The U.S. Equal Employment Opportunity Commission (EEOC) sued Mia Aesthetics Services ATL, LLC, and Mia Aesthetic Services, LLC, a cosmetic surgery provider operating in eleven cities, for disability discrimination.

The EEOC alleges that after a surgical sales coordinator employee was

diagnosed with breast cancer, she requested to be able to telework for three months while she received chemotherapy treatments and supplied medical documentation.

The EEOC alleges that working in-person was not an essential function of a sales coordinator position, and that the employee could have performed the essential functions from home.

The employer, however,  refused to allow telework as a reasonable accommodation. The employer instead offered "an ineffective 'accommodation' of a part-time front desk position, which would have decreased the surgical sales coordinator's earnings and subjected her to increased person-to-person contact," while in her immunocompromised state, according to the EEOC.

Because the employee would not accept the in-person part-time position, the employer terminated her and, shortly thereafter, filled the sales position with a fully remote surgical sales coordinator. "EEOC Sues Mia Aesthetics for Disability Discrimination" www.eeoc.gov (Jul. 31, 2024).

Commentary and Checklist

In the above matter,  the surgical sales coordinator position is a position that can be performed fully remotely, as proven by the alleged acts of the employer when it hired a replacement sales coordinator to work fully remotely.

Employers should consider information from the EEOC about employees with cancer. https://www.eeoc.gov/laws/guidance/cancer-workplace-and-ada 

In addition, the U.S. Department of Labor provides additional information for employers. https://www.dol.gov/agencies/whd/fmla/workplace-protections-for-individuals-cancer

Here are considerations for healthcare employers when considering reasonable accommodations:
 

• Determine whether the employee is covered by the ADA. Employers with 15 or more employees are covered, and state law may apply to employers with fewer than 15 employees
• Follow your organization's policies and procedures for determining whether reasonable accommodations are to be provided to an employee
• Take all disability-related accommodation requests seriously and evaluate them on a case-by-case basis
• Document that the employee has made a request for a disability- related reasonable accommodation, including when and where the request was made and the substance of the request
• Immediately meet with the employee to engage in an interactive process to discuss the request. This process is a good faith effort by both the employer and employee to discuss limitations a disability may pose and what reasonable accommodations are available
• Obtain a written medical release from the employee so the employee's healthcare provider will provide information as part of the interactive process
• Ask for documentation from the employee's healthcare professional as to the nature of the impairment(s), its severity, duration, the activities limited by the impairment(s) and how the impairment(s) limits the employee's ability to perform the job's essential duties or functions
• Assess whether the employee has a disability under the ADA or the state law definition
  • Under the ADA, a disability is one of the following: a) a physical or mental impairment that substantially limits a major life activity; b) a record of a physical or mental impairment that substantially limited a major life activity; or c) being regarded as having such an impairment. (Note: if this section "c" is the only one that applies, no accommodation is required.)
  • The ADA Amendments Act (ADAAA) identifies medical conditions that would be considered a disability, which include: deafness, blindness, intellectual disability, completely or partially missing limbs, mobility impairments that require the use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV or AIDS, multiple sclerosis and muscular dystrophy, major depression, bipolar disorder, post-traumatic stress disorder, obsessive-compulsive disorder, and schizophrenia
  • "Major life activities" include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. Major bodily functions include functions of the immune system; normal cell growth; and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, and endocrine and reproductive functions.
• If a "mitigating measure," such as medication, medical equipment, devices, prosthetic limbs, or low vision devices eliminates or reduces the symptoms or impact of the impairment, that fact cannot be used in determining if a person meets the definition of having a disability
• Focus instead on whether the individual would be substantially limited in performing a major life activity without the mitigating measure. Mitigating measures does not apply, however, to those who wear ordinary eyeglasses or contact lenses
• Evaluate accommodation requests on a case-by-case basis depending on the essential job functions and how the employee's disability affects their ability to perform
• Continue the interactive process until you find an accommodation that meets the needs of the employee and does not create an undue hardship for the employer
• Obtain verification from the employee and his or her healthcare provider that the agreed-on accommodation will not worsen the employee's disability
• Do not use "undue hardship" as an excuse to deny accommodations simply because they would involve some cost or difficulty to implement
  • "Undue hardship" is a limited reason to deny a reasonable accommodation. The EEOC considers not only the cost of the particular accommodation, but also the financial stability of an employer. If an accommodation would be unduly extensive or disruptive, or would fundamentally alter the nature or operation of the job or business, it would not be "reasonable"
  • For example, to provide a special chair at a cost of hundreds of dollars may be an undue burden for a small nonprofit, but it would likely not be viewed as such for a sizeable for-profit employer
• Once an accommodation has been determined, document it (i.e., what it is, start date, and any other details). Likewise, document any denial of a reasonable accommodation
• Inform the supervisors and managers of the employee so they can implement the accommodation
• Maintain all documentation pertaining to the request for reasonable accommodation
• Should the accommodation not be helpful, managers should be trained to alert those who granted the accommodation so the interactive process may be continued. Sometimes, business needs or the effects of the disability on the employee change, in which case the issue of accommodations may need to be revisited