New Decision Reaffirms Interactive Process Roadmap for Employers

The following article was first published on Shipman & Goodwin attorney Dan Schwartz’ Connecticut Employment Law Blog. It is reposted here with permission.

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The Connecticut Appellate Court officially released a decision April 7 that provides some useful (if straightforward) guidance for HR professionals and employment lawyers in the state.

In Hanke v. Electric Boat Corp., the court affirmed summary judgment in favor of the employer on all three counts—disability discrimination, failure to accommodate, and retaliation—in a case that touches on some of the most frequently litigated issues in disability law.

If you’ve been reading this blog, you know that the intersection of disability leave, the interactive process, and employer termination policies has been a recurring theme here since 2008, when the Connecticut Supreme Court’s landmark decision in Curry v. Allan S. Goodman, Inc. first established that state law (not just federal law) requires employers to engage in an interactive process with disabled employees seeking accommodations.

Hanke adds another important chapter to this developing body of law—and this time, the facts provide a good example of what employers should be doing.

The Facts in Brief

Stuart Hanke was an engineering supervisor at General Dynamics Electric Boat who stopped reporting to work in September 2019 after a series of performance issues, including a prior suspension for sleeping during a meeting.

He applied for and received short-term disability benefits for stress and anxiety, which were administered by a third-party administrator (Sedgwick).

During his time out, Electric Boat stayed in contact with him, communicated about his return to work, and notified him of the process for requesting a formal leave of absence.

At no point prior to his termination did Hanke communicate an intent to return to work.

Hanke never utilized that process and never requested a leave of absence.

After exhausting 26 weeks of short-term disability, Hanke was approved for long-term disability through a second third-party administrator (The Hartford).

In accordance with its longstanding policy of administratively terminating employees approved for long-term disability, Electric Boat ended his employment effective April 30, 2020.

At no point prior to his termination did Hanke communicate an intent to return to work or provide an expected return date. He was not medically cleared to return without restriction until June 2020.

The Court’s Analysis

The Appellate Court affirmed summary judgment.

On the disability discrimination claim, the court applied the familiar McDonnell Douglas burden-shifting framework and concluded that Hanke failed to establish a prima facie case because he could not show he was qualified to perform the essential functions of his job with or without a reasonable accommodation at the time of his termination.

The only accommodation Hanke argued was at issue was a leave of absence. But as both this court and federal courts have long recognized, “attendance at work is a necessary job function” and “[a]n employee who is unable to come to work on a regular basis [is] unable to satisfy any of the functions of the job in question, much less the essential ones.”

The court’s analysis tracks closely with its prior decision in Thomson v. Department of Social Services, which I covered on this blog, where an employee’s open-ended leave request was held to be effectively a request to hold her position open indefinitely—not a reasonable accommodation.

The undisputed evidence showed Electric Boat did engage in the interactive process.

Hanke tried to distinguish Thomson by pointing to a footnote suggesting employers must demonstrate they engaged in the interactive process before relying on the indefinite nature of a leave request.

But the court found his reliance misplaced: the undisputed evidence showed Electric Boat did engage in the interactive process—it communicated about return to work, informed Hanke of the leave process, and reached out multiple times. Hanke simply never responded.

As to the failure to accommodate claim, the threshold requirement for a failure to accommodate claim is that the employee must actually request an accommodation.

Hanke argued that his application for disability benefits was itself a request for a leave of absence.

The court rejected this argument, finding that disability benefits and leave of absence requests were separate processes—and Hanke himself acknowledged in his deposition “that a medical leave of absence is a separate process from short-term disability” and that he did not “recall going down the medical leave of absence process.”

Takeaways for Employers

Hanke is a satisfying capstone to a line of cases I’ve been following for nearly two decades. Here’s what it reinforces:

The interactive process is a two-way street. The employer has a duty to engage in good faith, but the employee has obligations too. An employee who doesn’t request an accommodation, doesn’t provide a return date, and doesn’t respond to the employer’s outreach cannot later claim the employer failed to accommodate a request that was never made.

Applying for disability benefits is not the same as requesting a leave of absence. When an employer uses third-party administrators for disability benefits and has a separate process for requesting leave, an employee’s application for one is not automatically a request for the other. Electric Boat told Hanke about the leave process. He didn’t use it. That mattered.

Indefinite leave is still not a reasonable accommodation. Hanke joins Thomson in the growing body of Connecticut Appellate Court decisions holding that a request for leave without a defined return date is not a reasonable accommodation. An employer is not required to hold a position open indefinitely.

Document everything. From my perspective, the employer appeared to win this in large part because it had a clear record—the emails about the leave process, the check-ins about return to work, the consistent application of its long-term disability termination policy. That documentation made the difference between a case that goes to trial and one resolved on summary judgment.

As I’ve said on this blog more times than I can count: engage in the interactive process. Sit down (or pick up the phone) and talk to the employee. Find out what they need. Offer what you can. Document the conversation.

Do those things and a victory in court is that much closer.

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About the author: Dan Schwartz is a partner at Shipman & Goodwin and has decades of experience solving complex, employment law problems for companies.