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Employers Are Reminded to Let Employees
Use the Restroom
October 16, 2009
Summary
Yesterday, in
A.M. v. Albertsons, LLC, a California Court of Appeal
published an opinion affirming a $200,000 judgment for a current
employee based largely on one failure to provide a restroom
break, despite a long history of successful accommodations.
Details
A checker at Albertsons was on leave for one
year (after sixteen years of service) for cancer treatment. Her
treatment affected her salivary glands so she needed to drink a
great deal of water to remain hydrated. In turn, she needed to
use the restroom frequently. Albertsons had a policy of not
allowing checkers to have beverages at their checkstands. When
the employee returned to work, she told her managers about her
need for water at her checkstand and for frequent restroom
breaks. They granted an exception to the beverage policy and
told her that someone would cover her checkstand when she needed
to go to the restroom. This worked for over a year.
One night, however, when the checker was
working, there were only two other employees in the store. One
employee was not qualified to run the register and the other was
unloading merchandise from a truck. The employee unloading
merchandise was "in charge", but she did not know about the
checker's disability or her accommodations. When the checker
called her and said she needed to go to the restroom, the "in
charge" employee asked if she could wait because she was too
busy to relieve her. This exchange happened three times until,
finally, the checker urinated while standing at the checkstand.
Based on the traumatic experience, the checker went home and
commenced another leave of absence. Eventually, after
discussions with Albertsons, she returned to work and has
received regular restroom breaks since. Yet, she sued for
various claims under the Fair Employment and Housing Act, one of
which was for failure to accommodate her disability based on the
"in-charge" employee's refusal to relieve her so she could use
the restroom on that one occasion.
Notably, Albertsons had a detailed reasonable
accommodations policy and process, including templates to
document such efforts. Although it did provide a reasonable
accommodation (except for this one evening) to the checker,
Albertsons did not follow its own process or use its own
template to document the accommodations.
On appeal, Albertsons argued that the single
incident was insufficient, especially in light of its history of
accommodation before and after the incident. The court rejected
this argument and held that any refusal of an already
agreed-upon accommodation was a violation of the FEHA.
Albertsons also argued, equally unsuccessfully, that the
employee had a duty to inform the "in-charge" person of her
already agreed-upon accommodation.
What This Means
This case is a cautionary tale for employers on
a number of fronts. It reminds employers, at the very least, to
take the following steps in dealing with reasonable
accommodations: (1) have a policy and process for dealing with
accommodations; (2) make sure you communicate the process to all
employees; (3) make sure you follow the process; (4) document,
document, document – the process, the decision, and how the
accommodation will be implemented; and finally (5) make sure you
follow up and communicate with the employee and anyone who needs
to know what accommodations have been granted.
This E-Update was authored by
Melissa
Listug Klick. For more information, or questions, please contact
Ms. Listug Klick or any Paul, Plevin attorney at (619)
237-5200.
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