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Don't HR Alone #51-Juggling Return to Work Requirements, and Stinky Offices

That Stinks! EEOC Sues on Behalf of Employee Denied Relief from Workplace Smells

By Ellison F. McCoy on July 13, 2017

On July 12, 2017, the EEOC filed suit in the Middle District of North Carolina alleging that an employer violated the Americans with Disabilities Act (ADA) by refusing a request to telecommute from an employee with a sensitivity to workplace smells.

In the lawsuit filed against Advanced Home Care, Inc., the EEOC claims that the employee asked her supervisor on three separate occasions if she could work from home to avoid exposure to the fragrances and odors she encountered in the workplace, since those scents aggravated her asthma and COPD. However, the employee’s supervisor allegedly ignored the requests to telecommute, even though the employee worked as a case manager for patients requiring home services and could have performed her essential duties from home. The EEOC asserts that the employer’s rejection of the request to telecommute, without first conducting an individualized assessment of the requested accommodation, was a violation of the ADA.

The filing of this lawsuit should serve as a reminder on two fronts for employers. First, an employee’s claim that he or she is allergic to certain scents or substances in the workplace should not be dismissed offhand. Frequently, the employee’s sensitivity to such scents or substances is related to an underlying respiratory condition such as asthma, COPD, or allergic rhinitis. Such conditions often constitute a disability under the ADA since they typically impact the major life activity of breathing. Second, once an employee requests to telecommute as an accommodation for a disability, that request should never be ignored. In EEOC v. Ford Motor Company, the seminal decision regarding telecommuting as an accommodation, the Sixth Circuit Court of Appeals recognized that both employers and employees must engage in a good faith “interactive process” to determine if the requested accommodation is reasonable or if it creates an undue hardship on the employer. If the employer ignores the request to telecommute and thus fails to engage in the required “interactive process” it runs a significant risk of liability for failure to accommodate. On the other hand, the employer who rejects the request to telecommute after engaging in a good faith interactive process with the employee will be in a much more defensible position should litigation result.

Juggling Return to Work Requirements

Employers are challenged to comply with complex and varied laws and regulations related to employees who have been on leave due to their own illness or injury and then return to work. The extent of an employer’s compliance requirements varies based on several factors, including whether the employee’s injury or illness occurred on or off the job, whether the employee has or is regarded as having a disability, and whether the employee can perform the essential functions of the job upon return. To complicate matters, more than one law may apply in any given situation. Three commonly implicated laws are the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), and state workers’ compensation laws. Family and Medical Leave Act Under the FMLA, an employer may have a uniformly-applied policy or practice that requires similarly situated employees to obtain certification from a health care provider that they can return to work from FMLA leave (fitness-for-duty certification). If an employer chooses to obtain a fitness-for-duty certification, the certification must be limited to the serious health condition for which the employee was on leave. Employers may use the fitness-for-duty certification to determine whether the employee can meet the essential functions of the job; however, to do this the employer must preserve its right to request certification that the employee can meet these job requirements in either the FMLA designation notice or another document detailing the job functions provided prior to the FMLA designation notice. Most employers choose to include certification that the employee can meet the essential functions of the job in the FMLA designation notice. Additionally, if the employer wants the certification to address the employee’s ability to meet these job functions upon return, the FMLA designation notice (or other document provided prior to the designation notice) must also state that the employee will be required to provide a fitness-for-duty certification that confirms the employee’s ability to perform the essential functions before returning to work. The employee’s health care provider would assess the employee’s ability to perform those job functions and make the fitness-for-duty recommendation.

The employer is bound by the health care provider’s certification and cannot ask the employee to obtain a second or third opinion. The employer can contact the employee’s health care provider only to clarify or authenticate the fitness-for-duty certification, but cannot delay the employee’s return to work while waiting for the clarification. If the employer meets the notification requirements for a fitness-for-duty certification and the employee does not obtain or provide the certification to the employer, the employer can deny the employee’s return to work until it is obtained or provided. If the employee refuses to provide the certification and does not request additional FMLA leave, the employee is no longer entitled to reinstatement under the FMLA. Different requirements apply for intermittent or reduced schedule FMLA leave. Employers should also familiarize themselves with those requirements. Americans with Disabilities Act Under the ADA, employers may request medical examinations and information for existing employees in very limited circumstances related to the employee’s job and consistent with business needs. This stipulation applies for employees currently working and for those returning to work after an illness or injury. If an employer believes (based on objective evidence and observation) that a current employee’s essential job function is impaired by a medical condition or that the employee poses a direct threat to self or others due to a medical condition, the employer can make disability-related inquiries or require a medical examination. This situation would typically occur when an employer has observed performance or safety issues. If an employee is injured and returning to work and the employer believes that the employee’s present ability to perform essential job functions could be impaired by a medical condition or that the employee poses a direct threat to self or others due to a medical condition, the employer may make disability-related inquiries or require the employee to complete a medical examination. The examination or inquiry must be limited to an assessment of the employee’s ability to work and related to the specific medical condition for which the employee took leave. The employer cannot require unrelated medical examinations or inquiries. State Workers’ Compensation Laws Although workers’ compensation laws and regulations vary from state to state, many employers create return-to-work programs for workers’ compensation illnesses and injuries. A return-to-work program benefits both employers and employees as it provides options that allow employees to get back to work. Generally, if a treating physician releases an employee on workers’ compensation to work temporarily in a modified or light duty assignment (until they are fully recovered), the employer may assign the employee lighter work or different work hours. The position must fit the physical limitations imposed by the doctor and be within the worker’s abilities. Employees concurrently on FMLA leave are not obligated to accept the light duty assignments and may remain on FMLA leave. Employees may still be able to decline light duty assignments even if they are not on FMLA leave; however, continuous refusal may eventually preclude the employee from collecting workers’ compensation benefits unless a judge rules that the employee’s refusal is justified. An employer should continue to re-offer the light duty assignment in such cases. Creating a return-to-work program may also obligate an employer to reassign employees without compensable injuries to light duty assignments under the ADA or applicable state laws. Accordingly, it is important for an employer to know which state and local leave laws apply to their locations. Wrapping it up Understanding the various applicable state and federal laws for obtaining medical certification for an employee to return to work can be complex. Employers should consult with counsel to ensure they have uniform policies and adequate notices in place, are properly documenting their practices, and are consistently applying their return-to-work rules fairly for returning employees.

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