Can I require an employee to have no restrictions before they return to work following a medical leave?
Can I fire an at-will employee during the probationary period if they request leave?
Can a Florida company require an employee to disclose medication that could affect her work performance?
Can an employer fire a worker who has a seizure?
Can I fire an employee with breast cancer?
Can a business fire an employee who misses work because of asthma?
Is it disability discrimination if a supervisor mocks an employee with Celiac Disease?
Can your Florida business be sued over perfume, cologne, cigarette smoke smells in the workplace?
Is an employer required to give an employee short breaks when he gets angry or upset?
An employee suffered from bipolar disorder and from intermittent explosive disorder. He told his supervisor about his conditions and that he would sometimes get angry or upset. The employee said that he was able to control his anger if he took his medicine and could take a short break. The supervisor granted the employee’s request to take a short break when he got frustrated as long as his area was covered and he could be reached if necessary. So far, so good for the employer.
A year later there was a corporate restructuring, and the employee’s department was outsourced to a third-party vendor, and the employer laid off many of the employee’s co-workers, but kept him because of his technical expertise. The employer transferred the employee to a different department, which handled customer service calls. The employee was told that his new position required him to answer customer service calls from both technical and non-technical personnel.
The employee expressed to his boss and to a human resources manager his worry that, because of his disorders, he might lose his temper while talking to someone on the phone. The employee also told his new supervisor that he had a condition that sometimes he can’t control what he says and that it was not a good idea to have him answering phones. The employee asked his new supervisor if he could take customer service calls only from technicians, work nights, work from home, or could take a short break when he was having an episode. None of these requests were granted.
A short while later, the employee received a written reprimand after he made rude and unprofessional statements to team members during an online chat session. Six months later he was fired after he made another rude and unprofessional comment during a customer service call.
The employee sued his employer in federal court, alleging in part that his employer discriminated against him by not providing him with a reasonable accommodation for his disability. The district court granted the employer’s motion for summary judgment, and the employee appealed to the 11th Circuit Court of Appeals, which is controlling in Florida. Kassa v. Synovus Fin. Corp., 2020 U.S. App. LEXIS 3219 (11th Cir. Feb. 3, 2020).
As a reminder, in order for an employee in Florida to establish a prima facie case of discrimination under the Americans with Disabilities Act (ADA), an employee must show that he (1) is disabled, (2) is a qualified individual, and (3) that he was subjected to unlawful discrimination because of his disability.
One of the main focuses of the lawsuit, and the appeal was whether the employer failed to provide a reasonable accommodation to the employee. The employee made multiple arguments, and was unsuccessful on most, but was successful on one argument.
As a reminder, an employer in Florida is liable for unlawful discrimination under the ADA when the employer fails to make reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability - unless doing so would impose an undue hardship.
The employee argued that he should have not had to answer phone calls from customers. The Appellate Court rejected this argument, explaining that the employee failed to establish that this proposed accommodation was reasonable. Because answering customer service calls constituted an “essential function” of the employee’s position on the customer service team, the employee’s request that he be exempted from answering all or some of those calls was not reasonable. The court explained that this was because employers are not required to transform a position into another one by eliminating functions that are essential to the nature of the job as it exists.
The employee also argued that he should have been allowed to work from home and to work at night. The court rejected this argument because the supervisor testified, and nothing in the record disputed, that the employer’s telephone system would not enable customer service calls to be routed to off-site employees and that no night shift position existed on the customer service team. Given this evidence, the Court ruled that the employee failed to show that these requests were reasonable ones.
The third argument that the employee made, which was successful, was that he should have been allowed to take short breaks. The court determined that the employee had established that his request to take short breaks was a reasonable one. The evidence showed that the employee could control his anger in part by taking short breaks, which would thus enable him to perform an essential function of his job. The Court noted that when the employee first worked for the company, his first supervisor had allowed him to take short breaks with positive results. The second supervisor also testified that he generally permitted his customer-service employees to take breaks when they get frustrated. Therefore, the Court drew the inference that the employee was not permitted to take short breaks while working for the new manager. Because an employer’s failure to provide a reasonable accommodation is itself a violation of the ADA, the appellate court ruled that the employer in this case was not entitled to summary judgment on this claim. Thus, the appellate court vacate in part the district court’s grant of summary judgment on the employee’s failure-to-accommodate discrimination claim with respect to the employee’s request to take short breaks. The Appellate court remand the case back to the lower court for further proceedings. This means that the employer’s “win” has just been yanked back in part and now is forced to continue to litigate this claim.
The facts of this case were taken from court documents, and it is possible that the employer may eventually be successful at the end of this lawsuit. Nonetheless, this case illustrates for Florida employers how risky it can be to just reject requests made by employees. This is especially true when the request, such as a short break, probably would not have cost the employer much, if anything.
It is important that you provide your employees, especially managers and supervisors with training to identify potential discrimination issues.
If you need any assistance in determining in addressing a disability issue or other discrimination situation concerning your Florida business or if you need guidance in any employment policies, please email the Law Office of David Miklas, P.A. or call us at 1-772-465-5111.
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