Human Resources News & Insights

How to blow an ADA discussion

This company totally failed at working with a disabled employee to find a potential accommodation. 

David Gregor worked as a maintenance technician for Polar Semiconductor, Inc., in Minnesota.

In December of 2009, he suffered a non-work related injury that cost him the index and middle fingers on his right hand. He underwent several surgeries and was unable to work. Polar placed him on short-term disability.

Gregor exhausted his FMLA leave, though Polar opted to extend his time out when he couldn’t return.

But after his doctor told Gregor he couldn’t return to work for one more month, Polar terminated him.

Gregor asked that he be allowed to return to Polar in a different position. HR’s response: “We don’t really do that.” Company officials added their policy was to let people go once they used up their short-term disability.

Two months later, Gergor wrote to the company. He recognized that he couldn’t return to his former position based on his injuries, but he asked for an accommodation to return to work in another position. The company said there wasn’t anything available.

Whoops: Talk to staff before you fire ‘em

Gregor then filed suit, claiming the company violated the Americans with Disabilities Act (ADA) by not accommodating him.

The court concluded that yes, Gregor is disabled. That meant it was up to Polar to show it engaged in the interactive process with Gregor and discussed possible reasonable accommodation.

And, unfortunately for Polar, the court didn’t think the company did such a great job.

It turned out that when Gregor was fired, there were open positions in the company, including ones for a process engineering manager and a chemical sustaining operator. Polar didn’t consider either of those for a potential accommodation.

Worse, the company only engaged in the interactive process AFTER it had fired Gregor. (Turns out you’re supposed to have that talk before you let the employee go. Whoops.)

That was enough to send the case to trial.

An ADA error that’s easily corrected

McAfee & Taft attorney Charlie Plumb, writing on EmployerLinc, implores companies to talk with disabled staff about accommodations at the appropriate time:

It is always the employer’s obligation to initiate discussions with disabled employees about possible accommodations. Those discussions, which should include pinning down limitations and restrictions and discussing accommodation and employment options, always must precede the employer making the decision whether to terminate an existing employee based on their physical limitations.

The case is Gregor v. Polar Semiconductor, Inc.

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