One of the hallmarks of the Americans with Disabilities Act is that employers are required to have a dialogue—known as the "interactive process"—with an employee who requests or appears to be in need of an accommodation. A recent case, Massachusetts Commission Against Discrimination v. Tufts Medical Center, Docket No. 10-BEM-01133 (Dec. 18, 2019), provides some guidance for how an employer can fulfill its obligation to determine whether an employee's disability can be accommodated.
In 2006, after about four years of working as an inpatient nurse at Tufts Medical Center in Boston, the Complainant was diagnosed with rheumatoid arthritis and lung disease. The following year, she was excused from overtime responsibilities as an accommodation, but still worked without other restrictions. In the spring of 2009, Complainant took medical leaves and by the summer, had exhausted her job protection; in order to return to the nursing pool at Tufts Medical Center, Complainant was required to apply for vacant jobs. By October of 2009, she was cleared to return to work with no restrictions.
It was during this period that the Commission determined that Tufts should have done more to explore the nurse's ability to return to work. First, there were available day-shift jobs for which Complainant was qualified, but the only position that Tufts Medical Center offered Complainant was for a night-shift only position. At that point, Complainant indicated that she would prefer a day-shift, as working nights would exacerbate her symptoms, prompting Tufts Medical Center to consider terminating her for refusing a job offer. The Commission thus concluded that Tufts Medical Center attempted to forestall engaging in a dialogue with the Complainant at all by not being more proactive in alerting her to open positions for which she was qualified and would have been a better match given her health condition.
Second, Tufts Medical Center declined to follow up with the Complainant to extend the dialogue with her after consulting with her physician about her ability to continue working. Upon turning down the night-shift only position, the Complainant provided a note from her doctor indicating that she was cleared to work during the day. Tufts Medical Center reached out to the doctor to clarify Complainant's restrictions. When the doctor informed Tufts Medical Center that Complainant could not work double shifts or night hours, the Employee Relations Specialist noted that the doctor said, "no doubles—no nights—no doubles, even occasional not recommended. Up to her if she wants to try" (emphasis added). Id. at 16. The crucial point here is that rather than consulting with the Complainant, Tufts Medical Center "unilaterally determined that Complainant could not perform the essential functions of an inpatient nurse and would be better served seeking employment elsewhere." Id. at 17.
While the opinion describes that Tufts Medical Center engaged in some degree of interactive process with the Complainant, the Commission casts doubt on how adequate and arguably sincere its efforts were. Indeed, the Commission also upheld the constructive discharge allegation against Tufts Medical Center, specifically citing its failure to engage in the interactive process with the Complainant in support of that finding, awarding her approximately $85,000 in back pay damages, $45,000 in emotional distress damages, and $290,000 in attorneys' fees. See id. at 18, 23-24 (Complainant died on August 21, 2016).
What are the key takeaways from this case? Employers should remember that the interactive process may be a brief one if a requested accommodation is straightforward to implement and resolves a workplace challenge; however, as was the case here, an employee's need for accommodation may change over time, and the interactive process must keep pace with the evolving situation. The Job Accommodation Network (JAN) has a comprehensive matrix of suggestions for accommodations that may be considered reasonable, based on an individual's disability, limitations, and work-related functions, a helpful resource for any employer engaging in the interactive process.
More communication may also be helpful if an employer ultimately determines that a requested accommodation cannot be provided and it would be best for the employee to seek work elsewhere. If an employee has a greater understanding of why an accommodation cannot be provided, and believes that the employer has, in good faith, tried to retain the employee, while disappointed, it is more likely that the employee may buy into the result, or at least not seek to litigate it.
Tufts Medical Center has appealed this decision to the Massachusetts Superior Court, and we will be watching the developments in this case.
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