The Never-Ending Interactive Process: Nadaf-Rahrov v. Neiman Marcus

Employers are required to engage in an interactive process with qualified disabled employees to determine whether such employees can be reasonably accommodated in the workplace. Many employers might conclude that if an employee's doctor says that the employee cannot work, and the employee has been out for seven months, then the employer can terminate the employee.  Not so fast, according to a new California court decision, Nadaf-Rahrov v. Neiman Marcus.  

In Nadaf-Rahrov, the employee, a clothes fitter, had recurrent back and joint pain, and eventually developed carpal tunnel syndrome.   Neiman Marcus provided the employee with various accommodations, including time off and a shortened workweek.  In December 2003, Nadaf-Rahmov went out on family medical leave, based on her doctor's written certification that she was "unable to perform work of any kind."  Her doctor later sent Neiman Marcus a letter recommending that Nadaf-Rahmov be reassigned to a position that would not involve "bending, standing, or kneeling."  

Nadaf-Rahmov's doctor extended her leave several times.  Ultimately, Nadaf-Rahmov exhausted her family medical leave and company-provided vacation and sick leave.  In July 2004, approximately seven months after Nadaf-Rahmov initially went out on leave, Neiman Marcus terminated her.  Neiman Marcus took the position that without a work release from her physician, Nadaf-Rahmov could not return to work.  Furthermore, Neiman Marcus believed it was not obligated to provide Nadaf-Rahmov with further leave as an accommodation.  

The Court of Appeals disagreed, and allowed Nadaf-Rahmov to proceed with her claims of disability discrimination, including failure to reasonably accommodate and failure to engage in the interactive process.  Nadaf-Rahmov's doctor submitted evidence that his "no bending/standing/kneeling" instruction was intended to mean that Nadaf-Rahmov could perform other work at Neiman Marcus.  He also offered his medical records to show that he always felt that Nadaf-Rahmov was capable of performing other jobs.  In addition, the Court found that although Nadaf-Rahmov testified that she was in substantial pain, there was no reason to conclude that she could not perform some type of work.  And, it found that Neiman Marcus had openings in several jobs that Nadaf-Rahmov could have potentially performed.  

The Court found that because Nadaf-Ramov and her doctor subsequently represented that she wanted to be reassigned to another position, Neiman Marcus's continued reliance on the doctor's earlier statement could constitute evidence of failure to interact.  It held that in some cases, an employer may need to consult directly with the employee's physician to determine the employee's restrictions and prognosis.  Furthermore, the Court found Neiman's decision to terminate Nadaf-Rahmov without advance warning or further discussion to be potential evidence of failure to interact.  

This decision indicates that employers can get in trouble by relying too heavily on doctors' notes in the interactive process.  It also suggests that the fluid nature of the interactive process means that a doctor's note must be examined in context, and existing information must be constantly reevaluated as the process moves forward and new information comes to light.  In fact, employers may need to, at some point in the process, directly communicate with an employee's doctor to fully understand the nature of the employee's disability.  Employers should not make assumptions based on information that is not current.  And, they should make sure that before terminating an employee, they have done everything they can to communicate with the employee about all available options, have verified the current opinion of the employee's health care provider, and have given ample notice to the employee before making the termination final.