We know that the Americans with Disabilities Act (ADA) can be tricky to navigate for employers. And as the recent court case of Dawson v. Akal Security, Inc., shows, it’s easy to make missteps that result in denying an employee’s right to the interactive process, even if that isn’t the intention.
Larry Dawson was employed as an armed security guard for Akal Security, Inc., which offers 24/7 security services to its customers. Akal has 3 shifts to cover the 24-hour period: day, graveyard (overnight), and swing (mid-afternoon to late evening). Mr. Dawson was hired as a “floater,” working different shifts depending on the need. After being assigned to the graveyard shift for one night, Mr. Dawson quickly realized, and subsequently reported to his employer, that he was unable to work that shift due to his inability to sleep during the day.
At first Akal placed the employee on paid administrative leave while a fitness for duty evaluation was performed to address his request for a sleep disorder accommodation. However, that paid leave only lasted a few days before Akal moved Mr. Dawson to an unpaid administrative leave, also for a fitness for duty evaluation. But this time the reason was to ensure that his sleep disorder didn’t pose a threat to his coworkers, clients, or himself. Ultimately, after the fitness for duty evaluation was completed, and after having been on unpaid leave for close to 2 months, Mr. Dawson was granted an accommodation that allowed him to work the day or swing shift, but not the graveyard shift.
At this point, you might be thinking, “What’s the problem? Akal engaged in the interactive process with the employee, granted him an accommodation, and Mr. Dawson returned to work.” This is where the plot thickens. A few months after his return to work, Mr. Dawson filed a Charge of Discrimination with the Arizona Attorney General’s Office, Civil Rights Division, and the Equal Employment Opportunity Commission (EEOC). He claimed that by forcing him to take an unpaid leave of absence, Akal discriminated against him for being disabled, and then retaliated against him for requesting an accommodation. Although the district court that first heard the case sided with Akal, Mr. Dawson prevailed on appeal after more evidence was presented.
It turns out that Akal made a few mistakes. Forcing Mr. Dawson to take an unpaid leave while Akal performed the interactive process, in the court’s opinion, equaled a failure to engage in the interactive process. Had the leave been brief instead of lasting 2 months, or had it been paid the entire time, the outcome might have been different for Akal. The court concluded that unpaid leave can be considered an adverse action, especially when not requested by the employee. Furthermore, the court’s opinion was that Akal provided no reason for shifting Mr. Dawson from paid to unpaid leave beyond needing to confirm, via a fitness for duty evaluation, that Mr. Dawson posed no threat to other employees, clients, or himself. This action, the court found, could in fact be considered discrimination and retaliation against Mr. Dawson for his disability and accommodation request.
More troubling details were brought to light during the appeal proceedings. According to court documents, shortly before placing the employee on unpaid leave, Akal instructed Mr. Dawson to either work the graveyard shift as scheduled or risk being fired. There’s no question that this was a violation of Mr. Dawson’s rights under ADA. In addition, the court learned that although Mr. Dawson presented documentation from his health care provider certifying that he could return to work full-duty (as long as he didn’t work the graveyard shift), he was not permitted to return from his unpaid leave.
What’s the lesson here? We’ve said it before, and we’ll say it again: Follow the interactive process. Placing an employee on leave for an extended period of time while awaiting documentation usually isn’t enough, especially when the employee has offered up alternate documentation that certifies his/her ability to work. Engaging in the interactive process with the employee – through conversation, exchange of information, and other forms of communication – must be a continuous and time-sensitive effort, not a one-time event.
For more information on how employers can effectively engage in the interactive process, refer to our white paper here: “Today’s Multi-Million Dollar Question: When Must an Employer Provide Leave as an ADA Reasonable Accommodation?” And remember that ReedGroup offers a variety of services designed to help you with managing ADA leave and accommodations.