Dive Brief:
- Nissan North America Inc. failed to show that it accommodated – and engaged in the interactive process with – an employee who had received a kidney transplant, the 6th U.S. Circuit Court of Appeals said in an Americans with Disabilities Act (ADA) lawsuit (Fisher v. Nissan North America, Inc., No. 18-5847 (6th Cir. Feb. 27, 2020)).
- Michael Fisher sued the automotive manufacturer after he was let go for poor attendance, claiming disability discrimination. Fisher had taken leave for a kidney transplant and, when his leave was about to expire, Nissan's HR manager allegedly warned him that he could not return to work with restrictions. Fisher told his doctor about this and she cleared him to work. However, even though he was given what was believed to be an easier job when he returned to work, Fisher said he found the job to be "10 times harder." Fisher was then granted extended leave, after which he returned to his old job. But, he claimed, his attendance suffered because he was still recovering. Nissan began issuing written warnings and, according to Fisher, he requested a transfer, extra bathroom breaks or a temporary part-time schedule. When those were not granted, he did not return to work and was fired for absenteeism.
- A district court granted summary judgment for Nissan but the appeals court disagreed. The 6th Circuit said Nissan was not entitled to summary judgment on the failure to accommodate claim because a reasonable factfinder could conclude that Fisher was qualified for another position and was not given help in identifying open jobs. The court also found no evidence that Nissan took steps such as proposing counter accommodations that could show good-faith participation in the interactive process. Nissan did not respond to a request for comment.
Dive Insight:
The U.S. Equal Employment Opportunity Commission (EEOC) says that 100% healed policies violate the ADA. In guidance, it explained that employers violate the ADA when they require an employee with a disability to have no medical restrictions if the worker can perform the job with or without reasonable accommodations, unless the employer can demonstrate that providing an accommodation would pose an undue hardship. Federal law generally requires employers with 15 or more employees to provide reasonable accommodations to applicants and employees with disabilities who need them, according to EEOC.
Just last month, Prestige Care Inc., Prestige Senior Living LLC and associates agreed to pay $2 million to settle a disability discrimination suit filed by EEOC. The organization was accused of violating the ADA by requiring employees to perform their job duties without any restrictions and by failing to provide accommodations.
And while the interactive process isn't mandated by the federal law, a failure to engage in it can be evidence of discrimination. Employers can demonstrate good faith in part by undertaking and thoroughly documenting their engagement in the interactive process with employees, sources previously told HR Dive.