What are an Employer’s Obligations to Engage in a Meaningful Americans with Disabilities Act (ADA) Interactive Process During an Employee’s Suspension Pending Termination?
The Seventh Circuit Court of Appeals in Spurling v. C&M Fine Pack, Inc. (No. 13-1708), a January 13, 2014 decision, addressed the obligations of employers under the Americans with Disabilities Act (ADA) to engage in an interactive process and discuss reasonable accommodation for a disability, even when the employee is on a final suspension pending termination. The case is also instructive in setting forth what is necessary to communicate a termination to an employee.
Kimberly Spurling worked the third shift at C&M Fine Pack, Inc. (C&M) since February 2004. Beginning in 2009, Spurling began to show periods of decreased consciousness and alertness. She was given several disciplinary warnings and write-ups. On February 15, 2010, she was discovered sleeping in the restroom and was given a final warning and put on suspension.
After returning to work from her suspension, Spurling met with the plant manager and her supervisors and informed them that her sleep issues were the result of prescribed medication. She also produced a note from her doctor which stated that she should “…discontinue medicine related to her passing out-please excuse symptoms [at] work.”
Nevertheless, Spurling continued to have problems staying awake at work. On April 15, 2010 she received a final warning and put on suspension for being asleep at her work area and was informed that the company would make a termination decision by April 19. The document stated in part:
“…A review of your personnel file shows that in the last 12 months you have received three write-ups for performance and the last one a final warning with suspension for sleeping during your shift. Per our progressive discipline practice you have been suspended pending determination of the level of discipline you will receive for the latest incident. You were informed that you could face termination of employment per our progressive disciplinary practice…”
The following day, Spurling informed the Human Resources Manager that her issues might be related to a medical condition. The HR Manager gave Spurling a letter containing her ADA rights and documentation for her doctor to complete, which was to be returned before April 30. The same day this paperwork was given to Spurling, the HR Manager recommended her termination to C&M’s Vice President of Human Resources.
On April 21, Spurling met with her physician for an examination. Her physician determined that Spurling has a mental and physical disability covered under the ADA, recommended periods of scheduled rest, and noted additional medical workup was in progress. Spurling immediately returned the paperwork to the HR Manager and was informed the document would be reviewed and sent to the corporate office. No meeting or discussion to begin the interactive process was ever held. Instead, Spurling was terminated on April 28, 2010. One month later she received a diagnosis of narcolepsy, which was manageable with appropriate medication.
Spurling filed suit, alleging violation of the ADA and the FMLA. The District Court granted summary judgment for the Company on both counts. On appeal, the Seventh Circuit reversed on the ADA count. C&M argued the April 15 email notifying Spurling of her suspension was a termination decision and because C&M had no information concerning Spurling’s medical condition until after April 15, it had no ADA obligations or liability.
The Court of Appeals found that the April 15 email was not sufficient notice of termination. The Court used an “unequivocal notice of termination” test to determine the date of termination. To meet this test there must be “…a final, ultimate, non-tentative decision to terminate the employee…” and the employee must receive “…unequivocal notice of its final termination decision.” The Court found that the April 15 email advising Spurling she was suspended pending determination of the next level of discipline was merely notice that an investigation would be conducted to reach a decision on termination. C&M, therefore, had information before her final termination that Spurling might have a medical condition that affected her work. In terminating Spurling after it had information concerning her disability, but before engaging in an interactive process on reasonable accommodation, C&M may have violated the ADA. Because there existed disputed facts concerning the interactive process, the Court remanded the case for consideration of whether C&M properly engaged in the interactive process.
There are two important takeaways from this decision. First, notice to an employee that he or she has been terminated must be an unequivocal, non-tentative, final notice of the termination. The case further reminds us of an employer’s obligation to engage in a meaningful interactive process and not ignore the medical information provided. In Spurling, the litigation might have been avoided by simply giving Spurling a leave of absence, before any termination decision, for the additional medical tests and to explore different prescribed medications to control her narcolepsy.