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Avoiding Disability Discrimination

October 18, 2019

What happened.  On September 30, 2019 , the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit Assisted Living Concepts, LLC d/b/a Enlivant and North Brook Place, a national owner and operator of senior living facilities, violated federal law by failing or refusing to make a reasonable accommodation to an employee with a disability resulting in her termination.

 

According to the EEOC, Meeka Henderson worked as a chef at the North Brook Place facility owned by Assisted Living Concepts, LLC d/b/a Enlivant (Enlivant). Soon after she was hired in September 2016, Henderson informed Enlivant that she had a medical condition necessitating hysterectomy surgery and requested the accommodation of a medical leave of absence. Henderson's direct supervisor approved her request, and she began a medical leave of absence on March 29, 2017. One day prior to her scheduled surgery, Henderson was contacted by Enlivant's human resources department and was told that if she did not return to work by April 30, 2017, she would be terminated. EEOC alleges that Henderson underwent surgery and provided Enlivant with a doctor's letter stating that she would not be able to return to work until May 20, 2017. Enlivant denied this requested accommodation and instead, terminated Henderson's employment on April 30, 2017.

 

Why this matters. Ms. Henderson was a new employee when she first requested the leave of absence and had been employed by Enlivant for roughly 6-months when she went on leave, so without knowing anything else about the situation she wouldn’t have been eligible for Family and Medical Leave Act (FMLA).  Additionally the Americans with Disabilities Act (ADA) doesn’t explicitly require granting leaves of absence.  Beyond that, she actually was granted a month on a leave of absence.

 

However the ADA requires an employer provide a reasonable accommodation for an employee’s disability. Having a disability is defined by the law as a person who has a physical or mental impairment that substantially limits one or more major life activity. This includes people who have a record of such an impairment, even if they do not currently have a disability. In this case, the subsequent recovery from having a hysterectomy would be a disability under the law and Enlivant was required to make a reasonable accommodation for their employee.

 

According to the implementing regulations, reasonable accommodations are to be determined by what is termed an “interactive process.” Enlivant should have engaged Ms. Henderson in a series of conversations around the options available – and documented the process.  Here, it seems her direct supervisor approved the leave, but the day before her surgery she was notified she would be terminated if she didn’t return after a month.  This suggests a process wasn’t actually engaged; one can easily imagine the supervisor approving the leave and not informing HR she was going out until the last minute, given the oddly timed notice (the day before surgery). 

 

What should have happened.  Specifically invoking ADA protections is not required of your employees, it’s up to your supervisors to know what may qualify for protections. Enlivant should have been training managers to be able to identify these conditions and when to take the matter to Human Resources. 

 

For it’s part, HR should have engaged an interactive process as soon as it was aware of the situation.  Instead, they chose to take a hard line, black-and—white position: come back timely or be terminated…the day before she had surgery.  Beyond just being bad form, this further suggests that there hadn’t been a satisfactory interactive process.  There was no consideration of what Ms. Henderson’s individual condition may be, no other accommodations considered (part-time, assigning her to a temporary position, additional leave) and no justification as to why allowing her to continue on leave would have been an undue hardship. In short, Enlivant failed to live up to their obligations before deciding to terminate her.

 

We don’t know if having handled the situation differently would have changed the outcome for Ms Henderson, or if it would have kept the EEOC from filing a lawsuit, but it would certainly have mitigated the situation.  Instead of taking these relatively unobtrusive steps, the company has now gone through more than two years of process with the EEOC and will now be defending itself in court – a distraction at best – and now has their company name being discussed in EEOC press releases and here.

 

#AskCIP. We can help you navigate the traps in navigating your company policies, labor law, and employee concerns. We’ll work with you to determine a course of action that demonstrates your concern for your employees and mitigates risk.

 

 

EEOC Press Release: https://www.eeoc.gov/eeoc/newsroom/release/9-27-19a.cfm

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