• A Stitch In Time Saves Nine! Court Holds That A Complete Interactive Process in Disability Cases Is Mandatory
  • November 17, 2008 | Author: Lauren J. Katunich
  • Law Firm: Ervin Cohen & Jessup LLP - Beverly Hills Office
  • So the old saying goes, and so the Courts make it relevant today. Indeed, California’s recent ruling in Nadaf-Rahrov v. Neiman Marcus Group underscores the importance of engaging in a complete “interactive process”, rather than a nominal one, to determine whether disabled employees can be reasonably accommodated in the workplace.

    The Employee’s Disability

    Plaintiff Nadaf-Rahrov started working as a clothes fitter at Neiman Marcus. She suffered from recurrent back and joint pain that developed into carpal tunnel syndrome. Neiman Marcus provided Plaintiff with various accommodations, including time off from work and a shortened work week. In December 2003, however, Plaintiff ’s doctor issued a written certification stating that she was “unable to perform work of any kind”. As a result, Neiman Marcus’ human resources manager authorized Plaintiff ’s time off as a family medical leave. During the leave, Plaintiff ’s doctor updated his diagnosis of Plaintiff and sent Neiman Marcus a subsequent certification indicating that he would “strongly support” Plaintiff ’s change to a position that did not involve “bending, standing, or kneeling”.

    The Employer’s Response

    Plaintiff ultimately exhausted her family medical leave, as well as her vacation and sick leave. Seven months after Plaintiff went on her medical leave, Neiman Marcus terminated Plaintiff ’s employment. The decision to terminate Plaintiff was based, in large measure, on Plaintiff ’s doctor’s original written certification that Plaintiff was “unable to perform work of any kind”. Neiman Marcus took the position that without an official work release from Plaintiff ’s physician, Neiman Marcus had no obligation to return Plaintiff to work. In addition, Neiman Marcus reasoned that, even if Plaintiff could return to work in some capacity, Plaintiff was not qualified for any of the open positions within the Company and there was therefore no reasonable accommodation that could be made for her.

    The Lawsuit

    Plaintiff sued Neiman Marcus for disability discrimination based on termination of employment, failure to accommodate, and failure to engage in the interactive process. The trial court was convinced that Neiman Marcus did all it was required to do and granted the employer summary judgment. Plaintiff appealed this ruling to the California Court of Appeal.

    The Appellate Court’s Ruling

    According to the appellate court, Neiman Marcus placed too much emphasis on Plaintiff ’s doctor’s original certification and ignored the possibility of accommodation created by her doctor’s later certification about her work limitations. Furthermore, the appellate court found that Neiman Marcus failed to provide the doctor with sufficient information about the essential job functions of any other available position within the Company (or soon-to-be available position), and therefore deprived him of the opportunity to provide a complete opinion. Because of this, said the appellate court, material issues of fact were in dispute and a jury should determine (a) whether a further reasonable accommodation could have been made available to Plaintiff and (b) whether Neiman Marcus was responsible for the breakdown in the interactive process by requiring Plaintiff to provide a return to work release before discussing with Plaintiff alternative open positions and their physical requirements.

    The Valuable Lessons Learned

    • Delve Deeper: Employers are cautioned not to rely too heavily on what is contained within a doctor’s certification, especially where the information contained therein is far removed in time from the termination decision. The obligation for an employer to engage in an interactive process requires that the doctor’s note be examined in context, with existing information reevaluated as new information comes to light.
    • Provide Information About All Available Job Alternatives: To the extent that the employee or his/her doctor indicates that the employee may be able to perform work in some capacity, the employer should give the employee information about all of the open job positions, as well as any job positions that the employer reasonably believes will become open in the foreseeable future. In turn, the employer should provide job descriptions for the employee to review with his/her doctor to determine whether the employee is physically capable of performing the job.
    • Reassess Whether Termination Is Necessary: Generally speaking, medical leaves of absence are unpaid (excluding certain state benefits provided under State Disability Insurance, Paid Family Leave, etc.). Accordingly, in some cases, simply leaving the employee out on unpaid leave may be advisable.
    • Double-Check Whether All Precautionary Measures Have Been Exhausted: Where termination is a necessity, employers should make sure that they have done everything in their power to communicate with the employee about all available options, including verifying the current opinion of the employee’s health care provider. Employers should also give ample notice to the employee of the intent to terminate before the termination decision is made final.
    • When In Doubt, Contact Legal Counsel: The rules regarding disability discrimination and an employer’s obligation to provide a reasonable accommodation can be difficult to navigate. A call to qualified legal counsel may, in the long run, save unnecessary headache and expense.

    Did you know…

    • That Governor Arnold Schwarzenegger has passed a bill that bans all text messaging while driving? Effective January 1, 2009, the law prohibits all drivers from sending, writing, or reading text messages on portable electronic devices in hopes of reducing distraction-related accidents.
    • That losing employees in Brinker Restaurant Corp. v. Superior Court of San Diego County have, as predicted here, filed a petition to the California Supreme Court to grant certiorari review to the employer friendly appellate court ruling? If the Supreme Court grants review, the Brinker decision may be overturned.