Reasonable Accommodations are among the most challenging HR situations that our clients face. One of the reasons for this is the lack of clear or specific rules on how far an employer has to go to accommodate the disabilities of employees. While this case does not solve this problem, it does provide some guidance on how far is far enough.
Stephen Tarbell was a Rocky’s Hardware store manager when diagnosed with a heart problem in 2011. A year later, Rocky’s sought to transfer Tarbell to another store as part of a restructuring triggered by the closing of a third store. He told his boss that he didn’t want the transfer and that he wasn’t up to it physically. He told his doctor that Rocky’s wanted to put him in a job that he couldn’t handle, so she gave Tarbell a note stating that Tarbell could do “no heavy lifting or more physically demanding or new position due to heart condition.” The doctor also stated that Tarbell could not continue to manage his original store because the increased business it expected to receive due to the closing of the nearby store would be too demanding for Tarbell.
Based on the information received from the doctor, Rocky’s provided Tarbell with FMLA paperwork. Tarbell took twelve weeks of FMLA. At the end of Tarbell’s FMLA leave, Ms. Markham – Rocky’s HR director – called Tarbell and told him that she had been holding some jobs for him. She offered him the position of assistant manager at a different store at the same rate of pay that he had been earning as store manager. Markham also offered Tarbell a paint advisor position at a lower pay rate but said she would look into what they could do about that pay rate. Markham also told Tarbell that she was open to hearing other options from him. Tarbell emailed his acceptance of the assistant manager position to Markham. He didn’t identify any restrictions he thought he’d have in returning to work.
Markham asked Tarbell to get a note clearing him to work in a new position, with or without accommodations, and identifying, what, if any, restrictions he had. Tarbell gave Markham a return to work note that set forth the same restrictions as the earlier note, including the restriction that Tarbell not be assigned to any new positions. Markham emailed Tarbell to let him know that his doctor’s note had the same restrictions as the earlier note and asked Tarbell to call her. Tarbell emailed Markham telling her that his doctor provided all of the information needed and that she shouldn’t expect her to “justify your decisions.” Markham emailed Tarbell to make it clear that Rocky’s needed his doctor to clarify in writing what he could and could not do before they could go any further, as what he had been telling her was inconsistent with the doctor’s note she had received. Among other things, she asked whether his doctor felt that he could work in a different position. Markham also told Tarbell that an offer had been made to a candidate for the paint advisor position the day before. Markham asked Tarbell to “[p]lease get me clarification from your doc asap so that we can continue to try to get you back to work.”
On August 30, 2012, Tarbell emailed Markham that he was trying to get the clarification. However, Tarbell decided “not to bother” providing information to Markham because he felt that she was frustrated by receiving it in “dribs and drabs.” Tarbell made no effort to contact Markham in September. On September 17, 2012, the assistant manager position was filled due to the burden on the store’s staffing.
On Friday, September 21, 2012, Markham notified Tarbell that based on his lack of response, she considered him to have voluntarily terminated due to job abandonment on September 20, 2012. Upon learning of his termination, Tarbell did not ask Rocky’s to reconsider his termination nor did he provide any further medical information to Rocky’s.
Tarbell sued Rocky’s, claiming that Rocky’s discriminated against him based on his disability by: failing to hire him for the assistant manager position, failing to accommodate him after his FMLA leave with reduced hours or an indefinite leave of absence, and terminating his employment. Rocky’s asked the court to dismiss Tarbell’s suit without a trial, and the court agreed.
In dismissing Tarbell’s suit, the court reached several key conclusions. First, the court found that Tarbell could not establish that he could perform any new position at Rocky’s, including assistant manager and paint advisor, because his doctor’s note stated that he was medically incapable of working in a new position. As a result, Rocky’s was not legally obligated to hold those positions indefinitely for him and it was reasonable for Rocky’s to fill those positions once it became an undue hardship to go without them.
Second, the court concluded that Tarbell failed to keep Rocky’s informed of his return to work status, and, as a result, Rocky’s was not obligated to guess what was going on with him or to give him an open-ended leave of absence.
Finally, at the time Rocky’s terminated Tarbell, there were no vacant positions Tarbell could perform, and state and federal disability discrimination laws did not require Rocky’s to create one that he could perform.
This case has many helpful takeaways. Employers can rely on an employee’s own doctor’s notes even if it means taking adverse employment actions based on one. Additionally, the case reiterates that indefinite leaves of absence are not reasonable accommodations. The case also recognizes that employers need not hound employees for medical updates, because employees bear responsibility for keeping their employers informed of their return to work status.
This decision also illustrates the benefit of bending over backwards in an attempt to get employees back to work. Rocky’s ability to demonstrate the extensive efforts it took to return Tarbell to work served it well in successfully defending this case. Through these efforts, Rocky’s was able to show the court that Tarbell’s requested accommodations created undue hardship for it rather than mere inconvenience.