|
Connecticut Supreme Court expands rights of disabled workers
Employers must discuss possible accommodations with Connecticut’s disabled workers
It is a familiar scenario. An employee works for years for a company doing manual labour. Sooner or later, the inevitable happens; the employee sustains an injury that limits his or her ability to perform the job. Can the employer require that the employee be injury and restriction free before returning to work? Can they fire the employee without even discussing the possibility of an accommodation? Not any more.
The Connecticut Supreme Court has stepped up to the plate and issued a ruling, which now requires employers covered by the Connecticut Fair Employment Practices Act (those with at least three employees) to accommodate their employees in the same manner as the Federal Americans with Disabilities Act. This ruling will affect more employers and more employees and help hard working employees in this state when they have injured themselves.
The Statute
The Connecticut Fair Employment Practices Act (CFEPA), prohibits discrimination in the work place based 'race, colour, religious creed, age, sex, marital status, national origin, ancestry, present or past history of mental disability, mental retardation, learning disability or physical disability, including, but not limited to, blindness;' (emphasis added). The language of this statute does not include specific language imposing an affirmative duty on employers to provide reasonable accommodations. Until recently, the lower courts were split on this issue, some ruling that there was no such duty, others holding that there was an implied duty to accommodate.
The Case
In John P. Curry v. Allan S. Goodman, Inc., 2008 WL 926559, our Supreme Court resolved this issue in favour of employees. Mr. Curry originally worked for Allan S. Goodman, Inc. as a truck driver. He injured his back and could no longer drive trucks. During his recuperation, he was assigned a light duty job in the warehouse, which involved standing at racks of bottles and filling 'split' orders with individual bottles. He did this job for six months under the supervision of his doctor, and asked to be assigned to that job for another six months (the company had its employees bid for jobs in six month blocks of time). Before the second six month period began, and just after his employer received a medical report indicating that Curry was permanently disabled and had a 25 pound lifting restriction Curry was fired. He was fired without any discussion about his injury, his restrictions and whether or not he could do the job with or without an accommodation. He was fired because of the employer's policy against permanent light duty and because it required employees to be 'full duty' before returning to work. Through his attorney, Mr. Curry asked the employer to reconsider its decision but it refused.
The trial court granted summary judgment for the employer, but the Supreme Court reversed. First, it held that CFEPA requires employers to accommodate their disabled workers and to engage in a good faith discussion about possible accommodations.
Once a disabled individual has suggested to his employer a reasonable accommodation, federal law requires, and we agree, that the employer and the employee engage in an 'informal, interactive process with the qualified individual with a disability in need of the accommodation ... [to] identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.'
In this effort, the employee must come forward with some suggestion of accommodation, and the employer must make a good faith effort to participate in that discussion. See Humphrey v. Memorial Hospitals Assn., 239 F.3d 1128, 1137 (9th Cir.2001), cert. denied, 535 U.S. 1011, 122 S.Ct. 1592, 152 L.Ed.2d 509 (2002); see also Saksena v. Dept. of Revenue Services, supra, Commission on Human Rights & Opportunities, Opinion No. 9940089 (citing employer's duty to engage in interactive process in good faith).
Curry v. Allan S. Goodman, Inc., 2008 WL 926559,
*11.
The impact
There are three important holdings in this case, which will have broad impact on Connecticut employers and employees.
First, CFEPA now includes a duty to accommodate disabled workers. Because CFEPA applies to employers with three or more employees, it will affect far more employers than the ADA, which affects only those employers with fifteen or more workers. Furthermore, because the definition of 'disabled' under CFEPA is broader than under the ADA, it will affect more workers generally. In order to be disabled under the ADA, you must show that you have a condition, which substantially impairs you in one or more of life's major activities. Indeed, Mr. Curry himself, who had a 30% impairment to his lumbar spine, was ruled ineligible for ADA protection by Judge Peter Dorsey when the case was in the U.S. District Court. Under CFEPA, you need only have a chronic impairment, one recognized in the DSM IV. See Adriani v. CHRO, 220 Conn. 307 (1991) (hypertension caused by personality clash with boss is chronic impairment); Gilman Bros.v. CHRO, 1997 WL 275578 (Conn. Super.) (One month duration of carpal tunnel syndrome at time of termination enough to show chronic impairment).
Second, this duty to accommodate requires employers to engage disabled workers who seek to remain employed in an 'interactive process.' There is no magic language that the employee must use in order to trigger this obligation: ('even if an employee who... becomes disabled while employed just says to the employer,' I want to keep working for you--do you have any suggestions? 'the employer has a duty ... to ascertain whether he has some job that the employee might be able to fill'). Curry,
*11, citing See Miller v. Illinois Dept. of Corrections, 107 F.3d 483,486-87 (7th Cir.1997). An employer's failure to do so is illegal and will preclude summary judgment in a later lawsuit.
Third, any employer policy inconsistent with these rules is illegal. The employer policy at issue required employees to be released to 'full duty' in their normal job (i.e., not a new job sought by the employee) before being returned. Curry was fired and not considered for an accommodation because of this policy. 'A policy - whether express or by application - that eliminates the individualized assessment of each disabled employee for purposes of reasonable accommodations is for all the reasons articulated in this opinion necessarily illegal.' Curry,
*15, n.23. Employers should carefully review their policies to ensure that they do not foreclose an individualized inquiry of whether or not disabled workers can be accommodated.
With this ruling, Connecticut employers may no longer simply cast aside their disabled workers without at least a good faith effort to keep them on the job and accommodate their disabilities and may not maintain policies inconsistent with this rule.
About the author:
Attorney Richard E. Hayber is a plaintiff's employment attorney in Hartford, Connecticut. His law firm represents employees with legal claims arising out of their employment. He graduated from the University of Connecticut School of Law, cum laude in 1992.
|
