Like the television show, Lost, reading the Connecticut Supreme Court’s decision in Curry v. Allan S. Goodman, Inc. will leave readers with more questions than answers at the end of the day. (For more background on the case, see this prior post.)
Those unanswered and indeed, troubling questions arise from the suggestion by the Connecticut Supreme Court that an employer’s duty to accommodate an employee (and engage in the interactive process) may arise even after the employer has already terminated the employee.
For example, if the employee makes a request for reasonable accommodation after the employee has already been terminated, does the employer have to listen to this request? And more importantly, does the employer then have to reinstate the employee with the new accommodations in place? And what if the request for accommodation comes a month after the employee has already been terminated, must the employer still consider the request? The decision appears to say "yes" to these questions.
In order to understand this, some background facts on the case are needed as described by the Court:
The plaintiff began working as a driver for the defendant, a distributor of wines and liquors, in September, 1986. In that position, the plaintiff had to lift cases of liquor weighing between forty and seventy pounds on and off his truck. On or about August 26, 1998, the plaintiff injured his back during work when lifting a case of liquor. … [He] returned to work in September, 2000, but was restricted by his physician, Charles B. Kime, to working four hours a day, lifting a maximum of fifteen pounds at a time, and avoiding prolonged periods (more than thirty minutes) of sitting or standing. …
When the plaintiff returned to work, the defendant negotiated with the plaintiff’s union and placed him in a night shift position, working the ‘‘split line’’ in the warehouse. Although employees normally bid on these positions every six months on the basis of their seniority, because he was injured, the plaintiff temporarily was given the split line warehouse job pursuant to the agreement between the plaintiff’s union and the defendant. ..
When the defendant first placed the plaintiff on the split line, he was required to do only light duty tasks and was not required to replace empty cases with full cases [part of the job of a night-shift position]. …
[By] March 7, 2001, however, [Plaintiff's physician] indicated that the plaintiff had not improved as expected and that his light duty restriction— ten hours a day with no repetitive bending or lifting of objects more than twenty-five pounds—likely would be ‘‘permanent.’’ …
Subsequently, the plaintiff placed his name on the bid list for a night shift warehouse position. Although the plaintiff attests that he was high enough on the seniority list to qualify for this position, he did not receive the position. The defendant terminated the plaintiff’s employment, informing him by letter dated April 17, 2001, that it had determined that there was no suitable position for him. Approximately two days later, the plaintiff’s attorney sent a letter to one of the defendant’s managers, Richard Conroy, advising him of the defendant’s obligation to provide reasonable accommodation under the law, asking to be provided with a cost-benefit analysis of the decision to terminate the plaintiff, and requesting that the defendant reconsider its termination decision. The record does not reveal that the defendant took further action or reconsidered its decision.
As the Supreme Court recognized, it is up to the employee to initiate the request for a reasonable accommodation, not the employer. Here, the Court found that the employee’s placing his name on a "bid list" for a warehouse position and the letter from the employee’s attorney after the employee was terminated was sufficient to start the request for reasonable accommodation.
In the present case, the plaintiff made an affirmative request to continue working the warehouse night shift in March, 2001. In addition, the plaintiff’s counsel, in his April 19, 2001 letter to the defendant, requested that the defendant: (1) reconsider its decision; (2) provide a cost-benefit analysis supporting its decision to terminate the plaintiff; and (3) continue to grant the plaintiff the accommodation of having another worker assist him when it became necessary to retrieve boxes that weighed more than the plaintiff’s lifting restrictions. These actions satisfy the plaintiff’s burden of initiating the interactive process.
The defendant’s response to this request was merely to reject it. Conroy, the defendant’s manager, stated during his deposition that, upon receiving the letter from the plaintiff’s counsel, he did not reconsider his decision, confer with anyone else, review any records, or conduct any investigation or cost-benefit analysis of the hardship that the proposed accommodation would cause the defendant. The record reflects no effort by Conroy or any other representative of the defendant to contact the plaintiff or his counsel to engage in any additional, meaningful discussion. We conclude that this response is clearly not the dialogue envisioned by the interactive reasonable accommodation process and the defendant’s duty of good faith compliance.
From an employer’s perspective, this is a disturbing because it seems to suggest that an employer’s obligations to provide a reasonable accommodation continues after an employee has already been terminated. Moreover, it suggests that "demand letters" (in which an attorney demands that the employer take certain action, like paying severance or reinstating the employee) can also be a requests for reasonable accommodation.
In addition, this decision suggests that even though the employee may not make a reasonable accommodation while employed (and only applies to be considered for a position with the company without explanation), the employer must still consider any request by the employee made after the employee was terminated.
It is unclear whether the employer will be filing a motion for rehearing in the case to rule on this issue. But if left unchallenged, this part of the Court’s decision could be the real legacy of the case and set the stage for lots of demand letters for disabled workers even after they’ve already been fired.