The Connecticut Appellate Court today released an important disability discrimination decision that gives employers some support for employees who struggle with employees who ask for “accommodations” for an indefinite leave for a medical condition.

The case ostensibly addresses the request for “indefinite leave” which I’ve previously talked about it in prior posts.

But the case boils down to a familiar set of facts for employers. An employee who one day says, “I need to take 30 days off for a medical condition” and leaves the employer to twist without further response. As explained by the court:

The plaintiff informed the defendant that she would be taking a leave of absence, did not provide the defendant with any time frame for her return, and did not respond to the defendant’s subsequent attempts to contact her regarding her request for leave. The plaintiff effectively asked the defendant ‘‘to hold [her] position open indefinitely while [she] attempt[ed] to recover. . . .’’

Under these circumstances, the court said that the Plaintiff cannot establish even a prima facie case of discrimination because she cannot show that she “requested a reasonable accommodation that enabled her to perform the essential functions of the job”.

In doing so, the state court reviewed federal law and noted that “[R]easonable accommodation does not require [an employer] to wait indefinitely
for [the employee’s] medical conditions to be corrected . . . .’’

In this particular case, the court said, the plaintiff, prior to her departure, informed her supervisor that she would be taking leave for ‘‘over thirty days depending on my lung condition . . . .’’  At a subsequent deposition, the court went on to say, the plaintiff was asked, with respect to her request for leave, that ‘‘you didn’t know how long you were going to be out, correct?’’ The plaintiff responded, ‘‘[c]orrect.’’

The forms submitted by the employee at the time were confusing and the Plaintiff did not respond after requests by certified and regular mail by the employer for more information.  When the employee was told to submit information by a date certain and did not do so, the employer just went ahead and fired her. The court upheld that termination.

For employers, the case offers some helpful reminders:

  • Reasonable accommodation is an interactive process. So long as the employer holds up its end, courts will be more inclined to support the employer in the end.
  • Seeking medical documentation from employees regarding their requested leaves is both necessary and essential to defending a claim where the documentation is vague.  Don’t hesitate to followup and set firm deadlines to the employee to provide the information.
  • As always, seek legal counsel to help navigate through this and work through any issues regarding termination.

Employers may feel like anti-discrimination laws are rigid, but there is built-in flexibility for employers if they know where to look.

The case, Thomson v. Department of Social Services, can be downloaded here. 

A bill which would allow individuals with certain medical conditions access to private employee restrooms in retail establishments was reported out of the Legislative Commissioner’s Office and approved by various committees on Tuesday.

House Bill 6328 (download here) states that "Any retail establishment that has a restroom for employee use, which typically does not permit customer access to such employee restroom, shall permit a customer to use the employee restroom during normal business hours if the restroom is maintained in a reasonably safe manner."

But the bill also requires that four other conditions to be met too: 

(1) The customer requesting access to the employee restroom presents written evidence, issued by a licensed health care provider, that documents that the customer suffers from an eligible medical condition;

(2) A public restroom is not immediately accessible to the customer;

(3) At the time that the request for access to the employee restroom is made, three or more employees of the retail establishment are working; and

(4) The employee restroom is located in an area of the retail establishment that does not present an obvious risk to the health or safety of the customer or an obvious security risk to the retail establishment.

The bill moves on to the House floor where, according to the Associated Press, some legislators have expressed reservations about it.

The bill is obviously well-intentioned. Those with conditions like Crohn’s disease may have the sudden onset of the need to use the restroom and its a serious and genuine condition.(You can view the Crohn’s & Colitis Foundation of America website here, which has some very helpful information.  That organization even offers members the opportunity to print cards that state the person has a medical condition that requires you to use the bathroom urgently.) And for employers, being flexible in your bathroom access may win you a few more customers in the long-term. 

So, while this is one of those bills that pops up from time to time that may be very well meaning, it would create yet another series of regulations that employers would need to regulate.   All the exceptions of the bill only add to the disruptive nature of the bill.  Can you imagine an employer trying to figure out (with a customer standing there) whether the business meets various exceptions on the fly?  And you can imagine other issues that might come up such as what about allowing families with small kids the same sort of access?

2009 is shaping up to be among the busiest years in a decade for employers. This is just another bill to be on the lookout for as the session winds up in the next month or so.