Wednesday, April 12, 2017

Conditioning Rehire on Withdrawal of EEOC Charge May Be Adverse Action

Employers are often faced with difficult questions regarding what to do with an employee who has been on extended leave for a medical condition.  Such extended leaves can take many forms.  Employees can be on leave for a personal illness or injury that results in FMLA leave and sick leave use.  They can also be out on workers compensation which may also involve FMLA and potentially an unpaid leave of absence to ultimately recover from their disabling condition.

Navigating the many different types of leaves available to sick or injured employees is difficult enough.  But after the leave ends, many employers think that they are done.  If the employee can’t come back to work without restrictions, then they are terminated.  Unfortunately, it’s not that simple.  Once all traditional leaves are exhausted (FMLA, vacation, sick, personal, unpaid etc.)employers must then consider whether or not the employee can return to work and perform all of the essential functions of their position either with or without a reasonable accommodation.  In other words, the employer must engage with the employee, in good faith, in the ADA interactive process.

As one company found out in a recent case, the failure to return an employee who could work with reasonable accommodations can be costly.  In Vasquez v. Board of Education for School District U-46, the court addressed several important issues for employers and provided guidance for handling these difficult cases.

In Vasquez, the employee had been out of work as a result of an approved workers compensation leave.  She attempted to return to work on January 7, 2012 with restrictions from her doctor.  The district told her that district policy did not allow employees to work with restrictions.  The employee went back on workers compensation leave and began a one year leave of absence.  The district failed to inform the employee that she was being placed on the one year leave of absence.

On April 10, 2012, the employee again attempted to return to work in her position as a bus driver’s assistant with restrictions from her doctor.  The restrictions would not have prevented her from performing the essential functions of her job.  Her employer again denied her attempt to return to work, telling her that she could only return to work without any restrictions.

Finally, the employee attempted to return to work on February 13, 2013, again with restrictions from her doctor that would have allowed her to perform the essential functions of her job.  The employer denied the employee’s return and terminated her employment, informing her that she had exhausted her twelve month leave.  The employee was told that she would be considered for rehire, but only if she could produce a physicians release to full duty and an updated employment application.

The employee, who was represented by a union, filed a grievance challenging her termination.  During negotiations to resolve the grievance, the employee filed an EEOC charge.  The employer offered to settle the grievance, but the settlement offer required that the employee be able to work without restrictions and further required her to dismiss and release the EEOC claim.

The district argued that the employee’s ADA retaliation claim had to be dismissed because conditioning her rehire on withdrawing the EEOC claim was not an adverse employment action since rehire was a discretionary benefit.  The employee responded that, if the court determined that her termination was a violation of the ADA, then she had the right to be rehired and therefore the decision to rehire would not be discretionary.

Ultimately, the court held that it could not make a final determination on whether or not the required withdrawal of the EEOC claim was an adverse employment action until it was determined whether or not the employer violated the ADA.  Therefore the case was allowed to proceed to discovery.

The bottom line here is that if an employee’s rights under the ADA have been violated, conditioning rehire on withdrawal of an EEOC charge would be unlawful.  On the other hand, the court seems to indicate that if an employee was unable to perform the essential functions of their position either with or without a reasonable accommodation, which would render the decision to rehire entirely discretionary, it would not be unlawful to condition rehire on the withdrawal of an EEOC claim.  We will continue to monitor this case as it progresses and provide additional updates when they become available.