reasonable accommodation

Employers in New York City are required to provide their employees with reasonable accommodations related to childbirth and pregnancy. The New York City Commission on Human Rights has published a new factsheet and notice. The notice should be provided to all employees upon hire, and posted in the workplace to provide employees with notice of their rights under the NYC Human Rights Law.

The notice and factsheet outline employers’ responsibilities with respect to pregnant employees, and recommend that employers work with employees to implement accommodations that recognize employee contributions to the workplace and help keep them in the workplace for as long as possible. The notice and factsheet also provide employees with examples of reasonable accommodations, such as breaks to rest or use the bathroom while at work, and time and space to express breast milk at work.

The New York City Department of Consumer Affairs (“DCA”) has issued proposed rules  for the implementation of the Fair Workweek Law. The law establishes scheduling practices for fast food and retail workers in New York City and is set to go into effect on November 26, 2017.

With regard to retail employers, the proposed rules include:

  • Workplace notice positing requirements, § 14-02.   The DCA’s notice template is not yet available.
  • Workplace schedule posting requirements, § 14-04.   Retail employers must conspicuously post schedules three days before work begins.   The proposed rule expressly provides that employers may not post or otherwise disclose to other employees the work schedule of an employee who has been granted an accommodation based on the employee’s status as a survivor of domestic violence, stalking, or sexual assault, where disclosure would conflict with the accommodation.
  • Recordkeeping requirements to document compliance, § 14-08(a).   The proposed rule states these records must be maintained “in an electronically accessible format” and show:
    • Actual hours worked by each employee each week;
    • An employee’s written consent to any schedule changes, where required; and
    • Each written schedule provided to an employee.
  • Employee work schedule request requirements, § 14-08(b) and (c).   Within two weeks’ of an employee’s request, retail employers must provide employees with their work schedules for any previous week worked for the past three years. Within one week of an employee’s request, retail employers must provide the most current version of the complete work schedule for all employees who work at the same location, with the exception of those employees with accommodations based on the employee’s status as a survivor of domestic violence, stalking, or sexual assault.
  • Procedural guidance for employees who wish to proceed with a private right action against their employers for violations of the law.

A public hearing on the proposed rules is scheduled for Friday November 17, 2017. The deadline for written comments is 5:00 p.m. on November 17, 2017.

In a case emphasizing the importance of acting in good faith in the interactive process and how an employer can do it right, on February 13, 2015, the First Circuit denied the EEOC’s petition for a rehearing en banc of the court’s decision to dismiss a lawsuit brought against Kohl’s Department Stores, Inc. by a diabetic former employee who claimed that her erratic working hours were exacerbating her condition.  EEOC v. Kohl’s Dep’t Stores, Inc., 774 F.3d 127 (1st Cir. 2014), reh’g en banc denied (Feb. 13, 2015).

Pamela Manning, a former sales associate at Kohl’s, had type I diabetes.  For two years, she worked predictable shifts as a full-time sales associate.  Following a restructuring of the staffing system nationwide in January 2010, however, Manning began working a schedule with unpredictable shifts, including some night shifts followed by day shifts (in Kohl’s parlance, “swing shifts”).  Manning alleged that the new schedule aggravated her diabetes.

After informing her supervisor that working erratic shifts was endangering her health, Manning obtained a doctor’s note requesting that she be scheduled to work “a predictable day shift.”  Manning’s store manager contacted human resources to discuss Manning’s request.  Kohl’s determined that it could not provide Manning’s preferred schedule of day-time hours only, but authorized the store manager to offer a schedule with no swing shifts.

On March 31, 2010, during a meeting with her store manager and immediate supervisor, Manning again requested a “steady shift” with mid-day hours, but was told that she could not be given a consistent schedule.  Manning stormed out of the meeting, saying that she had no choice but to quit.  Her supervisor followed her and asked what she could do to help, but she could not convince Manning to reconsider her resignation or to discuss any alternative accommodations.

Two days later, Manning contacted the EEOC to file a charge of discrimination.  On April 9, 2010, the store manager called Manning and asked that she rethink her resignation and consider alternative accommodations for both part-time and full-time work.  Manning ignored this overture and got off the phone as quickly as possible.  A week later, after hearing nothing further Manning, Kohl’s treated her departure as voluntary and terminated her employment.

Based on this record, on December 19, 2014, the First Circuit concluded that Kohl’s made earnest attempts to discuss potential reasonable accommodations.  By contrast, Manning’s conduct constituted a refusal to participate in the interactive process in good faith, warranting summary judgment in favor of Kohl’s.  In addition, the First Circuit ruled against the EEOC on Manning’s constructive discharge claim, finding that a reasonable person would not have felt compelled to resign when her employer offered to discuss other potential work arrangements with her.

In reaching its decision, the First Circuit emphasized that both the employer and the employee have a duty to engage in good faith, and that empty gestures by the employer will not satisfy this duty.  But if an employer does engage in the interactive process in good faith, and the employee refuses or fails to cooperate in the process, the employer cannot be held liable for a failure to provide a reasonable accommodation.

Employers addressing reasonable accommodation requests from their employees can learn from Kohl’s actions in this case.  Kohl’s benefited from its representatives’ diligence in documenting their response to Manning’s request (including the internal discussions) and in following up with Manning to give her an opportunity to propose alternative accommodations for her diabetes.  Thus, even though the store manager never conveyed an offer of “no swing shifts,” the First Circuit was able to find that Kohl’s made real efforts to work with Manning and that Manning unreasonably refused to continue the dialogue with Kohl’s.  And Kohl’s succeeded in winning dismissal of the ADA claim.  Employers who follow this course of conduct ensure their compliance with the ADA and, in the event an employee refuses to reciprocate discussions, may establish a defense to liability in a failure to accommodate lawsuit.

By Marisa S. Ratinoff and Amy Messigian

In a matter of first impression, the California Court of Appeal held last month that an employee who exhausts all permissible leave under the Pregnancy Disability Leave (“PDL”) provisions of the California Fair Employment and Housing Act (“FEHA”) and is terminated by her employer may nevertheless state a cause of action for discrimination.

In Sanchez v. Swissport, Inc., the plaintiff, a former employee of Swissport, alleged that she was diagnosed with a high risk pregnancy requiring bed rest in February 2009 and was due to give birth in October 2009. The plaintiff alleges that she made Swissport aware of her condition and need to remain on bed rest until after the birth of her child. However, with three months remaining in her pregnancy, the plaintiff was terminated by Swissport in July 2009 after exhausting her 4-month PDL entitlement as well as her accrued vacation. The plaintiff alleges that she would have been able to return to work shortly after October 2009 and that her employer never engaged in the interactive process in order to identify available accommodations, such as the extended leave of absence she had requested.

At the trial court level, Swissport challenged the lawsuit on the grounds that the plaintiff had exhausted her PDL entitlement and that no further leave was required. The trial court agreed and the plaintiff appealed. Reversing the decision, the Court of Appeal stated that an employee’s entitlements under PDL are supplemental to the general non-discrimination provisions of FEHA.

While an employer must provide 4 months of PDL to an employee disabled by pregnancy without regard to the hardship to the employer, its duty continues after PDL has been exhausted to engage in the interactive process with the employee to determine whether it may accommodate the disability. Continuing the leave of absence may be a possible accommodation if it will not be an undue hardship to the employer.

This case presents a cautionary tale to employers who base termination decisions simply on the exhaustion of a guaranteed leave entitlement under state or federal law. In all cases, where an employee exhausts their guaranteed leave entitlement but seeks to continue his or her leave of absence due to disability, employers should consider whether an extended leave of absence may be accommodated. If it will be difficult to accommodate an extended absence in the employee’s current position, an employer may also consider transferring the employee to a comparable vacant position and continuing his or her leave of absence from that position. Discussing available options with counsel is highly recommended.