Tuesday, July 18, 2017

General Accommodation Requests Do not Work Well

Originally published by Thomas J. Crane.

When a person asks for an accommodation, s/he must be specific. A general request to “reduce stress” at the work place will not suffice. In Murray v. Warren Pumps, 821 F.3d 77 (1st Cir. 2016), the plaintiff had a bad back. His work restrictions included not lifting anything over 10 pounds and not sitting, walking or standing too long. The employer and the employee agreed that the employer would not ask him to violate these restrictions and Mr. Murray would monitor the restrictions. The plaintiff believed the employer asked him to violate the work restrictions. Sometimes, he would complain. Sometimes, he would not.

The plaintiff’s job was monitoring work place safety. He had some issues with the employer’s observance work safety. He also expressed dissatisfaction with the things they had asked him to do. He complained that sometimes, he was asked to perform physical activities that violated his work restrictions. The company met with Mr. Murray and suggested he was not happy there. The employer offered him a severance package. He refused to resign and was fired.

The employee filed suit. He argued among other things that the employer failed to accommodate him. The court dismissed Mr. Murray’s claim that he sought breaks “from time to time” as an accommodation. The court found the request to be vague. And, the employee did not explain in what way the employer refused those requests for accommodation.The employee also pointed to an incident when his supervisor asked him to help paint. When the plaintiff said he could not, the supervisor walked away, apparently not happy. But, acknowledged the employee, he was not forced to do the painting and he did in fact do the painting. The employee also discussed a time when the supervisor told him to perform some wiring. Murray said he could not physically do that. The supervisor told him to “get it done somehow.” The employee found someone to perform the wiring. Mr. Murray did not do the wiring himself. Mr. Murray carried the toolbox, which did weigh more than ten pounds.

Another time, the supervisor asked him to oversee a project that involved a lot of walking. Murray acknowledged that he did not complain about this request, and he did not inform the supervisor that this request would require him to violate his work restrictions. Mr. Murray also did seek help from anyone. The supervisor had left for the day. But, Mr. Murray did not seek out any other supervisor for help. In responding to a motion for summary judgment, the plaintiff said he did not have to show he was actually required to violate his work restrictions. It was enough, he argued, that he was “deliberately requested” to violate his work restrictions.

The court found these incidents did not amount to failure to accommodate. The worker, said the court, must alert the employer that its request would require him to violate his medical restrictions. The employer has no duty to “divine” the requested accommodation when the employee makes a “mundane” request for change at the work place. The court felt that the employee understood he was to monitor the requests and let the employer know when something might exceed his capabilities. The employer did provide many accommodations, added the court.

The court makes a good point. In some circumstances, it will not be clear to the employer that a requested action might stress the employee’s work restrictions. Some supervisors will simply forget. They have many things to consider, other than one employee’s physical limitations. It seems to me that often when a situation is confusing, the courts will defer to the employer, especially where, as here, the employer did clearly provide some accommodations. See the decision here.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

from Texas Bar Today http://ift.tt/2vesXgr
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