What is an employer’s responsibility to provide an accommodation for driving, and what are some accommodations available for driving? These are common questions that we receive at the Job Accommodation Network. To answer these questions, we need to consider that there are many different reasons that an individual may need an accommodation for driving. Some people may need accommodations related to their commute to work, others might need accommodation for on-the-job travel such as site visits in the field, and still others may be professional drivers who are responsible for transporting persons or material as an essential function of their jobs.
In addition, there are many different impairments that may interfere with a person’s ability to drive. For example, an office worker with a back condition who has difficulty sitting for long periods may be unable to handle a long commute. Or, a social worker who does home visits may experience a sudden spinal injury with paralysis and may need to have modifications to a work vehicle or find an alternative means of transportation. Or, a professional driver may have a seizure disorder and be temporarily disqualified from driving. As you can see each case is individual and may require different accommodation solutions.
Let us start with accommodation for driving to and from work. Many employees drive as a part of their commute to work and some may need to drive for a long time during their commute. Commuting to work can be a problem for many reasons, for example employees who have sitting restrictions due to a disability, employees with bowel and/or bladder issues that require frequent use of a restroom, employees who cannot operate a foot pedal due to limitations in the use of their lower extremities, employees who have difficulty operating a steering wheel due to limitations in the use of the upper extremities, and employees with medical conditions such as severe epilepsy that may limit their ability to operate a vehicle safely.
Employers, when faced with a request for accommodations related to an employee’s commute, might think that they are not responsible for the employees commute because it is outside of the work environment. To a certain extent that is true; employers do not have to provide transportation to and from work and/or pay for modifications for an employee’s personal vehicle as an accommodation under the ADA, unless they provide transportation or vehicle modification for all employees in general.
However, even though employers do not have to provide transportation to and from work, there are accommodations that employers must consider such as modifying an employee’s schedule so she can use public transportation or allowing an employee to work at home to avoid commuting all together. The reason employers must consider these types of accommodations is because employers control the time and location of an employee’s work as part of the work environment.
For more information, see:
- Accommodations Related to Commuting To and From Work
- Work At Home/Telework as a Reasonable Accommodation-Fact Sheet
Finally, another possible accommodation issue that may come up related to an employee’s commute to work is allowing the employee to park in an accessible parking space at work if the employer provides parking for employees. This might mean reserving the closest spot available to entrance. For individuals who use mobility devices, accommodations could include room to transfer in and out of the mobility device and access to a ramp and an accessible entrance. For more information about parking as an accommodation, see: Parking and the ADA, Act 1.
Driving Related to Job Performance
Employees with disabilities sometimes need accommodations for driving on the job. An employer’s responsibilities to provide an accommodation for on-the-job driving are greater than for commuting to work because clearly the driving is a part of the work environment. The first thing employers need to do is determine whether driving is an essential function of an employee’s job. For more information about how to determine when driving is an essential function, see: EEOC Informal Guidance Letter: ADA/Drivers License/Essential Functions/Reasonable Accommodation.
If driving is not an essential function, then the employer needs to consider accommodations such as providing alternative transportation or performing the job in another way that does not require travel. If driving is an essential function, then the employer needs to try to provide accommodations that would enable the employee to drive. For example, in the case of a professional driver where driving is clearly an essential function of the job, the employer may need to consider accommodations such as limiting hours or driving distance (if such accommodations would help) or allowing leave time until the employee can drive again. Or, depending on the employee’s limitations, it might be possible to modify the vehicle to enable the employee to overcome his limitations related to driving. For a list of products that may be useful for modifying a vehicle, see JAN’s SOAR.
When considering modifying an employee’s work vehicle, an employee and employer may benefit from a referral to a certified driver rehabilitation specialist. Here is link to the Association for Driver Rehabilitation Specialists.
With professional drivers who are responsible for transporting people or materials, there are often federal requirements related to a driver receiving a Commercial Driver’s License (CDL). Under the ADA, employers do not have to disregard such federal standards. However there may be waivers, exemptions, and/or pilot programs through which employees with disabilities who do not meet these qualifications could still get their CDL. You can find out information regarding these waivers at: U.S. Department of Transportation’s Waivers, Exceptions, and Pilot Programs.
Finally, there may be some situations where the employer may need to consider reassignment as an accommodation. This may be the case where, for example, driving is an essential function of the job, the employee is unable to drive due to a disability, and there is no accommodation that the employer can provide to enable the employee to drive. For information about reassignment, see: EEOC’s Enforcement Guidance on Reasonable Accommodation and Undue Hardship.
As always, the best accommodation will depend upon the employee’s abilities, the essential functions of the employee’s job, and the employer’s capacity to provide the accommodation without incurring an undue hardship. If you have any questions, please contact JAN. You can contact us through phone, chat, or email.
- Burr Corley, MSW, Consultant, Motor Team, JAN
Conduct problems may be some of the most difficult issues to address in the workplace and oftentimes have little to do with a disability. Employers are often mystified by the nature and range of conduct issues that crop up. For more information on conduct issues, how they can be handled under the ADA, and real life situations and solutions, please read on.
According to the EEOC’s guidance on The Americans with Disabilities Act: Applying Performance and Conduct Standards to Employees with Disabilities, employers need not lower a conduct standard for an employee with a disability and can hold that employee to the same standard they hold other employees to. However, if a disability is causing the misconduct, the employer will need to consider providing accommodations to help the employee meet the standard. There is no specific timeframe in which an employee is required to ask for an accommodation under the ADA, but it would be advantageous for employees to disclose a disability and request reasonable accommodation before conduct problems arise, or at least before they become too serious. The timing of a request for reasonable accommodation is important, because an employer does not have to revoke discipline (including a termination) or an evaluation warranted by misconduct that occurs prior to an accommodation request.
Employees should not assume their employers know that an accommodation is needed just because the employer knows about the disability, nor does the employer’s awareness of the disability require the employer to ask the employee if the misbehavior is caused by the disability.
It is a good practice for employers to initiate a discussion about conduct problems before they become too serious in an effort to give employees the opportunity to address the concerns. An important point to make here is that an accurate assessment of an employee’s conduct may alert the employee that the disability is contributing to the problem. This may lead the employee to request reasonable accommodation to address the problem and improve behavior, which can be beneficial to both the employee and the employer.
See the following situations and solutions that involve conduct issues and standards:
Situation: A sales associate in a retail location strikes another employee while on a break. When the store manager intervenes, he terminates the employee who hit her co-worker. The employee discloses that she has bipolar disorder and is under a lot of stress and anxiety right now due to a spouse’s job loss.
Solution: The employer does not ask anything about the disability, nor does he rescind the termination. The company policy states a zero tolerance for fighting.
Situation: An employee with a known panic disorder is confronted in a small enclosed office space by her supervisor. Even though the employee knows that leaving the discussion without permission will not be viewed favorably, she tells her supervisor that she cannot be confronted and stay in this small space. After the supervisor warns her that stepping away from the conversation will result in a termination, the employee chooses to walk away.
Solution: The employer terminates the employee, the same punishment given to any employee who is insubordinate. The employee protests her termination, telling the supervisor that her panic and need to leave were results of her anxiety disorder. She says she was trying to get away from her supervisor when she felt the panic rising, but he ordered her not to leave the room. The employee apologized to her supervisor and asked to be reinstated. She also asked that in the future she be allowed to walk away from threatening situations because her stress and panic may cause her to act inappropriately. The employer leaves the termination in place because the employee’s request for reasonable accommodation came after her defiant behavior.
This example may not be as clear-cut as the supervisor thought. Since the disability was known, there might be an argument in the employee’s favor that she was asking for an accommodation when she told her supervisor that she could not be confronted and stay in that small space. It might also be said that she was not able at that time to think clearly and ask specifically for an accommodation to help, she just knew she had to get out of the situation before something more severe happened. If her supervisor did know she had an anxiety disorder, he may have been able to recognize what was happening and defuse it. The supervisor might have taken disciplinary action that was not as severe as termination, and allowed the employee the benefit of the doubt. This approach would certainly show a good faith effort to accommodate under the ADA.
Situation: A nurse with severe depression was written up after several verbal warnings for inappropriate conduct. She was placed on a thirty day plan of improvement (PIP) and warned that if the behavior did not stop within the stated time period, she would be let go. The employee decided to disclose her disability and ask for accommodations that would assist her in responding more appropriately to co-workers.
Solution: Because the employee disclosed and asked for accommodations, the employer put the PIP on hold until the employee provided medical documentation and accommodations could be made. The hospital did not have to rescind the discipline that occurred before the disability was known, but while employers can hold employees to the same conduct standards they hold others to, they are obligated to provide accommodations to help employees meet those standards. In this situation, once accommodations were put into place, the employer started the PIP.
Situation: An employee has recently begun to have workplace issues with refusing to do any work from her computer. She has suspicions that the employer has been monitoring her by placing devices in her computer. The employer assured her that is not the case, and had the IT department check out her computer as well, but the employee still refused to do any work that involved her computer. Because of the nature of these issues, the employer assumed that the employee was having psychological issues. He then required the employee to go home and prohibited her return to work until she had been cleared for duty by a psychiatrist.
Solution: By demanding a fitness-for-duty exam to be completed by a psychiatrist, the employer was assuming that the employee had a mental health impairment. A more effective alternative would have been to hold the employee to the performance and conduct standards of working from her computer and treating her refusal as a disciplinary infraction. This may have given the employee the opportunity to disclose that she was having issues, or may have given the employer the opportunity to ask this employee if there was something the employer could do to assist her in getting her work done. If the employee refused to cooperate with the employer at that point, she could be progressively disciplined according to company policy.
Situation: A 911 dispatcher began to have panic attacks on the job that caused him to leave his workstation and the phone lines to take a walk outside the building to try to calm himself down. The episodes lasted anywhere from 20-45 minutes and were increasing in frequency. What started out as a couple of episodes a month had progressed to several episodes daily.
Solution: The supervisor viewed this situation as a direct threat, and requested medical information from the employee to show that he was able to safely do his job. He included a job description for the physician to review. The supervisor also asked for strategies to keep this from happening on the job.
A direct threat means that an individual will be dangerous to himself or others. A health or safety risk can only be considered if it is “a significant risk of substantial harm.” Direct threat can be a pretty high standard to meet. The employer could have handled the situation as a performance issue – the employee was not doing his job if he was away from his workstation and not taking phone calls while having the panic attacks. If the employee disclosed at that time, then the employer could still have requested the medical information as a way to help understand how the impairment affects the employee. Accommodations that could reduce the anxiety at work that caused the panic attacks would then be considered.
- For more information, please see JAN’s “Dealing with Conduct Problems in the Workplace.”
- Melanie Whetzel, M.A., Senior Consultant, Cognitive / Neurological Team, JAN
The Court of Appeals for the Fourth Circuit recently upheld an employee’s termination because the requested religious accommodation would result in an undue hardship on the company. In EEOC v. Thompson Contracting, Grading, Paving & Utilities, Inc., the EEOC brought suit against the company on behalf of a dump truck driver whose religious beliefs prevented him from working from sunrise to sunset on Saturday Sabbath. As an accommodation, the employer offered to allow the employee to swap shifts and use paid personal leave for the Saturdays he was unable to work. After missing three Saturday shifts, the employer terminated the dump truck driver, and the EEOC sued on his behalf. The EEOC argued that the company had three possible reasonable accommodations: 1) it could have hired another driver to perform the Saturday work; 2) it could have created a pool of substitute drivers from its current employees in other positions; or 3) it could have transferred the dump truck driver to the position of general equipment operator. The trial court ruled in favor of the employer, and the Court of Appeals affirmed this decision. In so ruling, the Court of Appeals held that excusing the dump truck driver from Saturday work would impose more than a de minimis cost to the company, resulting in an undue hardship on the conduct of its business. The Court of Appeals also rejected the proposed transfer to another position as the EEOC failed to put forth any evidence to show that the company reasonably believed that the dump truck driver would have accepted a transfer.
Article courtesy of Worklaw® Network firm Shawe Rosenthal (www.shawe.com).
Upon receiving a request for accommodation under the ADA, when the disability and/or need for accommodation are not obvious, an employer is permitted to ask for medical documentation from an employee. The purpose for requesting this documentation is to assist the employer in determining if the individual has an ADA disability by learning about the nature of the disability and the individual’s functional limitations. Of course, there is no requirement under the ADA to obtain medical documentation to grant an accommodation and often it is unnecessary. Employers are encouraged to focus less on who has a disability and more on making accommodations that are reasonable and effective.
Medical documentation often establishes the need for long-term accommodations for an employee who has a disability of an extended or lifelong duration. An example would be an employee with diabetes who needs a flexible work schedule to receive weekly dialysis. The accommodation of a flexible schedule could be needed indefinitely over the term of the individual’s employment and it is likely that the individual’s medical condition and/or need for accommodation will not change over time. Employers sometimes ask JAN Consultants if updated medical documentation can be requested annually from employees who are receiving long-term accommodations for ADA established disabilities. The stated purpose for such a request is to “recertify” an employee’s need/qualification for an accommodation. The following questions address this issue.
- Can an employer annually request medical documentation from employees who are receiving long-term accommodations?
Requesting annual medical documentation would not be prudent under the ADA. Where reasonable medical documentation that establishes an ADA disability was provided by an employee for the purpose of obtaining an accommodation, an employer will not have cause to request updated information on an annual basis. According to the Equal Employment Opportunity Commission (EEOC), an employer cannot ask for documentation when the disability and the need for reasonable accommodation are obvious, or the individual has already provided the employer with sufficient information to substantiate an ADA disability.
- What if there is a change in limitations and/or accommodations related to the same ADA disability?
If the medical information provided previously sufficiently established the existence of a long-term impairment that substantially limits a major life activity, then EEOC says that an employer cannot ask for documentation that the person has an ADA disability. However, the employer may ask for reasonable documentation that addresses the specific need for the accommodation (if the need is not obvious).
- Is an individual with a disability who is receiving a reasonable accommodation entitled to receive it forever?
While many accommodations are provided long-term, the EEOC has informally stated that an individual with a disability receiving a reasonable accommodation is not necessarily entitled to receive it forever. There are several reasons why an employer may stop providing a specific accommodation, or change the type of reasonable accommodation being provided. For example, a person’s disability may no longer necessitate a reasonable accommodation, or the accommodation might become an undue hardship on the employer. It’s important for the employer and employee to discuss any changes in accommodations. If an accommodation becomes an undue hardship, it may be possible to identify an alternative solution. JAN Consultants can help identify alternative accommodation solutions. Visit AskJAN.org for more information.
To learn more about requesting medical documentation from employees under the ADA, see questions 6 – 8 in EEOC’s Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the ADA. Also, JAN offers many resources related to requesting medical documentation, determining disability, and providing and maintaining job accommodations. Examples include:
- Five Practical Tips for Providing and Maintaining Effective Job Accommodations
- How to Determine Whether a Person Has a Disability under the Americans with Disabilities Act (ADA) (Updated)
- Medical Inquiry in Response to an Accommodation Request
- Tracie DeFreitas Saab, M.S., Lead Consultant for the Job Accommodation Network (JAN)
Holiday Party Best Practices
Eggnog, latkes, old friends, parties – and a whole lot of beveraging! The holiday season is here! On behalf of everyone at HR That Works, let us be the first to wish you a safe and happy holiday!
To protect yourself and others follow these best practices:
- Make sure that attendance at the party is voluntary.
- Hire bartenders who are trained to spot intoxicated revelers and how to handle them.
- Provide non-alcoholic beverage options.
- Provide each guest with a limited number of drink tickets instead of an open bar.
- Have real food – not just chips and pretzels – served whenever alcohol is available.
- Stop alcohol service at least an hour before ending the function.
- Confront intoxicated guests immediately and cut them off; don’t wait until they are ready to leave the party.
- Don’t inquire of an apparently impaired guest whether they think they’re able to drive home. They can’t.
- Have a taxi service available for any guest who requires one.
- Call a friend or family member to pick up intoxicated guests.
- Arrange for discounted rooms at the event location (if possible) or a nearby hotel.
Don’t forget to have a fun party. Think Mr. Fezziwig!
Accommodating Religious Needs
The holiday season makes an ideal time to focus on the law regarding religion in the workplace. It’s also a great time to celebrate our religious differences! Title 7 of the Civil Rights Act of 1964 prohibits discrimination based on religion. There has been an increasing trends in these claims over the past years with over 4,000 claims being filed in 2011. Not surprisingly, many of these claims are combined with national origin discrimination allegations (i.e. someone alleges discrimination because they’re of Arab origin, as well as Muslim).
The EEOC makes this point about what a religion is:
“In most cases, whether or not a practice or a belief is religious is not an issue. However, the EEOC defines religious practices to include moral or ethical beliefs as to what’s right and wrong, which are sincerely held with the strength of traditional, religious views. The fact that no religious group espouses such beliefs, or that the religious group to which the individual professes to belong might not accept such belief, will not determine whether the belief is a religious belief of the employee or prospective employee. The phrase ‘religious practices’ includes both religious observances and practices.” Also, bear in mind that:
- It’s unlawful for an employer to fail to accommodate reasonably the religious practices of an employee or prospective employee, unless the employer demonstrates that accommodation will mean undue hardship in conducting its business.
- An employer may not ask about an employee’s religious background unless justified by business necessity.
Here’s an EEOC memo on accommodating religious expression.
Lastly, here’s a great link to the religious accommodation practices at the University of Missouri.
We love the Job Accommodation Network. They are a true resource for employee and employer alike. I encourage you to check out their excellent and free video series by clicking here. Archived titles include:
- ADA Update
- Managing Emotions in the Workplace: Victims, Villains, and Heroes (by yours truly)
- Providing Reasonable Accommodations to Employees with Mental Health Impairments
- Understanding and Accommodating Mobility Impairments in the Workplace
- Profit by Investing in Workers with Disabilities
Upcoming titles include Harnessing the Accessibility Features of Mobile Devices for Use as Reasonable Accommodations, Current Events in Accommodation, Learn More About Accommodations for Executive Functioning, and more.
In the case of Jones v. Nationwide a broker was fired because he failed his Series 65 exam on numerous occasions and never asked for any kind of disability accommodation until he was about to be fired. The court said the company was in their rights to not allow additional time as an accommodation to take the exam. Because he was required to be licensed to do his job and because he never asked for an accommodation in a timely matter the employer won the case. Note he was also offered a transfer to a lesser job which he declined.
Return to Work (RTW) and Stay at Work (SAW) programs are part of a business’ strategy to retain valued employees and to enhance the productivity of its workforce. “The goal of a return-to-work program, sometimes called a transitional duty program, is to make job changes or provide job accommodations that return individuals to work who are absent for workers’ compensation or disability-related reasons.”
As with workplace accommodation programs, a RTW program should have clear written policies articulating each party’s responsibilities. Accurate job descriptions including the physical demands of particular essential functions should also be developed. This helps everyone in the process (e.g., doctors, rehabilitation staff, and accommodation specialists) understand the job requirements. A good understanding of the job demands and the employee’s limitations and abilities is the starting point for determining if effective job accommodations will enable the employee to return to or stay at work while still recovering from injury. Effective job accommodations insure that the employee returns to work as soon as possible without risk to the employee or employer.
Of the employers who called JAN for technical assistance, most (82%) were doing so to retain a current employee. Thus, most of JAN’s publications contain accommodation solutions that could be generalized to a RTW or SAW situation. JAN also offers a number of examples specific to RTW.
Situation – A warehouse employee was transitioning back to work with lifting restrictions after being injured by falling boxes of product.
- Provide overhead structure for lifting devices;
- Place frequently used tools and supplies at or near waist height;
- Provide low task chairs, stand/lean stools, and anti-fatigue mats;
- Provide compact lifting devices to push and pull supplies and tools from storage;
- Make wheelchairs, scooters, industrial tricycles, or golf carts available; and
- Provide aerial lifts, rolling safety ladders, and work platforms.
The full publication, Fact Sheet Series: Job Accommodations for Return to Work is available for download. If you need additional guidance in identifying a device, or need information on where to buy the device, please call one of JAN’s Consultants.
Below are resources to learn more about developing your company’s RTW or SAW program:
- U.S. Department of Labor’s Office of Disability Employment Policy Return to Work Toolkit
- Disability Management Employer Coalition (DMEC)
- Return to Work Matters
- Society for Human Resource Management (SHRM) Disability Employment Resource Page (available to nonmembers and members alike)
- Louis E. Orslene, MPIA, MSW, Co-Director
- Return to Work: A Snapshot (Part 2 of a Continuing Series, Read Part 1)
As more than 80% of inquiries to JAN involve retention of a current employee, the importance of contributing technical assistance to stay at work and return to work programs is vital. Both practices ensure valued employees are retained, productivity is maintained, and recruiting and on-boarding costs are saved. This is the second article in a series about these important practices in the workplace. The following article results from a collaboration between JAN and Return to Work Matters (RTW Matters). RTW Matters is a practical online resource for employers and disability professionals. Look for the Join Now link on the left hand side of the RTW Matters homepage.
He Ain’t Heavy…He’s My Employee
In the spring of the year in 2008, on a cold and dreary day, a freezing rain fell to coat everything it touched. Dan had just parked the CDL class truck and was stepping down to move on to his next task. What Dan didn’t know was that the next task would be a trip to the emergency room. When exiting the truck, Dan fell down and landed on his knee, causing a tear that eventually lead to a surgical repair. Two months later, Dan was told he could go back to work, but would have some temporary restrictions. Although his employer didn’t have anything he could do within his physical capacity, they would try and “come up with something.” For the next seven months, Dan remained at home and collected compensation pay at two-thirds his salary.
Although he made use of the time by attending physical therapy and follow-up doctor appointments, Dan was getting bored and a little worried about whether he would ever return to his job. Dan missed the gang at work and would frequently stop by for a chat and any news on possible light duty assignments. Finally, an opportunity came up for Dan to return to work, and even though it was limited to four hours a day of snow plowing, he happily accepted. Eventually, Dan was released to full duty and returned to his heavy equipment mechanic position, but to everyone’s dismay, Dan’s knee started to give him problems within just a few weeks. When the MRI showed another tear, a second surgical repair was performed and once again, Dan was out of a job.
In desperation, Dan scheduled an appointment to talk with the company’s return to work coordinator, who immediately contacted the ergonomic specialist to schedule a meeting for the two of them to meet with Dan and his supervisor to form a return to work strategy. A job analysis was completed, which determined that the physical ability to kneel and squat were essential to performing the heavy equipment job. Unfortunately, these were the very same physical demands that Dan was restricted from doing on what was now a permanent basis. This could have been the end of the story except that the people involved were a bunch of very determined and creative folks.
An ergonomic evaluation of the work area was completed and another meeting was held to discuss a plan. The only thing keeping Dan from returning to his job was his inability to maneuver and work on the equipment. So, was there another way of maneuvering? Well, research would need to be done and budgets would need to be considered. Dan was told that they would let him know when they had some answers. During what Dan would say were some of the longest days of his life, he stayed home, earned less money and worried about his future.
Then came the day when Dan got the call, asking for him to come in to work for a meeting. The news was good. A hydraulic lift had been indentified that could be used to lift the work product to waist height. This allowed Dan to avoid the kneeling, squatting, and heavy lifting he was restricted from doing, while still allowing him to perform all the duties of his heavy equipment mechanic job. This job modification not only returned Dan to his full time job, it came with an additional benefit; the ability for other workers to use the lift, thereby preventing additional work injuries.
From the efforts of Dan and his supervisor, the ergonomic specialist and return to work coordinator, long term disability was prevented. This not only saved the employer money and a loss of production time by bringing on a new employee, it made them feel good that they had a part in doing the right thing by a valued employee. The other employees recognized the efforts of their employer, which instilled confidence that if they ever met with similar circumstances, they would be taken care of. For Dan, the benefits were huge. He could now go back to being a productive member of society and earn the money he was previously earning. For the community, the benefits were limitless: the return of a member to gainful employment and the prevention of unemployment side effects such as anxiety and depression, that affect the individual and family members. This case had many factors that led to its success, but most important was the great team collaboration, established partnerships, and good communication between the employee, supervisor, RTW coordinator, and all the other team players involved in the case.
The cost of the hydraulic lift? $2,667. The return of a valued employee? Priceless.
For more on lifting devices, the costs and benefits of job accommodation, and effective accommodation practices, contact JAN.
State Orders Air Canada to Pay over $325,000 for Refusing to Accommodate Customer Service Agent’s Disability
ELK GROVE, CA — The California Department of Fair Employment and Housing (DFEH) announced today that Air Canada must pay more than $325,000 in damages after the company fired one of its customer service representatives because of her disability. The Fair Employment and Housing Commission (Commission) found that Air Canada failed to accommodate the employee’s disability and then fired her because she could not lift cargo – a job function customer service representatives rarely perform.
“Employers must attempt to find reasonable modifications that allow employees with disabilities to keep working,” said the Department of Fair Employment and Housing Director Phyllis Cheng. “Using non-essential job functions as a pretext to deny employment to persons with disabilities is unlawful in California.”
The employee, Caroline Messih Zemaitis, worked as a customer service agent for Air Canada at Los Angeles International Airport from 1993 to 2007. Starting in 2004, she held a clerical position in the cargo division that did not involve physical labor. In 2005 and 2006, Ms. Zemaitis injured her back, shoulder, knee and wrist, and her doctor restricted her from performing such tasks as heavy lifting and repeated bending. She was able to keep working in the cargo division with minor accommodations such as Air Canada’s provision of a telephone headset and heating pad, and time off for physical therapy.
When Ms. Zemaitis became pregnant, her back condition worsened and she took a medical leave of absence for about a year. She tried to return to work in 2007 when her doctor released her with restrictions similar to those she had before, but Air Canada refused to respond to her many communications. Instead, Air Canada terminated Ms. Zemaitis’s because she could not lift cargo, a job function the airline’s customer service agents rarely perform.
The Commission found during this precedential decision that Air Canada had violated the Fair Employment and Housing Act. It ordered them to pay Ms. Zemaitis $102,737 in back pay, $19,720 in lost benefits, and $125,000 for emotional distress. Air Canada must further reinstate and pay Ms. Zemaitis $54,784 in wages plus interest and pay the State a $25,000 administrative fine. The airline will also have to post a notice about their liability and develop a policy and train management on reasonable accommodations necessary to allow disabled employees to continue working.