Mr. Mavros

Hospitality Law

The Ever Present Threat of a Disability Discrimination Lawsuit

By John Mavros, Attorney at Law, Partner, Fisher & Phillips, LLP

Co-authored by Jenna Warden, Associate at Fisher & Phillips, LLP

Given the increasing number of disability discrimination lawsuits, it is imperative that employers know and understand an employee's rights to leave and reasonable accommodation when injured or disabled. A workers compensation injury is not only covered by rules in the workers compensation system, but is typically also governed by requirements, obligations, and limitations under other important statutes.

There are three distinct areas of law that have very different purposes. Under the Family Medical Leave Act, an employee is afforded 12 weeks of job protected leave for a "serious health condition." The Americans with Disabilities Act prohibits disability discrimination requiring an employer to reasonably accommodate a "disability." In addition, an employer is obligated to maintain workers compensation insurance to compensate employees for work related injuries. Of course, an employer must not give any impression that they are retaliating against an employee for exercising any of the above rights.

Know the Rules:

1. Family Medical Leave Act ("FMLA")

The FMLA is concerned with providing a minimum level of unpaid,job-protected leave to eligible employees. It protects those employees from adverse treatment because of the need for leave. The FMLA is largely known for permitting an employee to take leave for the birth or adoption of, and in order to care for, a child. However, the FMLA also permits leave for the employee's own "serious health condition."

An employee is eligible for leave under the FMLA if he or she has worked for the employer for at least 12 months, has worked for the employer at least 1,250 hours during the 12 consecutive preceding months, and works at a work-site where there are at least 50 employees within a 75-mile radius. The FMLA provides up to 12 weeks of unpaid leave when the leave is due to an employee's health condition.

The FMLA also requires a covered employer to grant an employee intermittent leave or a reduced work schedule when such leave is "medically necessary" for the employee's own serious health condition. In this situation, the employer can temporarily switch the employee to an alternative position, butonly if the employer can clearly demonstrate that recurring temporary leaves are not feasible. The employer cannot reduce the employee's pay or benefits under the FMLA. When an employee returns from FMLA leave, he or she must be reinstated to the same or an "equivalent position" with equivalent benefits.

An employee who exhausts their FMLA leave no longer has job protection under the FMLA, but the employee may still be protected by other laws including the ADA, workers compensation, and other state laws. Accordingly, you should consult experienced employment counsel before terminating an employee after exhausting their 12 weeks of FMLA leave.

In order to curtail later allegations of employer disability discrimination, when an employee has a serious health condition of which the employer is aware, the employer should provisionally designate any medical leave as FMLA protected. The employee must be made aware that FMLA protection is available and have the opportunity to take advantage of the same. All communication should be confirmed in writing.

2. Americans with Disabilities Act ("ADA")

Under the ADA, employers are required to reasonably accommodate a qualified individual with a disability. "Disability" is defined as "a physical or mental impairment that substantially limits one or more major life activities," a person who has "a record of such an impairment," or a person who is perceived by others as having such an impairment. The disability must impair major life activities including caring for oneself, seeing, hearing, eating, sleeping, walking, standing, speaking, or breathing.

Unlike the FMLA, the ADA emphasizes what an employee is capable of doing asopposed to the employee's need for leave. Further, there is no length of service requirement under the ADA so any employee may request a reasonable accommodation.

The ADA requires an employer to reasonably accommodate a qualified individual which may include reconfiguring access to facilities, changing work assignments or schedules, and/or providing special equipment. It may also include allowing an employee a reasonable leave of absence due to the disability. Once an employer becomes aware of a need for accommodation, the employer has a duty to initiate and engage in an interactive process to accommodate the disability. While employers need not provide the accommodation that the employee prefers, all employers must thoroughly document each step of the interactive process. If it cannot accommodate the employee's request, alternative accommodations should be provided, if applicable, or at the very least, documentation showing what other alternatives were explored.

If an employer can demonstrate that the requested accommodation poses an "undue hardship" such as significant cost or operational difficulty, then an employer may not need to accommodate the employee's disability. However, this is a high standard and proving an "undue hardship" will require clear and specific evidence to support it.

3. Worker's Compensation

The worker's compensation system provides financial support for employees when an employee has a work-related injury. It provides medical benefits and compensation for lost earnings. Unlike the FMLA and the ADA, its focus is on the nature of the employee's specific injury and the extent (or percentage) of his or her disability. It does not provide any additional protections to employees. However, employers must take care not to terminate an employee after a workers compensation claim is filed unless it is well-supported by documentary evidence. For example, in California, employees can file a claim before the Worker's Compensation Appeals Board alleging that they were retaliated against for filing a workers compensation claim. Should the employee succeed, he or she could be awarded a $10,000 penalty plus lost wages and/or reinstatement.

What to do When…

The above laws are particularly important for the hotel industry given a typically large staff in a variety of positions. Consider the following hypothetical: a housekeeper is vacuuming a guest's room when she trips on the cord falling and breaking her ankle. The housekeeper has worked for the hotel for two years as a full time employee. The hotel employs more than 50 persons.

  • Does the FMLA Cover it? - Yes, the housekeeper's broken ankle will be considered a "serious health condition." The hotel employs more than 50 persons and the housekeeper has worked for the hotel for the requisite period of time. The housekeeper will be entitled to take 12 weeks unpaid leave under the FMLA, should she elect to do so. The hotel should provide the employer with FMLA paperwork as soon after the injury as possible to begin the 12-week leave clock.

  • Does the ADA Cover It? - Yes, if the housekeeper's broken ankle affects her major life activities, it will be considered a disability under the ADA. Absent undue hardship, the hotel is required to reasonably accommodate her which may include altering her work assignments, providing different equipment, or allowing reasonable time off work. This reasonable accommodation obligation continues even after the 12 week FMLA period expires.

  • Does Worker's Compensation Cover It? - Yes, the housekeeper was injured on the job and is therefore entitled to worker's compensation medical benefits for the time she misses work as a result of the injury. Once cleared by the worker's compensation physician, the housekeeper may return to work on light or full duty potentially covered by both the FMLA and the ADA.

Consider another hypothetical: a hotel concierge becomes paralyzed and confined to a wheelchair in a non-work-related accident. The concierge has worked for the hotel for three years as a part time employee working 1,000 hours per year. The hotel employs more than 50 persons.

  • Does the FMLA Cover It? - No, while the concierge's condition may be a "serious health condition," the employee is not entitled to leave under the FMLA because he or she worked less than 1,250 hours during the 12 consecutive preceding months.
  • Does the ADA Cover It? - Yes, the concierge becoming confined to a wheelchair is likely a "disability" under the ADA as it affects one or more major life activities. Absent undue hardship, the employer is required to engage in a dialogue with the concierge to reasonably accommodate his injury which may include new equipment or additional time off work.
  • Does Worker's Compensation Cover It? - No, the concierge's injury was not work-related.

Avoiding Disability Discrimination Litigation

Given that worker's compensation claims are a common occurrence in the hotel industry, it is important to analyze each employee's specific injury under the parameters of the FMLA, ADA, and worker's compensation, as well as any state specific requirements.

If an employee is on FMLA leave, it is vital to ensure their return is in conformity with the above guidelines. If an employee fails to return following FMLA leave, an employer should engage in an interactive process with the employee to determine if the employer should grant additional leave as a reasonable accommodation for a disability under the ADA. The employer should communicate with the employee to determine the nature and extent of the medical condition in an effort to make reasonable accommodations . An employer should document in writing all leave requests, reasonable accommodation efforts, and the interactive process.

An employer's knowledge and understanding of the FMLA, ADA, and worker's compensation is imperative to avoid disability discrimination litigation. Each employee's situation is unique and should be analyzed independently under the parameters of all applicable laws.

This article provides an overview of the law and is not intended to be, nor should it be construed as legal advice for any particular fact situation. For additional information regarding how this issue may affect your business, please contact the author.

alt text Jenna Warden co-authored this article. Ms. Warden is an associate at Fisher & Phillips LLP, Irvive office, one of the nation's older labor and employment law firms exclusively representing management. Her practice includes counseling and defending employers in all areas of labor and employment law. In 2012, Ms. Warden earned her Juris Doctor degree, graduating magna cum laude, from Chapman University Dale E. Fowler School of Law in Orange, California. During law school, Ms. Warden served as the Managing Editor of the Chapman Law Review and was an Academic Fellow in Torts. She also participated in the Warren J. Ferguson American Inn of Court, the Student Bar Association, and Honor Council. She may be contacted at jwarden@fisherphillips.com or 949-798-2150

John Mavros, Attorney at Law, is a partner in Fisher Phillips’ Irvine office. He represents employers with labor and employment law, such as unpaid compensation claims, including unpaid minimum wages, overtime, meal/rest period premiums, vacation pay, and/or business expenses, on both an individual and class action basis. Mr. Mavros defends businesses involved in civil litigation or arbitration. This includes defending claims brought before the Division of Labor Standards Enforcement (DLSE aka the Labor Board) and the California Unemployment Insurance Appeals Board. He assists employers with employee handbook preparation, wage/hour audits, new hire policies, employee compensation plans, severance agreements, reductions in force, and day-to-day workforce issues. Mr. Mavros can be contacted at 949-798-2134 or jmavros@laborlawyers.com Extended Bio...

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