By: Shannon DeNatale Boyd, Attorney
October 2014
Some employers already know how to proceed upon learning that an employee has a medical condition that may affect his work: (1) begin engaging in the “interactive process,” meaning discuss with the employee the potential need for a reasonable accommodation; and (2) do not take action that might be adverse to this employee without contacting counsel. A recent ruling interpreted “interactive process” broadly by ruling that the employee need not directly state to his employer that he has a medical condition before this duty arises. Although this Advisor considers a Hawaiian case, the Hawaiian statute is substantially identical to the federal Americans with Disabilities Act and California’s Fair Employment and Housing Act. Thus, consider this advice applicable to your business.
In Assaturian v. Hertz Corp., Hertz manager John Assaturian had been disciplined multiple times for angry outbursts. He was then diagnosed with chronic colitis. While he claimed that this condition affected his ability to handle stress, Assaturian did not inform Hertz of his medical condition. Assaturian was issued a final warning in 2008 after admitting he behaved inappropriately in a confrontation with a subordinate. Again, Assaturian did not inform Hertz of his medical condition.
In late 2010, Assaturian began bringing his dog, a Shih Tzu named “Sugar Bear,” to work. Although Assaturian’s service animal card allowed him to bring Sugar Bear to public places, Assaturian did not request permission to bring Sugar Bear to work. In mid-November 2011, a supervisor stopped by Hertz’s Honolulu facility and was surprised to see Sugar Bear along with his kennel and dog toys. Again, the supervisor did not know of Assaturian’s medical condition.
When Hertz’s HR department began its investigation, Assaturian’s pattern of aggression continued. He yelled at the HR representative and hung up on her multiple times. Assurtian claims he told HR that he had a service animal card and that Sugar Bear helped him cope with anger issues. The HR representative told Assaturian that he needed a prescription from a physician.[1] Assaturian later apologized, stating he would contact his physician as he was “not in as much control as I thought.” Assaturian, however, never provided documentation supporting his request to bring Sugar Bear to work.
After he admitted to yelling at a subordinate, Assaturian was terminated in March 2012. During the incident investigation, Assaturian did not state that he had a medical condition or disability, and did not request an accommodation. Not surprisingly, Assaturian filed an ADA-based lawsuit for wrongful termination, failure to provide a reasonable accommodation, and failure to engage in the interactive process. Generally, employers have been required to make a reasonable accommodation when a disability is known to the employer, and it is usually the employee’s responsibility to inform the employer when an accommodation is needed. Recall that Assaturian never informed Hertz of his disability.
While the court noted that Assaturian failed to provide documentation supporting his request to bring his dog to work, the court found there was a question of fact as to whether Hertz had notice of his disability. If Hertz had notice of the disability, then the duty to engage in the interactive process arose along with a potential duty to provide a reasonable accommodation.
So, how can your business avoid this result? First, take note of any indications by an employee that he may be disabled. For example, if an employee requests an accommodation, determine whether the request is based on a medical condition. Do not wait for your employee to tell you he is disabled or to explicitly state he is requesting an accommodation. Rather, begin the “interactive process” by probing whether this is actually a request for an accommodation. If you request that an employee obtain documentation supporting a need for an accommodation, follow up until the legal obligation to provide a reasonable accommodation has been satisfied. Second, consult with counsel before asserting your position as “top dog” and taking any adverse employment action.
Shannon DeNatale Boyd, Attorney
SBoyd@BFASLaw.com
(Direct) 805.966.7599
DISCLAIMER: This Advisor is one of a series of business, real estate, employment and tax advisories prepared by the attorneys at Buynak, Fauver, Archbald & Spray, LLP. This Advisor is not exhaustive, nor is it legal advice. You should discuss your particular situation with us or with your own attorney. Our legal representation is only undertaken through a written engagement letter and not by the distribution of this legal Advisor.
[1] Note that under Title 2, California Code of Regulations section 11065, employers may have to allow “assistive animals” as a reasonable accommodation. “Assistive animals” include “support” animals that provide emotional support to individuals with disabilities like depression. See the Code for further details.
