ADA's Interactive Process Is a Two-Way Street

​An employer that grants schedule adjustments that aren't required under the Americans with Disabilities Act (ADA) may later stop allowing such changes when the employee declines to help the employer identify a reasonable accommodation, a recent 5th U.S. Circuit Court of Appeals decision shows.

Time Warner Cable Texas LLC hired the plaintiff in October 2012 as a workforce analyst. In June 2013, the plaintiff made an accommodation request under the ADA to lie down while at work due to dizzy spells related to her pregnancy. While the company found that her request did not technically qualify as an ADA accommodation, it nevertheless granted it.

Shortly thereafter, the plaintiff asked her supervisor for a temporary modification to her work schedule that would allow her to leave the office early to avoid panic attacks brought on by stress associated with heavy traffic. While she did not submit a formal accommodation request, and the company had concerns that she would be unable to perform certain aspects of her job while at home, it nevertheless allowed her to leave the office in the early afternoon and work from her home for the remainder of the day.

Following the birth of her child in December 2013, the plaintiff took 12 weeks of Family and Medical Leave Act (FMLA) leave. After exhausting her FMLA leave in March 2014, she asked to work from home due to difficulties transitioning her child to bottle feeding. Once again, the company agreed and allowed her to work from home from March 2014 until December 2014.

In December 2014, the plaintiff's new supervisor made it clear that in the absence of an approved accommodation under the ADA, she was expected to be in the office beginning in the new year. In response, again citing anxiety and panic attacks resulting from heavy traffic, the plaintiff submitted an accommodation request for a modified in-office schedule, from 7 a.m. to 2 p.m., working from home in the afternoons.

The company denied her request, noting that her position required her to work from the office during normal business hours, including the afternoons. However, the company offered her the option of leaving work at 4 p.m. Ultimately, she refused this proposal and instead sought intermittent FMLA leave that would allow her to leave at 2 p.m., and she immediately adjusted her schedule accordingly.

Initially, the plaintiff's FMLA paperwork indicated that she required the ability to leave early when she experienced her traffic-related anxiety "flare-ups." In response, the company requested additional information regarding the number of episodes the plaintiff experienced per week and the duration of the episodes. The company did not receive information in response to this request. As a result, the company approved the plaintiff's use of one hour of FMLA leave per week for a period of six months. It also designated the majority of the plaintiff's leave previously taken in January and February 2015 as non-FMLA-qualified leave.

On Feb. 24, 2015, the company issued the plaintiff a written warning as a result of poor attendance unrelated to FMLA-approved absences and advised that failure to improve her attendance would result in disciplinary action. The same day, the plaintiff left work early, resulting in the company's issuance of a final written warning. Shortly thereafter, the company terminated the plaintiff's employment after she failed to report to work due to child care issues. The plaintiff filed suit, alleging discrimination and failure to accommodate under the ADA, as well as retaliation under the FMLA.

[SHRM members-only toolkit: Accommodating Employees' Disabilities]

In holding that the ADA discrimination and FMLA retaliation claims could not proceed to trial, the court noted the company's legitimate basis for its termination decision—namely, excessive absenteeism and the well-established principle that "an employee's failure to show up for work is a legitimate reason for firing her." Furthermore, the court reasoned that the plaintiff had not produced evidence suggesting that the company's reason for terminating her employment was untrue. In this regard, the court observed that Time Warner had "a record of granting [the plaintiff's] numerous accommodation and FMLA leave requests back to 2013, even when it was not required to do so by law."

In concluding that the plaintiff's ADA failure-to-accommodate claim also could not proceed, the court pointed to her failure to engage in the interactive process required by the ADA, including her refusal to try leaving the office at 4 p.m., as proposed by the company, or explore public transportation options to address her traffic-related anxiety. The court concluded that her response to the company's proposal to leave at 4 p.m. was "not the stuff of flexible [and] interactive discussions."

Trautman v. Time Warner Cable Texas LLC, 5th Cir., No. 18-50053 (Dec. 12, 2018).

Professional Pointer: Employee use of FMLA leave, particularly when the leave taken is intermittent, can be one of the more challenging leave-related situations employers face. Employers that follow the technical requirements of the statute, demonstrate flexibility and document their compliance put themselves in the best position in the event of litigation.

Jonathan E. O'Connell, SHRM-SCP, is a labor and employment attorney practicing with the federal government in Washington, D.C.

[Visit SHRM's resource page on the Americans with Disabilities Act.]