3 employer bummers: Veganism a "religion," ADA interactive process fails, and costly severance mistake

A court says veganism might be a "religion" requiring accommodation, a school district gets nailed for failing to engage in the "interactive process" under the Americans with Disabilities Act, and yet another employer makes an avoidable and very expensive mistake with a severance package. Fun and games!

Is veganism a religion? Could be. A federal judge in Ohio has refused to dismiss a religious accommodation claim brought by a customer service representative at a Cincinnati children's hospital. The plaintiff was fired after she refused to get a flu shot on the ground that chicken eggs are used in preparation of flu vaccines and she was a vegan. Therefore, getting the shot would have violated her beliefs. The hospital moved to dismiss her lawsuit for failure to state a claim for which relief may be granted, which required the court to assume that all of the allegations in her lawsuit were true.

Flu shots are chock-full of this noxious substance.

The judge said that it was possible that the plaintiff's veganism could be a "moral or ethical belief" adhered to with the force of a religious belief, which the Equal Employment Opportunity Commission has said it will treat as entitled to reasonable accommodation under Title VII. In addition, the plaintiff submitted some material indicating a "Biblical basis for veganism," which may have bolstered her contention that her veganism was "religious" in nature or at least held with the same strength as a religious belief. I'm not sure whether this is the material the plaintiff used, but it does provide an example of a "religious" justification for veganism.

The court recognized that the hospital may still be able to prove that it had legitimate patient-safety reasons for insisting that the plaintiff receive a flu shot. But because the hospital filed this motion so early in the process, the court could not rule on that yet. (I've previously expressed my opinion -- spoiler alert: generally negative -- on the wisdom and utility of Rule 12(b)(6) motions to dismiss for failure to state a claim.) Also, because this was a preliminary motion, it is possible that the hospital will later be able to present evidence that the employee's veganism was not, in fact, a "religious" belief, or not sincerely held.

So all is definitely not lost for this employer. The outlook is less rosy for the next two employers I'll discuss.

UPDATE: Three great minds think alike! Eric Meyer of The Employer Handbook blog posted about this case on Friday, as well, and he says in a comment to my post that the "religious" justification that I linked (above) was indeed the one that the plaintiff used. Also, Jeffrey Polsky of California Employment Law points out that the California Court of Appeals took a different view of this issue in 2002. The plaintiff in the California case claimed that his veganism was spiritual in nature and held with the force of a traditional religious belief. The Court of Appeals upheld a demurrer, which is essentially the same thing as a Rule 12(b)(6) motion to dismiss. In other words, the California case, like the Ohio case, was decided early in the proceedings and on the assumption that all of the allegations in the plaintiff's lawsuit were true. Although the California decision had a detailed discussion of federal law, the court was interpreting its state's Fair Employment and Housing Act, and not Title VII.

I will be the featured guest on the DriveThruHR web radio program, Human Resource's #1 Daily Radio, from 1 to 1:30 p.m. Eastern/noon to 12:30 p.m. Central this Thursday, January 10. If you have a few minutes to spare, please tune in!

No interactive process? No summary judgment! A 13-year teaching assistant in a Smart Start early childhood enrichment program in Texas was diagnosed with arthritis in both of her knees. She took a medical leave of absence during the 2009 school year so that she could have surgery on one of her bad knees, and used up all but one day of her leave under the Family and Medical Leave Act. She would not be eligible for more FMLA leave until February 2010. In August 2009, she asked to have approximately 2 1/2 more months off for surgery on the other knee. When told that she had no more FMLA leave available, she (allegedly) proposed working with a cane or walker, or using pain medications, to get to February 2010, when she would be eligible for another leave of absence. According to her evidence, the school district said no to these alternatives and did not engage in any effort to discuss with her how she could take care of small children while using a cane or walker, or while on presumably mind-altering pain meds.

This, of course, was the school district's fatal mistake.

The plaintiff submitted a request for leave for the second surgery, and got no response until about 10 days later, after she had already gone out of work. When the response finally came, it was to deny the leave and to fire her. The plaintiff sued under the ADA for failure to accommodate or engage in the interactive process. The school district moved for summary judgment, but a federal judge in Texas denied the motion on the ground that the district had not engaged in the interactive process. Because it did not do so, it could not show that the plaintiff's proposed alternatives to a leave of absence were unreasonable, or an undue hardship.

I know I've been a broken record on the need for employers to engage in good faith in the "interactive process" with employees who request time off or other accommodations at work, no matter how unreasonable or even impossible the proposed accommodations may appear. Here is one more reason why.

If this record were broken, it would be me talking about the interactive process. (Note title of song and name of artist. LOL!)

Employer makes very expensive severance mistake. In our third and final case of the week, a furniture manufacturer in South Dakota decided to close its doors. According to the company, it did not expect to find a buyer. So the company went ahead and sent out a memo to employees (to the employer's credit, far in advance) and let them know what was happening. The memo said that severance pay would be issued to all employees who stayed on until the facility closing. Two later employee communications said the same thing. One communication specifically said that the company would not "renege" on its promise to pay severance.

"Gentlemen, it looks like we get severance even if a buyer hires us all! Huzzah!"

Well, lo and behold! A few months later, upon the verge of the closing, the company found a buyer, and the buyer agreed to hire many of the company's employees. So now the company's like, OK, we'll pay severance to employees who aren't hired by the buyer, but we don't have to pay it to the employees who get hired by the buyer. And the employees are like, NO, you said you would pay us severance if we stayed on until the closing, and we did, so you owe us the money now regardless of whether we are hired by the buyer. And the company is like, NO, WE DON'T. And the employees are like, YES, YOU DO. (Etc.)

So, they went to court, and both sides filed motions for summary judgment because the facts of the case were undisputed. You can probably guess the outcome -- for the most part, the court granted summary judgment to the employees and denied the employer's motion. None of the communications sent out by the company said anything about ineligibility for severance if the employee was rehired by the buyer. Moreover, the employees' relationship with the company and the buyer was at-will, meaning that the buyer was not under any obligation to rehire them. A contract is a contract, and these severance communications are a contract, the court said. The employees upheld their end of the bargain by staying on until the company closed its doors. (Even though the doors reopened virtually* the next day under the new company.) So the employer is going to owe more than $2 million in severance pay to employees who haven't even lost a single day of work.

*The facility was closed for two weeks between the time that the company vacated and the buyer took over.

Ouch! How could this have been avoided?

In plant closing situations, it is normal for employers to want employees to stay on until the bitter end because it makes the transition that much smoother. It is also normal for employees to want to find jobs elsewhere while the gettin' is good. To encourage the employees to stay (and possibly forgo some job opportunities elsewhere), employers frequently offer what is known as a "retention bonus" incentive to reward employees who stay on until the company is ready to let them go.

Unfortunately for this company, it appears that it did not consider the possibility that a buyer might be found and that the buyer would immediately hire many of the employees with no break in service.

So, in a spirit of, "It could be that the purpose of your life is only to serve as a warning for others," I submit that any severance package that includes a retention incentive should expressly address what will happen in the event of a purchase/rehire. If you want to pay the bonus regardless and can afford it, then great, because it was probably really stressful for your employees while they waited to learn of their fate -- even though everything turned out all right in the end. But if you don't or can't, then you need to include that in all written communications regarding your severance package. Otherwise, you risk the possibility that a court will find that you must pony up, even if your employees didn't suffer any loss.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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