This post is for anyone involved in the process of exploring reasonable accommodations for applicants and employees with disabilities and for anyone involved in the process of terminating employees. The case that I discuss illustrates the importance of exploring reasonable accommodations when an employee with a known disability suggests that s/he cannot work and also of paying attention to the timing of a decision to terminate in relation to developments that may trigger responsibilities under employment laws.
In Wellner v. Montefiore Medical Center, Case No. 17 Civ. 3479 (KPF) (S.D.N.Y. August 29, 2019), a federal court ruled that a doctor, who was arrested after an altercation with police and who claimed on applications for disability benefits that she could not work, may proceed on her claims that her employer failed to reasonably accommodate her and retaliated against her in violation of the Americans with Disabilities Act (ADA) and New York State law.
Dr. Michler, Chairman of Montefiore’s Department of Surgery, hired Dr. Wellner in 2015. In February of 2016, Dr. Wellner was arrested. Her arrest was the subject of an article in the New York Post. After reviewing the press reports, Dr. Michler concluded that Dr. Wellner should be terminated. Montefiore, however, placed Dr. Wellner on paid administrative leave pending completion of an investigation into her arrest.
Montefiore and Dr. Wellner stayed in contact, often through their respective attorneys, between February and late June, 2016. In a late-June email, the attorney for Montefiore informed his colleagues that it was his understanding that Dr. Wellner was going to enter a plea in July, that he had told Dr. Wellner’s attorney that if the case was not resolved by June 20 Montefiore would need to reconsider whether Dr. Wellner’s leave would remain paid, and that Dr. Wellner was undergoing psychiatric care as a result of her altercation with police and wanted to go on short term disability.
On June 29, Montefiore informed Dr. Wellner that it was converting her leave to unpaid leave. On June 30, Dr. Wellner inquired about her job status, indicating that she could return to work at some point. On July 1, Dr. Michler and several others had a conference call about Dr. Wellner. After that call, it was Dr. Michler’s understanding that he had the authority to fire Dr. Wellner for her arrest and the associated media coverage (which, you may recall, he wanted to do back in February). On July 5, Dr. Michler fired Dr. Wellner.
On July 7, 2016 Dr. Wellner signed an application for disability benefits in which she stated she was unable to perform all duties and activities of employment. On July 12, Dr. Wellner pled guilty to disorderly conduct.
In May, 2017, Dr. Wellner filed her legal action. On July 7, 2017, she signed an application for Social Security Disability Insurance Benefits in which she stated she became disabled on February 19, 2016 and remained unable to work.
Montefiore filed a motion for summary judgment, which is a process by which a party asks the court to enter judgment in its favor without sending the case to a jury. The court decided that the case must go to a jury unless otherwise resolved.
*The facts are summarized from a published court decision. Nothing in this post is intended to suggest whether those facts are true or not.
Lesson No. 1: A Request for Reasonable Accommodation Can Be Subtle. During her administrative leave, Dr. Wellner suggested that she eventually could return to work with appropriate recovery time. The court construed her statements as a request for reasonable accommodation (appropriate recovery time). Remember, employees are not required to use “magic words” when requesting a reasonable accommodation.
Lesson No. 2: Don’t Make Assumptions When An Employee States S/he Cannot Work. Dr. Wellner stated on applications for disability benefits that she cannot work. The court determined that such statements did not render Dr. Wellner unqualified for her position, noting that there was nothing in her statements suggesting that she could not work with reasonable accommodation. Significantly, Dr. Wellner filled out her disability benefit applications after her request for reasonable accommodation was denied. Once she knew that her requested reasonable accommodation was denied, she believed that she could not do the job. The court determined that, under these facts, her statements on her disability benefit applications were not inconsistent with contending that she could have returned to work if Montefiore had granted her request for a reasonable accommodation. Expanding on these facts, it is important to remember that, if an employee with a known disability claims that s/he “cannot work” (or something similar), it may be important to determine whether that means that s/he cannot safely perform the job’s essential functions even with reasonable accommodation.
Lesson No. 3: Timing May Matter. When determining whether Dr. Wellner should have a jury decide her claim that Montefiore would not have terminated her if she had not requested a reasonable accommodation, the court considered the timing of the decision to terminate. Dr. Michler wanted, but was not authorized, to terminate Dr. Wellner in February 2016. In late June, 2016, Montefiore learned of Dr. Wellner’s medical condition and request for accommodation. Around July 1, Dr. Michler understood, after a conference call, that he had the authority to fire Dr. Wellner for her arrest and the associated media coverage (the very reasons he wanted to fire her in February), which he did. Montefiore argued that Dr. Michler was the sole decision-maker, but the court determined that the above facts cast doubt on that explanation. Montefiore did not explain how or why Dr. Michler suddenly came to have the authority to fire Dr. Wellner in July when he did not have that authority in February. The court determined that a jury should sort it out. Remember, although there often are legitimate, non-discriminatory explanations for what may appear to be suspect timing of employment decisions, it may be critical to analyze documentation and other evidence to support such reasons before moving forward. In the absence of such evidence, an employer runs the risk of a court finding a lack of consistency in the explanation of the reason for termination, which increases the likelihood of a jury trial.
Final Thoughts and Recap of Practice Tips
Montefiore likely would have faced no claim for disability discrimination had it authorized Dr. Michler to fire Dr. Wellner in February as he desired. Montefiore chose instead to place Dr. Wellner on paid administrative leave and provide her with an opportunity to clear her name. Montefiore essentially argued that it terminated Dr. Wellner because it grew tired of her delay in resolving the charges against her, and it acted in response to her request for clarification of her employment status. A jury ultimately may be persuaded by this explanation. That said, this case illustrates the importance of documenting efforts to do more for an employee than is required. For example, if you place an employee on administrative leave pending resolution of criminal charges, consider documenting the leave in writing, clarifying what will happen if the matter is not resolved by a specified date (making sure that your intended approach complies with applicable State law).
A recap of practice tips follows:
- An employee with a disability does not have to use “magic words” to request a reasonable accommodation. Something as subtle as a request for time off may qualify.
- Under the ADA and similar State laws, a crucial issue often is whether an applicant or employee with a disability is able to safely perform the essential functions of the job, with or without reasonable accommodation. If an employee with a known disability (or his/her doctor) claims that s/he “cannot work” (or something similar), it may be important to understand whether that broad statement takes reasonable accommodations into account.
- Consider documenting the legitimate business reasons for delays in making a key employment decision, or in implementing a decision already made. It may be important if there is an intervening event that triggers application of certain employment laws.
- Consider documenting any conditions to your efforts to treat an employee more generously than required so that if there is an intervening event that triggers application of certain employment laws, your intent was clear before you knew of such event.
(This post is not legal advice. Consider consulting with a lawyer about specific situations.)