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Navigating ADA Compliance

 

A recently filed EEOC suit involving a ship deckhand's "perceived disability" highlights some of the ADA requirements that could sink employers in court.

 

Monday, November 6, 2017
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There are several lessons for employers stemming from a recent Equal Employment Opportunity Commission civil suit in Louisiana that alleges a deckhand was fired illegally after he was medically cleared to return to work following treatment for "situational depression" through the company's employee assistance plan, legal experts say.

"I don't see this as breaking new ground," says Julia E. Judish, special counsel at Pillsbury Winthrop Shaw Pittman in Washington, "but I do see it as a cautionary lesson for employers." The case, she says, highlights the pitfalls employers should avoid when employees' mental health status comes up against a company or its managers' perceived or actual safety concerns.

The Sept. 21 suit filed in the U.S. District Court's Eastern District of Louisiana alleges several Americans with Disabilities Act violations, including that the company, Gulf Logistics Operating Inc., of Larose, La., required the employee, Jason Gunderson, to have a medical exam before returning to work, and that they fired him even after he was medically cleared to return to work without restrictions. In other words, they discriminated against a perceived disability and had no basis for the firing. (Gulf Logistics operates a fleet of offshore workboats in the Gulf of Mexico oil and gas industry.)

In the suit, the EEOC said Gunderson had requested an EAP referral because he was having marital problems and wanted help to "cope with the stress created by the separation from his wife." He was off the work vessel for five days to get treatment and after was given a medical release with no work restrictions by both the company doctor and his own therapist.

http://magcdn.lrp.com/MAGDATA/servlet/DataServlet?fname=ThinkstockPhotos-178839103ADAL.jpgTwo weeks after he returned to work, however, the company fired him. The suit alleges that the company's action relied on the "biased perceptions of the vessel captains to determine that Jason Gunderson was unable to perform his duties or that he posed a threat to the safety of himself and to others due to his depression or adjustment disorder." In addition, the EEOC wrote, no vessel captain "issued any warnings nor counseled Jason Gunderson regarding his inability to perform his duties, as Mr. Gunderson was able to perform the essential functions of his job upon his return to work without any restrictions."

Although Gulf Logistic did not respond to repeated requests for comment, there are still potential lessons to be gleaned from the filing.

Judish says "employers need to understand . . . that you can violate the ADA even with employees who do not have a disability simply by asking them disability-related questions or requiring them to have a medical exam when you cannot show that the need for the medical exam is job-related and consistent with business and safety. It has to be based on reasonable beliefs and objective evidence."

Debra Dyleski-Najjar, president and founder of the boutique law firm Najjar Employment Law Group in the Boston area, says providing job details is critical when seeking a medical evaluation: "When asking for a physician's input, you must provide a clear understanding of what the job entails. I always send the physicians a letter, asking 'Can the employee safely perform his or her job duties and, if no, is reasonable accommodation necessary?' "

In addition to some doctors not being given enough contextual information, many don't understand how their opinions are going to be interpreted as biased or not under the law, so they are reluctant to take a stand, she says, adding that the EEOC provided guidance on the issue last year with the release of "Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights." In addition, it published "The Mental Health Provider's Role in a Client's Request for a Reasonable Accommodation at Work," which is directed at mental health professionals but lays out an employer's options on how to respond to such requests.

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"I think employers should not be afraid to ask for information and engage in the interactive dialogue [with the employee about reasonable accommodations]," Dyleski-Najjar says. "But, they will never win an ADA case -- either for a mental or physical condition -- unless you have a healthcare provider's opinion that is supporting your decision."

John K. Diviney, a partner in Rivkin Radler's employment and labor practice group in Uniondale, N.Y., says it would be a good idea for employers to limit how many people in an organization know about an employee's medical or mental conditions to avoid ADA bias.

"You would prefer [a manager] not know about some of these issues if they are really not impacting how [the employees] are performing their job," he says. "Physical disabilities tend to be easier for people to grasp and understand. [Mental health issues] are subject to more biased or preconceived notions that are not really fair or objective.

"The case highlights the importance of the employer focusing on the performance of the essential functions of the job and not being caught up in the stereotype of disabling conditions," Diviney says. "There could be a legitimate safety and health threat as well but if the company takes an action about person's disability or perception of disability, they have to have a meaningful discussion -- an interactive process about reasonable accommodations."

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