On February 27, 2020, the Sixth Circuit — the appellate court that exercises federal control over Michigan and a handful of other states — released its opinion in Fisher v Nissan North America, Inc, ___ F3d ___ (CA 6, 2020).  The plaintiff (Fisher) argued that the defendant (Nissan) failed to accommodate Fisher’s disability and failed to engage in the interactive process required by the Americans with Disabilities Act (ADA).  

The salient facts of the case are as follows: In 2015, Fisher, who had long been battling kidney issues, asked for easier work to accommodate his significantly declining kidney functions.  Fisher also requested to be transferred to an easier position but, ultimately, took an extended leave.  After a subsequent kidney transplant, Fisher was left quickly fatigued and negatively affected by his new medications.  He received write ups for leaving early and being absent (which Fisher stated were due to his illness), eventually receiving a final warning.  Fisher did not return to work and was terminated for absenteeism shortly after.  Fisher filed suit thereafter. 

The ADA requires that an employer make reasonable accommodations to the known physical and mental limitations of an otherwise qualified individual with a disability, unlesssuch an accommodation would impose an undue hardship on the employer.  To support his return back to full-time work, Fisher suggested the following: (1) a transfer to a different position, (2) extra breaks, or (3) a temporary part-time schedule.  Nissan argued that Fisher’s absenteeism rendered him unqualified for his position or any other.  However, the Sixth Circuit made clear that absenteeism resulting from the disability itself, without reasonable accommodations, cannot render a plaintiff unqualified.  Fisher expressed his need for accommodations during several HR meetings and found little to no support.  Nissan was obliged to establish the full range of alternative vacant positions for Fisher, to determine if he possessed the requisite skills for those roles, and to consider transferring Fisher to any of these jobs, even if it was a demotion.

Fisher also alleged that Nissan failed to engage in the interactive process.  Under the ADA, once a request for accommodation has been made, both parties have a duty to participate in this mandatory process in good faith.   It was undisputed that Nissan attempted to transition Fisher into a different role upon his initial return to accommodate him.  While this was evidence of initial good faith, Nissan had a continuing duty to engage in the interactive process when it learned that he needed further accommodation.   Fisher’s subsequent accommodation requests should have caused Nissan to continue engaging in this process, or at least show that the new suggestions would cause an undue hardship.   Nissan did neither of these things.  Thus, Nissan’s decision to terminate Fisher because of performance deficiencies related to his disability, without continuing the interactive process, could have violated the ADA.  The Sixth Circuit remanded the case for further proceedings relative to Fisher’s ADA claims.

The case serves as a good reminder that employers should always engage in the interactive process until an employee stops the process or it becomes clear no reasonable accommodation is possible.

The decision may be accessed here.