Protecting Against Claims of “Failure to Accommodate”

July 12, 2019


It is a fact of life that employers get sued by employees.  In this case, an employee hired legal counsel and threatened to sue the employer for failure to follow ADA accommodation requirements.  The attorney alleged the employer was liable for over $210,000, plus legal fees.

Background of Events

The employee had a history of attendance issues and had been given a personal leave of absence to attend to these concerns.  When the agreed leave was over, multiple attempts to contact the employee to put them on the schedule failed.  The employer requested Employer’s Guardian proceed with termination due to job abandonment (“No Call/No Show”).

Employer’s Guardian reviewed the employee’s past attendance issues documented in EGForce, a robust HCM, saw some were for medical reasons, and recommended that the employee be notified they were subject to termination for job abandonment if they were not able to provide a compelling reason for not staying in contact.

The employee responded to the certified letter and included medical documentation of a severe mental disorder that resulted in their hospitalization.  Included with the medical documentation was a list of prescribed medications.  Employer’s Guardian initiated LOA proceedings as the condition likely qualified for FMLA/CFRA protected leave.  The employee was sent FMLA/CFRA documents and a medical certification form for their medical provider to complete.

The employee returned the completed medical certification the following day.  The medical provider authorized the employee to return to work with no restrictions. The employer was alarmed as the employee handled heavy equipment and the medications prescribed would present a clear danger to the employee and others if used while on the job.  Members of Employer’s Guardian’s HR department brought in members of EG’s Safety and OSHA compliance team.  The Safety team contacted the medical provider who had completed the medical certification, and learned that the employee had not informed the medical provider of their recent mental disorder.

The Safety team used that knowledge to legally arrange for a Fit for Duty medical evaluation by a physician who was given all prior medical records.  The employee was found to be unfit for duty.  The employer requested that they employee be terminated for lying and being unfit for duty.  Employer’s Guardian informed the employer that the employee still qualified for FMLA/CFRA protections now that they had the medical certification properly completed.

The employer agreed to continue with the LOA and the employee was informed of their rights.  Two days later the employee voluntarily resigned and termination documentation was drafted by Employer’s Guardian for the employer.  Approximately one month later the employer received a legal demand letter from the employee’s legal counsel threatening to sue for Failure to Accommodate under the ADA, and Wrongful Termination.


The employee was not eligible for protections under the ADA until all protections were exhausted under FMLA and CFRA leaves.  The employer had substantial documentation that showed multiple good faith efforts to protect the rights of the employee.  The voluntary resignation was captured in writing by the employee at the prompting of the team at Employer’s Guardian, effectively negating any allegation of wrongful termination.

Lessons for Employers

This employer was ready to terminate employment twice during the course of events, and that could have been a painful mistake. Juries are sympathetic to individuals with disabilities, even when they choose to engage in unsafe behavior.  Protecting employers requires systems, processes, and expertise be applied consistently.  They must work in unison and generate a document trail that can be used to defend if required.

Please feel free to contact Employer’s Guardian if you have any questions on a similar subject.

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