About the Americans with Disabilities Act….

In a press release dated Thursday, September 8, 2011, the Equal Employment Opportunity Commission sued Walgreens for Disability Discrimination in the aftermath of the termination of one of the chain’s employees in South San Francisco, CA (see http://www.eeoc.gov/eeoc/newsroom/release/9-8-11c.cfm for the actual release.)

Based on the lawsuit which has been filed, it appears that Walgreens fired an employee who had nearly 18 years of service because she took a bag of chips without paying for them right away.  The employee, Josefina Hernandez, suffers from diabetes, and claimed she needed to eat something right away to offset her low blood sugar.  Josefina ate the chips, felt better, paid for her chips at her first opportunity, and finished her shift.

The case is interesting, and the details that have been released by the EEOC might suggest that Walgreens is in a situation where they are liable to win the battle but lose the proverbial war.  Without knowing the employer’s side of the story, one might assume that Walgreens has a zero tolerance policy for employee theft.  Certainly, an employer of their size could face many issues with dishonest employees – with over 8,000 stores, one can imagine the difficulties the corporation would face if just one employee at each of their stores were to routinely steal from them.  So, perhaps this Walgreens faced a situation where they had an employee who was observed taking an item without paying for it.  Consider their predicament – maybe they had recently fired someone else for the same type of transgression.  No matter that the employee later paid for the item – their take might be that the policy is that you never take anything without paying first, period. If that’s the case, the employee has to be fired, right?

If the above is true, then Walgreens may well have terminated Josefina for a violation of a zero-tolerance policy.  The catch, though, is that the “violation” is seen by the EEOC as something that should have been considered to be a reasonable accommodation for an employee protected by the Americans with Disabilities Act.  Anyone suffering from a disability that substantially limits a major life activity (such as walking, breathing, etc.) may be protected by the ADA – and the ADA requires that employers offer these employees reasonable accommodations so that they may complete their job responsibilities. So, this may come down to whether or not the courts believe that allowing an employee to take (and eat) something without first paying for it (presumably a violation of company policy) should be considered to be a reasonable accommodation.  If this is the court’s read on the case, Walgreens may be in trouble.

Many more details may lurk beneath the surface, of course – and it is likely that Walgreens will have a significantly different take on the episode – but this case highlights the dangers that any company can face if they don’t look at all employee relations issues from every possible angle.  Disciplining an employee for what seems to be a clear-cut violation of company policy can sometimes backfire.  You should always make every effort to consider all details that may be relevant.  Is there a potential ADA implication? Have we had other employees do the same thing – and not disciplined them?  Does the employee have protection for an absence from a state or federal leave policy?  All of these – and many other questions – should be carefully reviewed.  Talk to your HR Consultant before you do anything – discipline doesn’t have to be immediate.  Make sure you know all of the facts before you act – and you may ultimately prevent a situation (and the negative publicity that goes along with it) such as the one Walgreens is presently facing.



Your email address will not be published. Required fields are marked *