Last week, in Thomsen v. Georgia-Pacific Corrugated, LLC, a federal district court in California held that an employer might have violated its obligations under California’s Fair Employment and Housing Act (“FEHA”) when it simply told an employee to return to his doctor to obtain a note outlining additional work restrictions. The Court held that a reasonable jury could find that the employer was obligated to do more than tell the Plaintiff to go back to his physician and get a new doctor’s note, especially because evidence suggested it would have been possible to respond to some of Plaintiff’s concerns without a new doctor’s note.
Plaintiff worked as a cut-and-die operator at a corrugated container plant. In May 2012, Plaintiff injured his shoulder at work, went on workers’ compensation leave, and returned to work eight months later after undergoing surgery on his left shoulder.
After engaging in interactive process discussions, the company transferred Plaintiff to a new position as an assistant end gluer. Plaintiff initially agreed that the end gluer position satisfied his work restrictions. However, after working in this position, he complained that he was experiencing shoulder pain because of an occasional need to lift more than 30 pounds. Plaintiff also advised the employer that the long hours and manual operation of an overhead lever were exacerbating his condition.
In response to his concerns, the Company’s Human Resources Department asked Plaintiff to “go back to his doctor” to obtain a note so the Company could determine whether additional restrictions were needed beyond Plaintiff’s existing 30-pounding lifting restriction.
The employee then brought the same concerns to the plant superintendent, who also stated that the employee needed to go back to his doctor. The employee never obtained any doctor’s clarifications regarding additional restrictions. Unfortunately the employer did not present evidence that anyone from Human Resources followed up with the employee about the new doctor’s note to verify further work restrictions.
In March 2014, Plaintiff refused to work an overtime shift, and the Company terminated his employment on that basis. Plaintiff then sued, alleging disability discrimination and related claims.
The Law on Interactive Process
The Court rejected the employer’s argument that because the employee failed to obtain an additional doctor’s note, his claims for failure to accommodate and failure to engage in interactive process should fail. First, according to the Court, it was not clear that the assistant end gluer position met all of the employee’s work restrictions, e.g., the occasional lifting beyond 30 pounds appears to violate Plaintiff’s existing doctor’s note.
Additionally, the Court opined that the Company could – i.e. should — have had a conversation with the employee in response to his concerns about the overhead lever and overtime hours, before concluding that he had to return to his doctor.
Finally, although Plaintiff was fired for allegedly “abandoning his shift,” he presented evidence suggesting that the punishment against him was more severe than called for by the Company’s written attendance policy. For all these reasons, the Court refused to dismiss Plaintiff’s claims prior to trial.
Follow up solves many employment issues. Here, a common sense request for additional medical information about an employee’s restrictions did not satisfy an employer’s duty to engage in the interactive process because the employer did not follow up on its request. Whether an employer meets its duty to engage in the interactive process is highly fact-intensive, and courts expect employers to take the lead role, and not simply kick problems back to their employees. Therefore, attention to detail and follow up may prove crucial. Jackson Lewis attorneys are available to assist with any questions regarding disability accommodation and the interactive process.