Legal Eagle Eye Newsletter for the Nursing Profession(4)2 Nov 95

   Quick Summary: Without clarification from the employee or the employee’s physician as to what accommodation is needed, the employer and the court can not ascertain whether the accommodation is reasonable accommodation as required by the laws against disability discrimination.

   The employer contended that without clarification from the employee’s treating physician, the employer was unable to determine what form of accommodation would be needed to render the employee "other-wise qualified" for employment despite her disability.

   The employee must communicate to the employer what sort of "reasonable accommodation" is needed, and show that such accommodation will render the employee "otherwise qualified" for employment.

   The employer can still decline the employee’s request for an accommodation to a disability, if such accommodation will cause and "undue" burden or excessive financial hardship on the employer.  COURT OF APPEALS OF TEXAS, 1995.

   An individual was hired to work as a mental health aide in a state psychiatric hospital. During her two-week orientation period, she experienced an epileptic seizure on the job. The hospital administrator gave her a physical capacity report form to be completed by the aide’s personal physician.

   The aide’s neurologist, who had been following her for her epilepsy for over ten years, indicated on the form that the aide was capable of performing the job activities listed on the report, provided that "seizure precautions" were taken. This report was returned to the hospital administrator.

   The administrator gave the aide a second physical capacity report form for the neurologist to complete. According to the court record, the second report form did not specifically request that the neurologist explain what he meant by "seizure precautions," but did ask him to certify that the aide was capable of "remaining alert 100% of the time."

   There were additional discussions between the neurologist and a staff physician at the hospital. The record of the case was in dispute, however it was determined by the court that the second physical capacity report form was not returned by the aide or by her physician before the deadline which the hospital had set for its return.

   The aide was terminated on grounds of "insubordination" when the second physical capacity report form was not returned.

   The Court of Appeals of Texas upheld the employer’s right to terminate the employee under these circumstances. In essence the court ruled that before considerations of "reasonable accommodation" come into play, the employee must communicate to the employer the specific parameters of what the employee considers necessary to render the employee "otherwise qualified" for employment despite a disability.

   In this case, it boiled down to the fact that the employee and her treating neurologist never were able to specify what exactly it meant for the employer to utilize "seizure precautions" in the context of this employee’s job duties. As this was never specified by the employee, the employer was justified, in the court’s view, in terminating this employee despite her disability.

   This case was filed under state law. Under state law in Texas, it is illegal to discriminate in employment based on race, color, disability, religion, sex, national origin or age. If an employer fails to hire an individual, or discharges the individual, or discriminates in any other manner against an individual in connection with compensation or the terms, conditions or privileges of employment, the victim may sue. (In fact, this is a fair statement of the law of all states and Federal law.)

   Discrimination against a disabled individual is illegal only if the disabling physical or mental condition does not impair the individual’s ability to perform the job with reasonable accommodation. A court must consider the undue hardship defense if that defense is raised by the employer. This means that in ruling on a disability discrimination claim, the court must consider the reasonableness of the cost of necessary workplace accommodation.

   Employers must make "reasonable accommodation" to the needs of disabled employees by furnishing the special assistance their disabilities may require to enable them to perform their jobs. There is a strong public policy in favor of freeing disabled persons from the stigma of employment discrimination, but there is corresponding protection to the employer in not having to provide accommodation beyond what is "reasonable." Austin State Hospital vs. Kitchen, 903 S.W. 2d 83 (Tex. App., 1995).

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