If an employer provides a temporary reassignment to accommodate an employee’s disability/pregnancy restrictions, does it have to return her to that assignment after her maternity leave? The EEOC seems to think so. In Equal Employment Opportunity Commission v. Dependable Health Services, the EEOC alleged that Dependable Health Services (DHS) discriminated against Sheena Berry, who has sickle cell anemia. Although the facts are far from clear in the complaint, it appears that the EEOC is claiming that DHS initially failed to reassign Berry to accommodate pregnancy complications related to her sickle cell anemia. After she was reassigned, the EEOC alleges that DHS again failed to accommodate Berry by returning her to that reassignment when she was ready to return to work after her maternity leave. Finally, the EEOC claims DHS terminated Berry because of her disability.

Facts per the EEOC Complaint

Sheena Berry started work in March 2016 as a phlebotomist at Walter Reed National Military Medical Center. In September, DHS became Berry’s employer when it took over the contract at Walter Reed. Berry told DHS she was pregnant and disabled (the sickle cell anemia) which restricted her ability to lift and bend. She requested a reasonable accommodation—that she not work mobile blood drives. DHS said no but the mobile blood drives would “be kept short.” In October 2016, DHS changed its decision after Berry was working a blood drive and had premature contractions and was hospitalized. At that point, DHS assigned Berry to the Outpatient Phlebotomy Department (which did not require mobile blood drive work), and she worked there until she delivered her baby in November 2016.

While on maternity leave, in January 2017 Berry requested reassignment to the Outpatient Phlebotomy Department (which suggests that she understood that the original reassignment was temporary). Curiously, the complaint is silent about any information from Berry’s doctors supporting her requests. The EEOC alleged that DHS did not respond to Berry’s request or her follow-up requests, although it did ask for her return to work date.

On Friday, February 24, 2017, Berry told DHS she would return to work the following Tuesday. On Monday, DHS indicated it was going to backfill the position and terminated Berry, effective immediately.

The EEOC’s Claims

The EEOC has sued DHS under the Americans with Disabilities Act (ADA). It alleged that Berry was disabled—both because she has sickle cell anemia and because she had complications with her pregnancy related to her sickle cell anemia. They also alleged that Berry has a record of disability.

The complaint puts the first ADA violation in September 2016 when DHS failed to transfer Berry to the Outpatient Phlebotomy Department to accommodate her. Then, without any other details, the complaint alleges that DHS “failed to allow Berry to return to her phlebotomist position or reassign her; and instead discharged her because of her disability and record of disability.”

Takeaways

As always, remember that the complaint is just the EEOC’s side of this story. There is always another side with details that the EEOC (and we assume Ms. Berry) disputes. However, based on these allegations, there are a couple of good reminders:

  • Always engage in (and document) the interactive process to show you worked with an employee to find a reasonable accommodation. The EEOC is apparently claiming that DHS did not engage in this process. In most cases, failure to engage in the process is much harder to defend than denying a requested accommodation.
  • Even if you doubt the employee is disabled, engage in the interactive process. Recall that after the clumsily named Americans with Disabilities Act Amendments Act (the ADAAA), employers are supposed to focus on whether they can provide a reasonable accommodation and not on whether an employee is actually disabled (because almost everyone is under the ADAAA). I am not suggesting that you not request information from an employee’s doctor to support the claimed disability or the requested accommodation. I am suggesting that even if you don’t think the employee is disabled, engage in the interactive process anyway (because that is easier to defend).
  • One of the EEOC’s agenda items is leave as a reasonable accommodation. Even employees who have no FMLA rights can be entitled to leave for a disability. (Notice that the EEOC has not pled an FMLA claim– presumably because Berry was not covered.) The commission is looking for cases on this issue so make sure you handle leave requests with care.