Is inability to work a particular job because of stress a disability?

Employees frequently complain that they suffer stress symptoms from work. A supervisor makes an employee feel anxious. Dealing with customers all day gives another employee a headache. Working the night shift disrupts the digestive system. In such situations, it is not uncommon for the employee's doctor to write a "work restriction" that the employee not be placed in situations that cause stress. "Jack is not to have any contact with Supervisor X." "Jill must not be assigned to the night shift." "Brooke should not be given any assignments that cause stress." If the employer does not follow the doctor's instructions, and gets sued, one of the issues will be whether the employee has a disability that must be accommodated.

The Third District of the California Court of Appeal has ruled that an inability to work under a particular supervisor because of anxiety and stress related to the supervisor's standard oversight of job performance was not a disability. In Higgins-Williams v. Sutter Medical Foundation, Case No. C073677 (May 26, 2015), a clinical assistant told her doctor that she was stressed because of interactions at work with human resources and her manager. The doctor diagnosed adjustment disorder with anxiety, and stated that she could perform her job with no restrictions if she were transferred to a different department under a different manager. The Court of Appeal affirmed summary judgment for the employer on the employee's disability claims because she could not prove that she had a disability.

The Third District relied on Hobson v. Raychem Corp. (1999) 73 Cal.App.4th 614, which reached a similar result in a disability case brought by an employee who claimed that she was stressed out by her supervisor. Reliance on Hobson is significant, because that decision had preceded the California Supreme Court's announcement that a disability under California law was a condition that limited a major life activity. See Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019. Before Colmenares, California courts had generally followed the federal substantially limits standard. Further, California had added a provision to the Fair Employment and Housing Act stating that working was a major life activity "regardless of whether the actual or perceived working limitation implicates a particular employment or a class or broad range of employments." Cal. Gov't Code section 12926.1. Higgins-Williams confirms the continuing validity of Hobson despite the changes in the law that have followed. For a recent unpublished decision that applies a similar approach, see Safari v. County of Los Angeles, Case No. B255142 (May 1, 2015).

For a case with some good language for employers under the federal standard see Dewitt v. Carsten, 941 F.Supp. 1232 (D. Ga. 1996):

Plaintiff, like anyone else, would like to hold a job as stress-free as possible. Traditionally, when an employee feels that a job is too stressful, she generally has three options: she first tries to obtain a reassignment with her employer; if that is not successful, she then either finds a less stressful job somewhere else or tries to stick it out with her current position. Plaintiff argues that the ADA provides a fourth option whereby she can insist that her employer transfer her to another position and can further dictate to her employer the one particular job that she will agree to hold, as well as the conditions under which she will perform that job.

Hopefully, in many work situations, the employer is willing and able to find another job more suited to an employee's needs and skills whenever that employee has a job that is causing her to feel stress. An employer, however, is not required to reassign an employee to a less stressful job, absent a legal requirement to do so. This Court agrees with the magistrate judge that plaintiff's particular stress is not a disability that legally mandates the employer to reassign plaintiff or offer her another accommodation.

Does stress from rush hour traffic require an accommodation?

That is the question posed by a disability discrimination complaint filed recently in New Jersey. Andrea DeGerolamo alleges that she suffered from "great anxiety and depression which was especially aggravated by crowded roadways experienced during the heavy traffic of rush hour." According to her complaint, her employer initially accommodated her by allowing her to come in after morning rush hour and to leave before evening rush hour.

The employer, Fulton Financial, removed the case from the state court where it was filed to the United States District Court in Camden. It is captioned DeGerolamo v. Fulton Financial Corp., Case No. 14-cv-03774-JHR-JS.

Unauthorized Aliens May Sue For Discrimination

The California Supreme Court has ruled that unauthorized aliens may sue for discrimination under the Fair Employment and Housing Act. The ruling came in a disability discrimination lawsuit brought by an employee who had used another's social security number and card to verify his employment eligibility. Salas v. Sierra Chemical Co., Case No. S196568 (Cal. Supreme Court 6/26/2014).

Senate Bill 1818 provides: “All protections, rights and remedies available under state law, except any reinstatement remedy prohibited by federal law, are available to all individuals regardless of immigration status who have applied for employment, or who are or who have been employed, in this state.” The provision was enacted into Civil Code section 3339, Government Code section 7285, Health and Safety Code section 24000, and Labor Code section 1171.5.

The Court ruled that the state law was not preempted by federal immigration law, except to the extent it authorizes an award of lost pay damages for any period after the employer's discovery of an employee's ineligibility to work in the United States. The Court also ruled that the unclean hands after acquired evidence documents was not an absolute bar, but only affected the remedy available.

Establishing Essential Functions

Establishing the essential functions or duties of an employee's job is critical for assuring compliance with both the Americans with Disabilities Act and the disability provisions of the California Fair Employment and Housing Act. Both laws protect those employees who are able to perform the essential functions or duties of their jobs with or without a reasonable accommodation. The perils of not paying sufficient attention to defining the essential functions of a job are demonstrated by a recent case from the federal district court in Minnesota, which is described below.

The ADA defines the qualified individuals who are protected from discrimination as those who "with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. For the purposes of this sub chapter, consideration shall be given to the employer’s judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job." 42 U.S.C. section 12111(8).

The EEOC's regulations provide some guidance on what constitutes an essential function: "(1) In general. The term essential functions means the fundamental job duties of the employment position the individual with a disability holds or desires. The term “essential functions” does not include the marginal functions of the position. (2) A job function may be considered essential for any of several reasons, including but not limited to the following: (i) The function may be essential because the reason the position exists is to perform that function; (ii) The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed; and/or (iii) The function may be highly specialized so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function. (3) Evidence of whether a particular function is essential includes, but is not limited to: (i) The employer's judgment as to which functions are essential; (ii) Written job descriptions prepared before advertising or interviewing applicants for the job; (iii) The amount of time spent on the job performing the function; (iv) The consequences of not requiring the incumbent to perform the function; (v) The terms of a collective bargaining agreement; (vi) The work experience of past incumbents in the job; and/or (vii) The current work experience of incumbents in similar jobs. 29 CFR section 1630.2(n).

The FEHA bans discrimination on the basis of mental or physical disability, but "does not prohibit an employer from refusing to hire or discharging an employee with a physical or mental disability, or subject an employer to any legal liability resulting from the refusal to employ or the discharge of an employee with a physical or mental disability, where the employee, because of his or her physical or mental disability, is unable to perform his or her essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger his or her health or safety or the health or safety of others even with reasonable accommodations." Cal. Gov. Code section 12940, subd. (a)(1). The regulations promulgated under the FEHA by the Fair Employment and Housing Commission repeat the EEOC's definition at Cal. Code Regs. tit. ii, section 7293.8(g).

In the case from Minnesota, the plaintiff, the defendant bank's compliance officer, suffered from multiple sclerosis. Because of her condition, she required flexible hours that would allow her to work outside normal bank hours from time to time, but she was able to work a 40-hour work week. The bank discharged her immediately after it received the results of an FDIC examination that found fewer significant violations but more violations overall than in the previous examination. As one of its defenses to her lawsuit under the ADA, the bank claimed that she was unable to perform the essential functions of her job because she could not be present during all normal banking hours. The plaintiff claimed that she could perform some of her functions outside normal banking hours, pointing to the provision of a laptop and the fact that she had been allowed to work at home and outside normal banking hours. In denying summary judgment, the district court specifically noted the lack of any evidence that her essential job functions were established before she began discussions about reasonable accommodations with the bank. See Wandersee v. Farmers State Bank of Hartland, Case No. 10-4159 (D. Minn May 9, 2012).

Although an employer's written job description prepared before a dispute arises will not always be accepted as a proper assessment of essential functions, it will be persuasive, and may tip the balance in the employer's favor. Without such a prior written description of essential functions, the employer will certainly be at the mercy of a jury's after the fact assessment.

Accommodating Mental Disabilities

A recent case from New York provides fodder for a discussion of the scope of an employer's obligation to accommodate an employee's mental disability. A law firm fired one of its attorneys after learning that he attempted to have charges for adult movies and calls to escort services to the firm's clients. The attorney sued for discrimination and failure to accommodate his bipolar disorder. The New York Division of Human Rights awarded him $600,000, but the Appellate Division of the New York Supreme Court tossed out the award. Hazen v. Hill Betts & Nash, LLP, Case No. 104781/10 (N.Y. App. Div. Jan. 5, 2012). "[A] petitioner's disability does not shield him from the consequences of workplace misconduct."

Although the court's conclusion accurately described the circumstances of that case, employers must engage in a more nuanced analysis to avoid liability. For example, employees with mental disabilities that cause them to violate workplace attendance policies may nonetheless be entitled to an accommodation. See Humphrey 
v. Memorial Hospitals Association, 239 F.3d 1128 (9th Cir. 2001) (medical transcriptionist with obsessive-compulsive order that prevented her from getting to work on time might be entitled to work from home or to unpaid time off to bring her disability under control). The EEOC has opined that a schizophrenic warehouse worker who violates a company's conduct toward others and dress policies may be entitled to a pass. See
EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities, No. 30, Example C.

An employer should use the following analysis to determine its responsibilities when dealing with an employee who has violated an employer's workplace conduct standards:

1.  Does the employer have information from which it could reasonably conclude that the employee has a disability? If an employer does not know that an employee has a disability, it cannot be accused of discrimination, and has no obligation to provide a reasonable accommodation. Further, an employer may not even inquire about a possible disability unless it has a reasonable belief, based on objective evidence, that: (1) an employee's ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition.
2. Is the workplace conduct standard job-related for the position in question and consistent with business necessity? The EEOC's opinion that the warehouse worker referred to in its guidelines might be entitled to a pass on the conduct and dress policies was based on its conclusion that those policies were not job-related for a warehouse worker with no customer contact.
3. Is there a reasonable accommodation that would allow the employee to perform the essential functions of his or her job despite the disability? The EEOC Enforcement Guidance gives the following example: A reference librarian frequently loses her temper at work, disrupting the library atmosphere by shouting at patrons and coworkers. After receiving a suspension as the second step in uniform, progressive discipline, she discloses her disability, states that it causes her behavior, and requests a leave of absence for treatment. The employer may discipline her because she violated a conduct standard -- a rule prohibiting disruptive behavior towards patrons and coworkers -- that is job-related for the position in question and consistent with business necessity. The employer, however, must grant her request for a leave of absence as a reasonable accommodation, barring undue hardship, to enable her to meet this conduct standard in the future. See No. 31, Example A.

Earlier posts on the disability laws appeared on 7/10/2011, 6/12/2011, 1/14/2009, 9/14/2008, and 7/20/2008.

Employment Cases on the Supreme Court's Calendar

U.S. Supreme Court Building

The U.S. Supreme Court's new term got under way on October 3, the first Monday in October. Here are the employment cases for which the Court has so far granted review. We will update this posting with developments in these cases and any other employment cases for which review is granted.

Coleman v. Court of Appeals of Maryland, No. 10-1016. On March 20, 2012, the Court ruled that Congress did not abrogated the States' Eleventh Amendment immunity when it included a right to time off for an employee's own serious health condition in the Family and Medical Leave Act. The Fourth Circuit ruled that the Eleventh Amendment barred an FMLA claim against the Maryland Court of Appeals. The case was argued on January 11, 2012. The briefs filed in the case are available at the ABA's Supreme Court Preview site. A transcript of the oral argument is available here.

Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, No. 10-553. On January 12, 2012, the Court ruled that the First Amendment requires a "ministerial" exception to employment discrimination laws, and that the exception barred the claims in the case before it. The Sixth Circuit had ruled that the exception did not bar the teacher's claims under the Americans with Disabilities Act. The case was argued on October 5, 2011. The briefs filed in the case are available at the ABA's Supreme Court Preview site. A transcript of the oral argument is available here.

Knox v. SEIU Local 1000, No. 10-1121. This case clarifies a union's obligations to nonunion public employees who are compelled to pay fair share fees for union representation under Chicago Teachers Union, Local No. 1 v. Hudson, 475 U.S. 292 (1986). On June 21, 2012, the Court ruled that any dues increase that funds political activities must be preceded by notice and an opportunity to object. The Ninth Circuit decision under review is available here. The case was argued on January 10, 2012. The briefs filed in the case are available at the ABA's Supreme Court Preview site. A transcript of the oral argument is available here.

Pacific Operators Offshore, LLP v. Valladolid, No. 10-507. The case concerns compensation for workers injured as a result of operations conducted on the outer continental shelf. On January 12, 2012, the Court affirmed the decision under review, adopting the "substantial nexus" text for determining whether the operative statute applies. The Ninth Circuit decision under review is available here. The case was argued on October 11, 2011. The briefs filed in the case are available at the ABA's Supreme Court Preview site. A transcript of the oral argument is available here.

Roberts v. Sea-Land Services, Inc., No. 10-1399. On March 20, 2012 the Court ruled that an employee is “newly awarded compensation” when he first becomes disabled and thereby becomes statutorily entitled to benefits, no matter whether, or when, a compensation order issues on his behalf, under the Longshore and Harbor Workers Compensation Act. The Ninth Circuit decision under review is available here.The case was argued on January 11, 2012. The briefs filed in the case are available at the ABA's Supreme Court Preview site. A transcript of the oral argument is available here.

UPDATE [10/19/2011]

Elgin v. Department of the Treasury, No. 11-45. On June 11, 2012, the Court ruled that the Civil Service Reform Act establishes the exclusive means for obtaining judicial review for covered employees who challenge covered adverse employment actions. The First Circuit decision under review is reported at 641 F.3d 6 (1st Cir. 2011). The case was argued on February 27, 2012. The briefs filed in the case are available at the ABA's Supreme Court Preview site. A transcript of the oral argument is available here.

UPDATE [11/17/2011]

NFIB v. Sebelius, No. 11-393; Florida v. Department of Health and Human Services, No. 11-400. On June 28, 2012, the Court upheld the individual mandate of the Patient Protection and Affordable Care Act as a tax measure, but struck down the requirement that States join the expansion of Medicaid under threat of losing all Medicaid funding. The Eleventh Circuit decision under review is reported at 648 F.3d 1235 (11th Cir. 2011). For information about the law's anticipated effect on employers, see this analysis from the Rand Corporation and this one from The New England Journal of Medicine. The case was argued over three days: March 26, 27 and 28. The briefs filed in the case are available at the ABA's Supreme Court Preview site. Transcripts of each day's oral arguments are available here.

UPDATE [2/21/2012]

Christopher v. SmithKline Beecham, No. 11-204. On June 18, 2012, the Court ruled that the FLSA's outside salesperson's exemption applies to pharmaceutical sales representatives, who do not sell directly to consumers. The Ninth Circuit decision under review (which applied the exemption to the representatives) is reported at 635 F.3d 383 (9th Cir. 2011). The case was argued on April 16, 2012. The briefs filed in the case are available at the ABA's Supreme Court Preview site.

Disability Claims Can Cost Millions

A recent $20 million EEOC settlement with Verizon illustrates the hazards that the disability laws pose for employers. According to the complaint in EEOC v. Verizon Maryland, Inc., Case No. 11-CV-01832-JKB (D. Md. Jul. 5, 2011), Verizon had a "no fault" attendance policy, which assigned "chargeable absences" to any absence except for certified leave under the Family Medical Leave Act, jury or military duty, death in the immediate family, or excused time without pay. An employee who accumulated sufficient chargeable absences was subject to discipline, up to discharge. The policy did not excuse disabled employees who needed leave as a reasonable accommodation for their disabilities. As a result, according to the complaint, disabled employees were treated unfairly based on their disabilities.

In the consent decree that settled the case, Verizon agreed to pay $20 million to the affected employees, and to implement a new attendance policy, under which it would determine on a case-by-case basis whether an absence should be chargeable. If each of the following is satisfied the absence will not be chargeable: (a) the employee has a mental or physical impairment that substantially limits one or more major life activities of such individual as defined by the ADA; (b) the employee's absence was caused by a disability; (c) the employee requested a period of time off from work due to a disability; (d) the employee's absences have not been unreasonably unpredictable, repeated, frequent or chronic; (e) the employee's absences are not expected to be unreasonably unpredictable, repeated, frequent or chronic; (f) Verizon was able to determine, from the request through the interactive reasonable accommodation process, a definite or reasonably certain period of time off that the employee would need because of a disability; and (g) the employee's need for time off from work as a reasonable accommodation does not pose a significant difficulty or expense for Verizon' s business.

The EEOC settlement came on top of a settlement with the California Department of Fair Employment and Housing based on allegations that its attendance policy led to violations of the California Family Rights Act. Under that settlement agreement, Verizon agreed to pay up to $6 million to California employees affected by the policy.

Claims under the disability laws have increased over the past several years. The EEOC reports the number of disability complaints ranged between 15,000 and 18,000 from 1997 to 2007, and then rose to 19,453 in 2008, 21,451 in 2009 and 25,165 in 2010. A study by the UCLA Law|Rand Center for Law & Public Policy reported that disability complaints rose 69 percent between 1997 and 2008.

Because the disability laws are complex and overlap with workers compensation and leave statutes, managers and human resource professionals should be sure they have a firm grasp of the applicable principles before taking adverse action of any kind against those with disabilities. Here are two rules of thumb:

1. Develop a detailed job description for every job classification in your organization, which explains the essential functions of the job and includes information about the physical requirements.
2. If an issue arises about an employees mental or physical ability to perform the essential functions of the job, obtain a written opinion from a qualified medical professional.

For further information about compliance, consult the EEOC website. If you need legal advice about how to comply with the disability laws, send us an email.

Light Duty Positions May Create Disability Discrimination Liability

A recent case illustrates the risks that employers encounter in placing employees in light duty positions. In Cuiellete v. City of Los Angeles, Case No. B224303, a Los Angeles Police Officer received a 100 percent disability rating in a workers compensation proceeding, but asked to return to work at a desk job in the fugitive warrants unit. The LAPD at first acceded to his request, but fired the officer a few days after he returned, claiming that he was unable to perform all the essential functions of a full duty police officer.

When Cuiellette was fired, the LAPD had a longstanding policy and practice of allowing police officers to perform light duty assignments that did not entail several essential functions of the job, such as making arrests, taking suspects into custody and driving a patrol car in emergency situations. At the time, the LAPD employed about 8.500 police officers, 250 of whom were in permanent light duty positions that would not allow them to work in the field. Therefore, it was not unreasonable for the LAPD to accommodate Cuiellette by assigning him to the desk job on a permanent basis.

The duty of reasonable accommodation does not require employers to create new positions, but does require them to reassign disabled employees to vacant positions for which they are qualified.

Employers may create temporary light duty positions for employees recovering from injuries, without obligating themselves to keep disabled employees in those positions permanently. See Raine v. City of Burbank, 135 Cal.App.4th 1215, 37 Cal.Rptr.3d 899 (2006). In Cuiellette, the light duty positions at the LAPD were not designated as temporary. The evidence was that police officers served in the positions indefinitely.

Pre-Employment Testing

Employers who want good employees who are able to perform their jobs often engage in some form of pre-employment testing -- a typing test, a personality test, a test that measures knowledge needed on the job, and so on. It should come as no surprise that disappointed applicants may challenge such tests as discriminatory.

Disability Law

The federal Americans with Disabilities Act and the California Fair Employment and Housing Act prohibit employers from requiring applicants to undergo medical examinations before an offer of employment is extended. Once the employer has made an offer, it may condition the start of work on submission to a medical examination that tests whether the employee can perform the job. A "medical examination" is a procedure or test that seeks information about an individual's physical or mental impairments and health, including vision tests, blood tests, blood pressure and cholesterol screening, range of motion tests and psychological tests designed to identify mental disorders or impairments. Examples of procedures that are not medical examinations (and are, therefore, allowed at the pre-employment stage) are: testing for illegal drugs, physical agility tests, tests of ability to perform actual job tasks and tests that measure personality traits such as honesty, preferences, and habits. The EEOC has published a guidance that discusses the rules.

Sometimes the distinction between a prohibited and a permitted examination is a fine one. In Karraker v. Rent-A-Center, Inc., 411 F.3d 831 (7th Cir. 2005), the employer had management applicants take the MMPI, a standard psychological test that considers where the subject falls on scales measuring depression, hypochondriasis, hysteria, paranoia and mania. Although the employer argued that it was only concerned with personality traits, the court of appeals ruled that the MMPI was a medical examination because it was designed to reveal mental illness. Read the full opinion here.

Disparate Impact Discrimination

Both Title VII of the Civil Rights Act of 1964 and the California Fair Employment and Housing Act prohibit disparate impact discrimination, which means the use of neutral tests or selection procedures that have the effect of disproportionately excluding persons based on race, color, religion, sex, or national origin or other protected characteristics, where the tests or selection procedures are not job-related and consistent with business necessity.

For example, the EEOC obtained a $3.3 million judgment on behalf of 52 female job applicants not hired because they failed a 7-minute strength test that required them to carry 35-pound weights back and forth, lifting them to heights of 35 and 65 inches. More than 95 percent of male applicants passed, but fewer than 40 percent of female applicants passed. Because the employer did not prove that the test was sufficiently representative of actual job performance in its sausage packing operation, it was liable for disparate impact discrimination. EEOC v. Dial Corp., 469 F.3d 735 (8th Cir. 2006).

In a landmark United States Supreme Court decision, the employer required applicants to have a high school diploma for a certain plant position. That policy disproportionately discriminated against African Americans because their rate of graduation was twelve percent compared to a rate of thirty-four percent for whites. Since the evidence did not establish that the requirement was significantly related to successful job performance, the employer was liable for disparate impact discrimination. Griggs v. Duke Power Co., 401 U.S. 424 (1971).

What You Should Do

1. Prepare a detailed job description before you begin the hiring process for any position.

2. If you are concerned about physical or mental requirements of a job, make those the subject of post-offer testing. Do not attempt to screen out applicants yourself based on strength or personality tests, Even though such tests may be permissible, it would be very easy for a disappointed applicant to claim that your testing had crossed over into an impermissible medical examination.

3. If you wish to use tests of knowledge or intelligence, or academic qualifications to screen out applicants, have a professional validate your screening criteria. If challenged, you will have to prove that the criteria are significantly related to successful job performance.

Disability Pitfalls for Employers

A recent decision from the California Court of Appeal in San Francisco demonstrates how hard employers must work to avoid liability under the disability discrimination laws. The Court ruled that the plaintiff employee was entitled to a trial on her disability claims because there was some evidence that the employer had not tried hard enough to accommodate her disability. Nadaf-Rahrov v. Neiman Marcus Group, Inc., Case No. A114016 (Cal. Ct. App. 9/10/2008).


Facts


Forough Nadaf-Rahrov was a clothes fitter for Neiman Marcus. She developed carpal tunnel syndrome in both hands and osteoarthritis in her fingers. Her doctor certified that she was unable to perform work of any kind, and she went out on Family and Medical Leave Act leave. After she exhausted her FMLA entitlement, Neiman Marcus extended her leave, and asked her to call when she was released to return to work. That would permit Neiman Marcus could look for alternative vacant positions in the San Francisco store where she worked.

On June 28, 2004, Nadaf-Rahrov's doctor wrote that she "may be able to return to work on 8/19/04 but not in her previous position." On July 14, 2004, Neiman Marcus terminated her employment. The human resources manager noted that Nadaf-Rahrov did not have a release from her doctor to perform work of any kind, and believed that the employee's condition was unlikely to change in the near future.


Analysis


The trial court granted summary judgment dismissing Nadaf-Rahrov's claims for (1) disability discrimination, (2) failure to accommodate and (3) failure to engage in an interactive process, but the Court of Appeal reversed.


1. The disability discrimination laws prohibit an employer from discharging a disabled employee who is able to perform the essential functions of her existing position, or of any vacant position for which she is qualified. There was a disputed issue of fact because the employee's doctor said his initial certification only meant that she could not do her existing job, and was not meant to foreclose all work. There was evidence of vacant positions that only required office work.


2. With respect to accommodation, the Court adopted the federal rule that Nadaf-Rahrov had the burden of proving that she could perform the essential functions of an available job with accommodation. It disagreed with a contrary rule adopted in Bagatti v. Department of Rehabilitation, 97 Cal. App. 4th 344 (2002).


3. The Court also adopted the federal rule on the interactive process claim, which requires the employee to prove that the employer did not interact in good faith and that a reasonable accommodation was available. There was evidence from which a jury could conclude that Neiman Marcus caused a breakdown in the interactive process by refusing to provide information about available positions that might have assisted Nadaf-Rahrov in preparing a list of her work-related medical restrictions.


What The Case Means For Employers

This case highlights the importance of care and precise documentation when dealing with disability issues. Employers should

1. Make sure that there is an up-to-date written job description for every position.

2. When an employee says that a physical or mental condition is making it difficult to perform his or her job, provide as much information as possible about vacant positions.

3. Insist on precise medical opinion about the employee's ability to perform the essential functions of vacant positions.

4. Rather than discharge an employee who has been out on medical leave for an extended period of time, let the employee remain in a leave status, and address the issue of whether there is a job available when a doctor certifies the employee's ability to return to work.