Firing of worker with flesh-eating bacteria didn't violate ADA

Dive Brief:

A Minnesota city did not violate the Americans with Disabilities Act (ADA) when it offered an employee a lower paying job or a severance package after he took extensive leave to recover from a disease commonly called "flesh-eating" bacteria, the 8th U.S. Circuit Court of Appeals has ruled (Brunckhorst v. City of Oak Park Heights, No. 17-3238 (8th Cir. Feb. 4, 2019)).
Gary Brunckhorst, who worked as the city's accountant and payroll technician, alleged in a lawsuit that his employer violated the ADA and state law because it did not offer a reasonable accommodation and did not engage in the interactive process before terminating him because of his disability. Furthermore, Brunckhorst argued that the city retaliated against him after he complained of discrimination. A district court granted summary judgment for the city, and the 8th Circuit affirmed.
Noting that the city had been communicating with Brunckhorst for months regarding his return to work, the court said there was no evidence that the city had engaged in anything other than a good-faith dialogue. The court also pointed out that the city was not obligated to assign Brunckhorst to his original job, as it had since been absorbed by other employees.

Dive Insight:

The ADA requires that employers make reasonable accommodations for workers with disabilities, so long as they don't create an undue hardship for the employer. Accommodations can include reassignment, as the employer offered in Brunckhorst. The plaintiff's original position no longer existed, its duties having been absorbed by employees covering for his absence. The employer did, however, offer him a reassignment for which he was qualified.

And as the U.S. Equal Employment Opportunity Commission notes in its reasonable accommodation guidance, equal reassignment is preferable, but not mandatory. "If there is no vacant equivalent position, the employer must reassign the employee to a vacant lower level position for which the individual is qualified," it says. And, "reassignment does not include giving an employee a promotion."

Moreover, the ADA does not require — at least not technically — employers to engage in an interactive process to determine effective accommodations for workers with disabilities, but it does favor those that act in good faith. This process begins when an employee expresses a need, according to David K. Fram, director of ADA and EEO services for the National Employment Law Institute. Once this need has been revealed, it's important that managers and supervisors respond swiftly, asking what they can do to help.

In this instance, the employer earned a gold star in the form of summary judgment for its interactive process; the appeals court also noted that there was no dispute as to the city's good-faith participation in the process. Brunckhorst and the employer communicated for nearly a year as he used up his paid leave, went on unpaid leave and sought more unpaid leave as he recuperated.

The case's fact pattern may serve as a road map. Employers often impede the interactive process is by ignoring or failing to recognize requests for accommodation, Fram previously told HR Dive in an interview. "Sometimes the supervisor just doesn't like the employee and doesn't want to help the employee," he said. "I advise employers to bend over backwards to help somebody who is saying, 'I need some help' for something that might possibly be a disability, whether or not you like the person."