Just last week we repeated our warning that the EEOC is targeting disability discrimination in the health care industry. Maybe it is to make a clear point that even companies that service the disabled can discriminate. Or maybe alleged disability discrimination in the health care field seems so egregious that the EEOC is engaging in good public relations.
Whatever the reason, the EEOC shows no sign of letting up. It just issued a press release that, once again, it is suing a nursing home -- in Greensboro, N.C. – for alleged refusal to accommodate a nursing assistant with asthma and subsequently firing her because of her disability.
In January 2010, the employer began to require all nursing assistants to supervise residents’ scheduled smoking breaks. Plaintiff, however, found that her asthma was aggravated by cigarette smoke when she performed this task and made repeated complaints about this to her supervisors. When she suffered a severe asthma attack, she brought a doctor’s note and requested to be excused from this task. Her request was denied and she was fired.
Employers should know that they must seek to accommodate employees with disabilities by engaging in discussions about what might be a reasonable accommodation. “Reasonable” is the key word – employers do not have to suffer undue hardship in order to effectuate such an accommodation. As an EEOC attorney put it in this case: "Employers have a duty to work with employees who request reasonable accommodations based on a disability. The EEOC will vigorously prosecute cases where the employer refuses to provide a reasonable accommodation that would enable a person to perform his or her job."
Unless our plaintiff in this case was the only available person to supervise smokers, which seems unlikely, her request to be relieved from this task does not seem unreasonable nor unduly burdensome.