When is an employer doing enough to accommodate an employee under the Americans with Disabilities Act (ADA)? The employer in Foster v. Mountain Coal Company learned the hard way that it wasn’t when the issue appeared before the Tenth Circuit Court of Appeals.

A missing form

While at work on February 5, 2008, the plaintiff turned his head quickly and felt a pop in his neck. He went to the emergency room and was cleared to return to work on February 8. That day the employee had a regularly scheduled week off and after that had time off for a previously scheduled surgery. As a result, he was unable to work until March 28. On February 10, the human resources manager told the employee that the emergency room doctor’s return-to-work form was insufficient and that he needed to have the doctor complete the company’s form.

The employee claimed that he was unable to get the form from the emergency room doctor. So the employer instructed him to take it to his primary-care physician to fill out. The employee asserted that he retrieved the form from his physician’s office and, because no one was available at the employer’s HR office, he left the form on an HR employee’s desk. The HR employee denied receiving the form. The employee stated that he went back to his primary-care physician and had him fill out a second form. The employer received this second form dated March 18 but believed that the plaintiff lied about dropping off a first form.

Back to work

The employee returned to work on March 31 and on April 3 was asked to meet with the general manager (GM) and an HR representative. He claimed that they told him he was being suspended because he’d obtained the return-to-work form from his primary-care physician, who hadn’t treated him for his neck injury — even though it was the HR manager who had told the employee to get the form from his own doctor. The employee claimed that, during the meeting, he stated that he was going to go to his physician to schedule surgery and that the GM and HR representative responded by telling him to do nothing.

The employer stated that the employee was told he was suspended because of his dishonesty in lying about delivering the first return-to-work form to HR. The employer also stated that it decided to terminate the employee on April 9 but was unable to reach him.

On April 11, the employee received a note from his physician that said he would need another surgery. The employee read this note to his supervisor over the phone. On April 14, the employee received a letter from the employer dated April 11 stating he had been terminated “effective April 9” because he had given “false information as to a credible Return To Work Slip.”

Lawsuit ensues

The employee brought suit against his employer, alleging retaliation in violation of the ADA. To prove he had engaged in protected activity by making an adequate request for an accommodation, the employee relied on his April 3 meeting statements. He also cited reading his physician’s letter to his supervisor on April 11.

The trial court granted summary judgment in favor of the employer, and the employee appealed. He argued that the court had erroneously determined that his requests for an accommodation were inadequate to put the employer on notice of a disability.

But the Tenth Circuit reversed the trial court’s grant of summary judgment, holding that the employee’s testimony about accommodation requests was enough. A reasonable jury could find that he was terminated after his April 11 request for accommodation. In addition, the appeals court held that the employer’s inconsistent reasons for terminating the employee could be pretext.

Beyond protocols

Foster reminds employers that they can’t avoid accommodating employees by adhering to strict protocols. If you’re on notice that an employee is requesting an accommodation you must take part in the interactive process — regardless of whether the paperwork is proper.

© 2016