No medical report means no accommodation

By Charlie Plumb

I’m proud to be an Okie from Muskogee
— “Okie from Muskogee” by Merle Haggard and Roy Edward Burris (1969)

Although the Army Ammunition Depot is located in McAlester, it was a Muskogee federal court that upheld an employer’s right to require adequate medical support before granting an employee’s request their job be modified on account of health needs.

Working at the ammo plant

According to Lisa Everett, she suffers from a variety of medical conditions including, but not limited to, inflammatory eye disease, chronic migraine/neuralgic headaches and inflammatory bowel disease. Everett says her symptoms are worse during the mornings and involve morning “auras” and “grogginess.” She reports these symptoms last 30 minutes or longer after she awakens.

Everett began working at the McAlester Army Ammunition Depot as a supply clerk. In 2000 she earned a promotion at the ammo plant to physical science technician and was supervised by Brad Black. With her 2000 promotion to physical science technician, Everett’s hours changed to 6:30 a.m. to 5:00 p.m., four days each week. Everett presented to Black a letter from a neurologist indicating her work functioning would improve if she had a later start time. Everett asked that her work hours be modified to 7:30 a.m. to 6:00 p.m., and Black approved her request. Two years later – in 2002 — Black approved another scheduling change request by Everett. Black granted a third schedule change request by Everett in 2006, without requiring any medical information. Everett began reporting to work at 8:00 a.m., but her starting time evolved to the point where she was not reporting to the ammo plant until 9:00 a.m.

Everett becomes a supervisor

In 2010 Everett was promoted for the first time into a supervisory position, where she oversaw six to nine employees. Although her subordinates worked four days a week beginning at 6:00 a.m., Everett was allowed to continue her four day work week and 9:00 a.m. reporting time.

In late 2011 and early 2012, Black became concerned about morale and leadership problems caused by Everett coming to work three hours after her subordinates had begun their day. If her work hours were changed so they matched the employees she was supervising, Everett warned Black that she could need to take additional sick leave. Also, Everett rejected Black’s suggestion that she name a work leader to oversee her responsibilities when she was absent. At one point, Everett agreed to conform her hours with those of her subordinates, but asked that the change be delayed until after her daughter was out-of-school, because Everett was driving her to school each morning.

New sheriff in town

In May 2012 Roger Sartor became Everett’s new director, and he began questioning Black about Everett’s late reporting time. Concerned that Everett’s late starting time “caused confusion and inefficiency in the work team,” Sartor checked with the ammo plant’s human resource office and found Everett had never submitted a formal request for an accommodation; nor was there any medical documentation supporting such an accommodation. Sartor directed that effective June 3, Everett would begin reporting to work at 6:00 a.m. and work four days a week, just like the employees she supervised.

On June 4 Everett met with Black. She was unable to provide a copy of the 2000 neurologist’s report. Instead, Everett provided more recent medical reports; however, none of these documents made any mention or suggestion that Everett’s health condition required modifying her work schedule. Later in June, she made written requests to Sartor, Black and the plant’s Equal Employment Opportunity (EEO) manager for an “alternate work schedule.” On each occasion, Everett was asked to provide medical information to support her request. Eventually, Everett submitted a letter to the employer from her treating physician, but once again the letter made no suggestion she needed any accommodation.

Assignment to regular hours leads to disability retirement

Because she had not provided any medical information to the contrary, during 2012 Everett worked regular work hours like everyone else. Black explained that if she obtained medical documentation in the future, her request to work modified hours would be revisited. At one point, Everett told Black she only wanted the modified work schedule on an interim basis, while she applied for disability retirement.

Later that fall, the ammo plant offered to accommodate Everett by returning her to the previous non-supervisory position, where the employer could permit the modified work schedule she preferred. Everett rejected the offer, and six months later she retired from work on disability retirement.

After retirement, a lawsuit

Think the ammo plant was out of the woods after she retired? Think again. Everett sued the employer in Muskogee federal court claiming the employer had violated the Americans with Disabilities Act (ADA) and the Rehabilitation Act of 1973 by discriminating against her based upon her medical disabilities and failing to provide reasonable accommodation – specifically, refusing her request to continue with the modified work schedule. For very good reasons, the Muskogee court dismissed Everett’s case against the ammo plant.

A checklist for handling accommodation requests

How the ammo plant handled Everett’s accommodation requests offers good lessons for any employer facing health-related requests by employees for job modifications.

First, generally it is the employee’s responsibility to let their employer know an accommodation may be needed. It does not have to be a formal, written request. More often than not, the employer first learns through a comment made by the employee to a supervisor or co-worker.

Once you have notice, it is the employer’s role to take the lead in beginning the ADA’s “interactive process.” This means discussing with the employee the nature and extent of any potential accommodation. Although the employer should take the lead, the interactive process is a two-way street. The employee must be cooperative when discussing these issues. The employer is not required to automatically agree to the employee’s preferred accommodation.

Finally, you needn’t take an employee’s word for their medical circumstances or what, if any, job modification they need. An employer may always — and should always — require adequate medical documentation of an employee’s health condition and related limitations or restrictions when considering potential or requested accommodation.

Here, once Everett brought to her supervisors’ attention a claimed health condition and requested a modified work schedule, Black and his boss talked extensively with the employee and initially acquiesced by allowing her to report hours later than those she supervised. The ammo plant acted reasonably when it offered other alternatives, such as naming a work leader during her absences or returning her to a non-supervisory position where a modified work schedule was feasible. And after observing the problems posed by Everett’s late reporting time, Sartor was well with in his rights to insist that Everett provide medical documentation supporting her need to work a modified schedule.

  • Everett v. Murphy, 15 – CV- 372 – JHP (E. Dist. Okla. 12/19/16)