October 17, 2017

October 17, 2017

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October 16, 2017

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Employers Should Engage In the Interactive Process Even If They Believe the Employee Is Not Qualified.

Diligent and well informed employers know that it is the best practice to engage in an individualized assessment of a requested accommodation. Sometimes an employer may be tempted to refuse to discuss an accommodation because it doesn’t believe that the request is reasonable or because the employee is not “qualified.” It should resist the temptation.

A recent Maryland case drove home this point.  In Van Rossum v. Baltimore County, Maryland, the Plaintiff was a community health inspector in Baltimore County who alleged that she started experiencing a variety of symptoms in May 2009, including severe pain, reduced vision, numbness, and “brain fog,” all of which she attributed to the presence of mold and fungus in the courthouse where her office was located. After her department moved to the fourth floor in a new building her symptoms worsened which she attributed to poor ventilation. The County refused her request to change offices from the fourth floor and she felt forced to retire early. She claimed constructive discharge, a failure to accommodate, discrimination and retaliation for seeking an accommodation.

Because the County did not even attempt to engage in the interactive process, at trial it could only argue that Van Rossum was not entitled to a reasonable accommodation because she was not qualified. It based its argument on the fact that after she quit, Van Rossum received Social Security Disability Insurance (“SSDI”) which was based on a determination that she was unable to work. There were two problems with this. First, Van Rossum did not apply for SSDI until after her termination and so the County could not have based its failure to engage in the interactive process on that basis. Second, pursuant to Cleveland v. Policy Management Systems Corp., the fact that an employee receives SSDI is not conclusive of the qualification issue under the ADA. In Cleveland, the U.S. Supreme Court held that receipt of such benefits does not necessarily conflict with an ADA claim and it is possible for an employee to provide a sufficient explanation for any apparent contradiction i.e. that she could have done the job with a reasonable accommodation.

The court, following Cleveland, allowed Van Rossum to try and explain the apparent contradiction. She explained to the jury that she was unable to work only because the County denied her accommodation and forced her to return to work in a place that made her sick. She testified that she could perform the essential functions of her job when accommodated and would have been able to do so if they had let her switch offices. It was only after the denial of the accommodation that her health deteriorated because she had to work on the fourth floor. The jury agreed with Van Rossum.

Had the County engaged in the interactive process with Van Rossum it may have been able to offer an accommodation that would have been reasonable even if it wasn’t the one Van Rossum preferred. Alternatively, it may have been able to show that there was no reasonable accommodation available. By failing to engage at all, the County handicapped itself at trial.

Jackson Lewis P.C. © 2017

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About this Author

Daniel Schwarz, Jackson Lewis Law Firm, Portsmouth, Labor and Employment Law Attorney
Principal

Daniel Schwarz is a Principal in the Portsmouth, New Hampshire, office of Jackson Lewis P.C. His practice includes advising private and public sector employers and educational institutions on all aspects of labor and employment law, including wage and hour, wrongful termination, anti-discrimination/retaliation, covenants against competition and breach of confidentiality.

Mr. Schwarz guides employers in creating employee policies and handbooks; provides advice regarding disciplinary procedures up through and including...

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