Employment & Labor Insider

The U.S. Court of Appeals for the Fourth Circuit issued a decision this week involving a pest control technician (if you live in the Southern half of the United States, you are probably on a first-name basis with these people and can’t live without them).

"No sign of cockroaches, but I put some traps under the sink. Have a great day!" (Sigh. My hero.)

For those of you who live in less “buggy” parts of the country, pest control technicians come to your building on a regular schedule, go through the indoors to treat the corners and crevices for bugs and rodents (and, maybe in the Southwest, gila monsters?), including the upstairs and the basement and crawl space, and then go outside and treat the yard or grounds, as well as the exterior of the building itself.

And that's just the preventive work. Sometimes they have to trap, kill, and dispose of actual critters infesting the building.

Our plaintiff (we'll call him "Abe") was a pest control technician, but he had an on-the-job injury. He had to go out on workers’ compensation leave, and his doctors finally said that he should not return to his job, ever.

But the doctors said Abe could perform less-physically-demanding work, and the employer had some. One position was in customer service, which was essentially an office job and well within Abe's restrictions. The other job was sales representative, which may have been more physically strenuous than the customer service position, but Abe said he could have performed in either position.

Hang on, Robin -- Abe probably wasn’t qualified for these other positions.

That would be a great point, except that Abe's own supervisor admitted that there was no reason he couldn’t have done the customer service (office) position. The sales position was arguably a closer call because of the physical demands.

Anyway, Abe diligently followed up with his supervisor about coming back to work in a “lighter” position. It sounds like the supervisor pretty much ignored him, and they let him stay out on medical leave. A couple of customer service and sales rep vacancies were filled by other people.

Abe settled his workers' compensation case and then resigned. And sued under the Americans with Disabilities Act and for wrongful termination.

A federal judge in Maryland granted summary judgment to the employer on all claims. As far as Abe’s failure-to-accommodate claim, the judge said that the employer had accommodated him by giving him an extended leave of absence.

"Your honor, are you sure about that?"

Abe appealed, and a three-judge panel of the Fourth Circuit said that the ADA claim should go to a jury. (One of the judges argued that summary judgment was proper as to the sales representative position, but he agreed with the others on the customer service position.)

Four ways this employer went wrong.

Allegedly.

No. 1: Management was unresponsive. The employer did not meaningfully respond to Abe's requests to return to work. The supervisor told Abe that he would refer Abe's questions to “risk management,” but later testified that he didn’t remember whether he had ever actually followed through. Human Resources was apparently contacted, but there is no indication that HR did anything, either.

No. 2: Reassignment was not considered by the employer (even though Abe had suggested it). The employer apparently viewed the situation as “binary”: Either Abe could return to his regular job (which he couldn’t), or he could stay out on leave. But reassignment to an appropriate vacant position is a form of reasonable accommodation, and it should have been considered.

Ewwwwww . . . 

No. 3: The employer didn’t follow the EEOC’s reasonable accommodation priority. If the employer had considered the reasonable accommodation “priority” recommended several years ago by the U.S. Equal Employment Opportunity Commission, this might have been resolved to everyone’s satisfaction. The EEOC priority is as follows:

• First, try to accommodate the employee in his or her regular job. If that's not possible . . .
• Try to reassign the employee to a different job that is similar to the employee’s old job, in terms of working conditions, hours, duties, pay, prestige, and all the rest. If that's not possible . . .
• Try to reassign the employee to any job for which the employee is qualified and that he is medically able to perform. If that's not possible . . .
• Place the employee on medical leave. If the employee has exhausted all leaves required by law (including leave under the Family and Medical Leave Act and any applicable state leave laws) and available through the employer’s regular policies, including workers’ compensation and short-term disability . . .
• Terminate the employee.

Notice how medical leave is the second-to-last resort before termination. (Exceptions apply if the employee wants to go on leave at an earlier point.)

The court's decision doesn't mention the EEOC priority, but following it is a good way for employers to make sure they're handling accommodation requests properly.

According to the court, indefinite medical leave is an appropriate accommodation only if (1) the employee is expected to fully recover and be able to return to the original job, or (2) the employee cannot return to the original job, and there are no other jobs that the employee can perform.

No. 4: The employer did not engage in the ADA interactive process. This is big. The “interactive process” is legalese for brainstorming about reasonable accommodations with the employee who has a disability. Abe identified two positions for possible reassignment. There was no dispute that one of the positions (customer service) could have worked and that there were vacancies. And even with the sales representative position, we don’t know for sure that he wasn't able to perform because . . . the employer didn’t engage in the ADA interactive process.

In the Fourth Circuit, failure to engage in the interactive process is not an independent ADA violation, but it is legally risky. If there was an accommodation that could have worked but was not considered or tried because the employer did not engage in the interactive process, then the employer will be legally responsible for failure to accommodate. (In some jurisdictions, failure to engage in the interactive process is an ADA violation in and of itself.)

No. 5 (BONUS): The employer didn't get a release of all claims when it settled Abe's workers' comp case.

What was really going on here?

My speculation is that this employer was tripped up because Abe's injury was covered by workers’ compensation. If he’d had a non-work-related medical condition, I suspect that the employer would have known that the ADA applied and would have properly handled the interactive/reasonable accommodation process.

The employer may also have been confused because Abe always used the term "light duty" rather than "reassignment to an existing position." To many of us, "light duty" means temporary "make-work," not a real job. "Make-work" light duty is common in workers' comp situations, but it may not be a "reasonable" accommodation at all.

In my experience, many employers don’t realize that, even in workers’ comp cases, they need to keep the ADA in mind and consider reasonable accommodations. In consultation with their comp carriers and counsel, and with HR and employment counsel.

Otherwise, the courts might squash them like a bug.

That was awful. I'm sorry.