The need to consider Americans with Disabilities Act (ADA) accommodations can happen at any time during the employment relationship. Generally, an employee will ask for an accommodation before problems with performance emerge. Sometimes, however, an employee decides to notify you of the need for an accommodation when an investigation is underway, when they are being disciplined, or worse yet, when they are told their employment is terminated. If an employee you were in the process of disciplining told you they needed an accommodation, what would you do?
EEOC Guidance Points To Timing Dangers
According to guidance issued by the Equal Employment Opportunity Commission (EEOC), “Although the ADA does not require employees to ask for an accommodation at a specific time, the timing of a request for reasonable accommodation is important because an employer does not have to rescind discipline (including a termination) or an evaluation warranted by poor performance.” However, as demonstrated by the recent federal court decision in Castaneda v. Board of Education of the City of Chicago, you must be mindful of timing when you find out about medical conditions or the need for an accommodation at such critical junctures to determine how best to handle the situation.
Recent Federal Court Case Demonstrates Dangers
In the Castaneda case, the school district fired a second-grade teacher based on performance. Specifically, during the 2014-2015 school year, Saul Castaneda began leaving his students alone in the classroom, standing on his desk staring out the window talking about clouds, and telling other teachers that he was not instructing his students because his students “should be playing; to learn through play…” In January 2015, Castaneda met with the principal and assistant principal to discuss his performance and classroom management. A week later, the vice principal did a spot-check of Castaneda’s classroom and saw that his students were playing with cars or watching YouTube videos on the computer while Castaneda sat at his computer with his back to the students. Castaneda also began showing up late for work and failed to provide required data to the school to show student benchmarks.
Because of the continued decline in his performance, the principal decided not to renew Castaneda’s contract. Following that decision, two children were injured in Castaneda’s classroom. Given the injuries and continued complaints by teachers and parents about Castaneda, the Board officer notified Castaneda on April 23 that an investigatory conference would be held on May 6. At that conference, the Board notified him that a recommendation for termination rather than non-renewal of his contract would be forthcoming. At that same meeting, Castaneda disclosed (for the first time) that he would be seeking leave for his “mental state.” Immediately following the conference, Castaneda contacted the third-party administrator (TPA) and sought short-term disability and FMLA leave.
On May 7, 2015, the TPA conditionally approved Castaneda for short-term leave. That same day, the TPA emailed the principal and informed him that Castaneda had applied for short-term disability, but did not provide any details about the nature of the disability. The next day, Castaneda was diagnosed with “Schizophrenia, paranoid type” ; his doctor submitted a form to the TPA informing it that Castaneda was unable to return to work until September 1. On May 11, the Board informed the TPA that Castaneda had been suspended and was not eligible for leave; the TPA then informed Castaneda that his claim was denied because he was an ineligible employee. On June 26, 2015, the Board approved Castaneda’s termination. Castaneda subsequently filed suit alleging, among other things, that the Board discriminated against him in violation of the ADA by failing to reasonably accommodate him and firing him because of his disability.
The crux of the ADA claim focused on when the Board was on notice of Castaneda’s disability. The Board claimed that it did not learn of Castaneda’s disability until after it had already decided not to renew his employment. Since the Board was not aware of Castaneda’s disability at the time of the critical decision, it argued that it could not have terminated him because of his disability. Castaneda argued that it only mattered that the Board knew of his disability when it definitively terminated him in June.
Court Decision Raises Red Flags For Employers
Several months ago, an Illinois federal court ruled in Castaneda’s favor and permitted his claim to proceed to trial. The court explained that for purposes of an employer’s notice of an employee’s disability under the ADA, “termination occurs when the employer shows, by acts or words, clear intention to dispense with the employee’s services.” Further, the court explained that “the fact that an employer learns of an employee’s disability only after deciding to terminate him, or even after taking concrete steps in the termination process (such as beginning a termination investigation, formally recommending termination, or suspending an employee pending termination), does not, as the Board contends, absolve the employer of liability for discrimination under the ADA.” Instead, the court said it “must look to what the employer knows when the employee is actually terminated.”
The court found that, although Castaneda was not informed of the final “unequivocal” termination decision until June 26, 2015, the Board knew well before then that Castaneda had applied for short-term disability and FMLA leave. The court held that it would be up to a jury to decide whether the Board terminated him because of poor performance and misconduct or his disability. This ruling confirms that employers must be cautious when handling disability issues raised by employees during termination and disciplinary proceedings.
Although you can wait and see whether an employee raises a disability issue during the investigative or disciplinary process, if the facts of a situation are such that you would reasonably perceive the person as disabled under the ADA, then you should act accordingly. Remember the ADA provides protection to individuals who are perceived as disabled. So you should not fear proactively addressing the potential for an ADA issue. The manner of doing so should be discussed with legal counsel to ensure it is compliant with the law.
If the circumstances in no way suggest that there is a potential for an ADA issue but the employee claims to be disabled or requests an accommodation, it is important to stop the process to obtain legal review and a suggested course of action. In some cases, you will be able to proceed with the disciplinary action. Other situations may require taking a few steps back to reassess the facts, potentially engage in the ADA interactive process, and determine whether an alternate means of addressing the issues is legally necessary.
Once you determine the path forward, the timing and manner of notification should be considered to maximize legal defensibility of the decision. Keep in mind that you may have various sources notifying the employee of different aspects of the situation (e.g., leave decisions from a TPA, investigatory interviews with human resources, disciplinary recommendations from the superintendent, or decisions from a Board). All of these must be coordinated to ensure consistent messaging.
The key to handling ADA issues being sprung upon you during disciplinary investigations is to slow down, gather information, consult with your attorney, and determine how to handle the situation with the new information. Remember, the employee may have done you a big favor in letting you know about the potential ADA issues before you make a decision; while it might have otherwise resulted in an ADA challenge, advance warning could provide you the opportunity to build a solid legal defense well before any lawsuit is filed.