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Friday, April 22, 2016

Reasonable Accommodation Two Way Street

By: Thomas Eden

Kathleen Huge was an employee at Boeing when she informed the company that she had high functional Autism, ADD, ADHD (also known as of Asperger’s syndrome), and requested multiple accommodations; according to court records. Boeing’s records described the subsequent work restrictions as, “no work requiring social interaction beyond her direct supervisor, job assignments should be repetitive, complex instructions should be broken down into small steps, requiring job expectations to be written and discussed thoroughly with Huge, and limit novel social situations.” Huge presented Boeing with a letter from her doctor describing her condition and requesting that she receive all work instructions in writing. After discussing this accommodation with Huge, Boeing agreed to provide all work instructions in verbal and written form. Boeing then placed Huge on non-occupational medical leave so it could evaluate her condition and determine the feasibility of accommodations.

While she was on leave, Huge, through numerous doctors and legal counsel, requested a number of different and contradictory accommodations, including reversing her previous request for written instructions. She then insisted on a permanent vocational job coach. Huge and her counsel canceled scheduled exams and requested that a personal assistant accompany Huge to the exam. Huge never submitted to the Boeing scheduled independent medical evaluation.

When Huge finally returned from medical leave, she was provided a job coach but spent the majority of her time at work attempting to build a lawsuit against Boeing. When Boeing ultimately terminated Huge for poor performance, after written warnings, she filed suit alleging discrimination, retaliation, and failure to accommodate her disability in violation of the ADA and Washington state law.

After a bench trial by the federal judge without a jury, the court held that Huge’s failure to engage in the interactive process in good faith could defeat her failure to accommodate claim. The judge noted, “the interactive process requires communication and good-faith exploration of possible accommodations between employer and employee and neither side can delay or obstruct the process.” In contrast, the judge noted Boeing’s patient and thoughtful approach to Huge’s numerous requests.

Common Sense Counsel: This presents one of the most difficult situations for an employer to manage – attempted accommodation of a disruptive mental health issue. Following these 5 Steps can help keep your eventual breakup out of Court:

1) Adopt legally compliant FMLA, ADA Reasonable Accommodation and Non-FMLA leave policies in your Employee Handbook;

2) Retain a knowledgeable occupational physician to consult with to make individualized assessment fitness for duty determinations;

3) Update all job descriptions to include regular and predictable attendance, ability to work cooperatively with others, etc. as essential job functions;

4) Engage in interactive discussions with your employee by letter, email and in person about expected return to duty date, their physician opinions, fitness for duty upon return, and ability to safely perform; and\

5) Show patience and Document, Document, Document!

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-246-2901. Blog at www.alabamaatwork