an accommodation that will allow her to perform the job while simultaneously meeting the employer’s operational needs.
Would an extended leave of absence or a temporary part-time schedule have helped Penny transition back to her job under a stressful manager? Was there a quieter cubicle in accounts receivable that would be more conducive? Were there other openings she might pursue at Acme? (Note that Acme would not have to employ Penny in another position, but it was certainly an option to consider—job transfer can be a reasonable accommodation in certain situations.) Had Penny cooperated, these and other potential accommodations could have been explored further.
Wyle seems like a talented and conscientious leave administrator. No doubt he’ll forward the rejected paperwork to Penny’s home, giving her ample opportunity to engage in the interactive process despite her initial belligerence. Such due diligence would also help Acme fend off a potential lawsuit. Also to that end, to avoid the prospect of litigation in the future, it’s about time for one of Wyle’s HR colleagues to schedule a long-overdue sit-down with Sal.
Lisa Milam-Perez, J.D., labor and employment analyst
Wolters Kluwer Law and Business, (773) 866-3908