Colorado Court Ruling Stresses Importance of Documenting Employee Illnesses

June 17, 2019

(Photo courtesy of the U.S. Centers for Disease Control & Prevention.)

Chronic nausea that is associated with taking medication might not seem like a big deal. But if you don’t formally report it to your employer, chances are that protections under the Americans with Disabilities Act (ADA) will be of little help.

That’s the lesson from a recent court ruling in Colorado, involving two student transportation employees with undocumented illnesses and frequent, unexcused breaks.

“Unfortunately, most employers are not going to take a step back, stop the disciplinary process or the investigative process, and decide whether or not there’s a disability issue,” said Denver-based attorney Christopher Lujan, referencing a recent case in which he represented a former bus driver and monitor in their lawsuit against Westminster Public Schools. “Most employers are not going to do that, and that’s unfortunate, especially in this case, because until they got sick, you had two high-performing, long-serving employees. You would have thought they would have gotten the benefit of the doubt.”

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Westminster Public Schools, which is located in Adams County, Colorado, hired Deborah Solis as a monitor and Janet Thompson as an on-call bus driver in 1996. Thompson was granted permanent status at the beginning of 1997.

Westminster Public Schools, which is located north of Denver, currently employs 26 drivers and 11 monitors to transport 3,692 students along urban routes. General education routes average 46 miles, while special education routes can stretch 65.5 miles. In total, the district serves 9,277 students.

The district also made local headlines earlier this year, when it offered to pay entry-level teachers an annual salary of $50,497, which is the highest base salary in Colorado.

After Thompson underwent a breast biopsy in 2012, she was prescribed medication to reduce her risk of further developing cancer. The medication’s side effects included nausea and vomiting, and with that, an increased need for bathroom breaks.

Solis, who suffers from neurofibromatosis and uses a permanent urostomy pouch, also needed extra breaks.

They began servicing route 22 for students with special needs in 2013, and regularly stopped the bus—when empty—to make bathroom breaks, as needed. They said they assumed their supervisors knew and condoned the practice because they claimed other employees stopped for smoke breaks or to make house calls. There didn’t seem to be an issue until new supervisors started looking into driver behavior on their routes.

An investigation by the district of the two women found that Solis and Thompson frequently stopped at a 7-11. The district had a video of Thompson and Solis “planning to ‘stall’ before returning to the transportation garage.” According to court documents, Westminster Public Schools possessed no paperwork that showed Solis and Thompson had a medical condition that required extra breaks.

Citing misconduct because the pair was allegedly “falsifying timesheets and leaving duty assignments without authorization,” both human resources and the Westminster Education Association union recommended that Thompson and Solis resign to avoid being fired.

“One common defense to an ADA claim is the employer claims they did not know. In fact, you saw that in this case,” Lujan said.

Neither Thompson nor Solis submitted formal requests for accommodations under the Americans with Disabilities Act, or doctor notes, until after they were being investigated by the district. Federal Judge William Martinez concluded that without this key piece of evidence, no reasonable jury would find in their favor. On May 8, Martinez issued a summary judgment in favor of Westminster Public Schools.

Lujan agreed. “When employees are bringing up disabilities in the midst of an investigation into their wrongdoing, by then, it’s probably too late,” he added.

Still, there is a lesson for employees and employers alike.

“Had human resources been more proactive in identifying the issues here, all of this could have been avoided,” said Lujan, who previously worked in the human resources department for the City and County of Denver. He explained that a proactive human resources team could not only ensure employees understood their rights under the Americans with Disabilities Act, but also could have followed up after noticing an employee made frequent trips to the doctor.

In an industry where a sedentary lifestyle often leads to health issues, Lujan added that taking an interest in employee health helps with both retention and reducing healthcare costs.

Lujan’s advice to drivers focused on two key points: “No. 1: Go to a doctor often. No. 2: When these employees first start encountering [an] illness that impacts their ability to do their jobs, they need to have that documented and provided to HR, ASAP.”

Both employees and organizations need to be aware that there are two key exceptions to the Americans with Disabilities Act: