Court rulings continue to shape the contours of employers’ duty pursuant to the ADA to accommodate employees’ limitations. Very recently, one of the federal appellate courts issued a pro-employer ADA ruling that reinforced the fundamental notion that a person is not “qualified” if he/she cannot perform an “essential” function of the job (even with a reasonable accommodation), and developed the less-familiar notion that required job tasks can indeed be “essential” even if they are not routinely performed. The case, Knutson v. Schwan’s Home Service, Inc. (8th Cir.), provides several practical ADA teachings that are listed at the end of this article.Continue reading this entry
The application and intersection of the Americans with Disabilities Act (ADA), the Family Medical Leave Act (FMLA), and state workers’ compensation laws can aggravate even the most seasoned lawyers and human resources professionals. However, given the EEOC’s increasing focus on employer leave policies and the Department of Labor’s ongoing FMLA revisions, it is now more important than ever that employers ensure that they are compliant in these areas.
Join Foley attorneys Chris Ward and Carmen Couden on March 21, 2013 at 12:00 CT, for a discussion of the purposes and main provisions of each law, the particular legal risks associated with each law, and ways to navigate your way through common leave-related landmines.
There is no cost to participate in this Web conference, but advance registration is required. Please register here.
It’s no secret employers want to keep health care costs at manageable levels. In recent years, many employers have incorporated wellness programs into their employee insurance plans as a way to do just that. Examples of wellness programs could include nutrition counseling, cholesterol and other health care testing, flu shots, or smoking cessation programs. Continue reading this entry
Many employers will need to change their practices for selecting employees for job vacancies due to a decision issued last week by a federal appeals court interpreting the ADA. In EEOC v. United Airlines, the Seventh Circuit addressed the issue of whether an employer has a duty under the ADA to assign an employee who is unable to do his/her current job due to a disability to a vacant position over more qualified candidates for the job. The Seventh Circuit, whose decisions apply in Illinois, Wisconsin, and Indiana, has said that, in most circumstances, they do.Continue reading this entry
The Eighth Circuit Court of Appeals recently ruled on a disability claim — agreeing with the lower court’s decision in favor of the employer — that the Americans with Disabilities Act did not require creating a job within the (restricted) abilities of the employee. Otto v. City of Victoria. While many aspects of the decision seem straightforward, the decision serves to illustrate the willingness of some individuals (and their attorneys) to fight about employment decisions as well as the need for employers to have a good story to tell to support an adverse employment decision.Continue reading this entry
Employers are accustomed to providing training on their anti-harassment policies. However, training supervisors and managers on ADA reasonable accommodation issues is equally important. Often, supervisors and managers are the people to whom employees go with “accommodation” requests. If these supervisors and managers do not know how to recognize and respond to reasonable accommodation requests, they could be improperly denying such requests without even realizing they are doing so. This could result in liability for the employer under the ADA.Continue reading this entry
The ADA does not protect an employee using medical marijuana, even if the individual is using medical marijuana under the supervision of a doctor and in compliance with state law. The Ninth Circuit Court of Appeals issued its opinion on May 22, 2012 in James v. City of Costa Mesa. Four severely disabled individuals who were using medical marijuana under the supervision of their doctors and pursuant to California law filed suit against the cities of Costa Mesa and Lake Forest to stop them from shutting down the collectives that dispense medical marijuana.Continue reading this entry
An employer should have to place a disabled worker into an open position, even if far more qualified employees are seeking the same vacancy. Sound like a legal requirement? It could be.Continue reading this entry
An employer was justified in terminating an employee based on its honest belief that the employee could not perform his job due to his medical condition. In Degraw v. Exide Technologies (10th Circuit February 20, 2012), the employee worked as a material handler and had a history of back problems predating his employment. He took FMLA leave on a number of occasions due to his non-work-related back problems.
Employers often find themselves in possession of medical information about their employees, particularly when making determinations regarding leaves of absence, disability accommodations, or when implementing employee wellness programs. Recent developments in federal law, however, and guidance from the EEOC have taught that the manner in which this information is maintained can be a ticking litigation time bomb if not diffused correctly.
Is a severely overweight employee entitled to accommodation rights and discrimination protections under federal law or would the employee need to show that he or she suffered from an underlying disorder that caused the obesity? Although courts have disagreed on this issue, a federal court this month ruled that severe obesity qualifies as a disability under federal law.
In 2008, the ADA was amended by the Americans with Disabilities Act Amendments Act (ADAAA). The corresponding EEOC regulations, effective in March 2011, expanded the coverage of the “regarded as” standard for determining whether an employee is considered disabled. The ADA covers individuals with a disability; those with a record of a disability; those who are perceived to have a disability; and those associated with someone with a disability. An individual may demonstrate he or she is disabled by establishing a mental or physical impairment that substantially limits a major life activity, a record of such an impairment, or being “regarded as” having such an impairment even though the person does not have an impairment.
For many years, FedEx employed a hard-of-hearing worker at Kennedy Airport who operated a “tug,” which is heavy machinery used to load and unload airplanes. After the employee committed a number of safety violations, FedEx required him to participate in a field test, devised by a FedEx safety committee to test the employee’s ability to hear co-workers under actual working conditions — on the tarmac and near airplanes with their engines running. The employee submitted to two field hearing tests. The safety officer who conducted the field hearing tests determined that the results were inconclusive. When the employee refused to participate in an additional field hearing test, his attorney suggested that he be transferred to another position that did not involve the operation of heavy machinery. FedEx complied, and the employee retained his former wage and benefits. Nevertheless, the employee sued FedEx in New York Federal District Court, claiming that FedEx discriminated against him due to his disability and that he was disadvantaged in his new job because it required more physical effort than operating the tug.
A federal appellate court agreed that a Tennessee employer may require workers to report their injuries more quickly than the 30-day time limit allowed under Tennessee’s workers’ compensation laws. (Geronimo v. Caterpillar Inc., 6th Cir. No. 09-6401, 9/7/11). The court rejected the employee’s claims of retaliation and wrongful discharge for terminating an employee for failing to report that she had symptoms of gradual-onset carpal tunnel syndrome. The case is encouraging for employers, because the court allowed the employer to enforce its time limitations, although the employee’s condition was based on a health condition that involved a gradual-onset of symptoms.
The EEOC has recently highlighted the significant legal risks that arise from an employer’s inflexible, one-size-fits-all application of certain employment policies. The EEOC has singled out two types of employment policies that are likely to draw its attention: (1) uniform job qualification requirements that permit no exceptions for applicants “regarded as” disabled, and (2) leave policies containing inflexible cut-off dates.
Everyone knows the Americans with Disabilities Act (ADA) prohibits employers from discriminating against employees because of their mental or physical disabilities. But did you know the ADA also prohibits discrimination against an employee based on the employee’s relationships or associations with a disabled person? This broad reach of the ADA provides yet an additional basis for disability discrimination lawsuits.
On March 24, 2011, the EEOC released the much-anticipated final regulations pertaining to the ADA Amendments Act (ADAAA), which was signed into law by President Bush in September 2008. These new regulations change much of the existing legal framework relating to disability law, and employers are well served to immediately review how these changes will affect their current practices.
The highlights of these new regulations — hot off the press — will be discussed during Foley’s latest Labor & Employment Inner Workings Web conference on April 18, 2011 at 11:30 CT. We will highlight the following changes to the ADAAA regulations and more, including the “regarded as” definition, major life activities redefined, and the nine new rules of construction.
Jack Lord is the Foley attorney responsible for the content of this program.
On March 24, 2011, the EEOC released the much-anticipated final regulations pertaining to the ADA Amendments Act (ADAAA), which was signed into law by President Bush in September 2008. These new regulations change much of the existing legal framework relating to disability law, and employers are well-served to have a heads up on how these changes will affect their current practices. The highlights of these new regulations, hot off the presses, are examined below — but be on the lookout for a more detailed review of the changes in upcoming editions of Legal News: Employment Law Update.
A grocery chain agreed to pay $3.2 million to settle 110 former employees’ lawsuits claiming that the company applied an inflexible, overly rigid policy regarding disability leave. The EEOC recently announced an Illinois federal court’s approval of the settlement agreement.
An employee’s mental state cannot always be explored in a lawsuit merely because the employee files a claim against the employer under the ADA. In Kronenberg v. Baker & McKenzie LLP, a law firm associate in Chicago brought suit against the firm after his employment was terminated upon his return from FMLA leave taken for a chronic degenerative spinal disc disorder. The employee alleged his repeated requests for a reasonable accommodation were ignored by the law firm, that he was unlawfully discharged, and that he was retaliated against in violation of the ADA. In his complaint, the former associate alleged the firm deprived him of equal opportunities by failing to accommodate his disability and sought reinstatement with appropriate accommodations, back pay, punitive damages, and attorney’s fees and costs.
Not infrequently, employees miss work claiming to have been ill, particularly during these winter months, and present vague doctors’ notes upon their return, causing supervisors to wonder if the employee was really out sick or instead took a paid “mental health day.” Occasionally however, an opposite scenario will occur — an employee insists on coming to work, even when he or she appears ill or to be experiencing a medical condition that potentially impairs the ability to adequately perform his or her job responsibilities. In such circumstances, employers may be concerned that the employee creates a risk of infection of other employees, or potentially worse depending on the employee’s job responsibilities.
A deaf employee asked for a sign language interpreter to be at all meetings he was required to attend as part of his job. The lawsuit the EEOC later filed is a reminder about how important it is to explore all potential options when presented with an accommodation request from an employee.
In EEOC v. Life Technologies, the employee asked his employer to provide such an interpreter for all meetings, but the employer only agreed to provide the interpreter at certain meetings. For meetings at which an interpreter was not provided, the employer gave the employee notes and handouts and the opportunity to have one-on-one meetings with his supervisor to ask questions through the exchange of notes. The employee was able to satisfactorily perform his duties with these more limited accommodations.
Not long ago, an employee who had been on medical leave for nearly six months reported that his restrictions were now “permanent.” The company terminated the employee because, given the restrictions, he could not perform the essential functions of his job. The employee sued the company, claiming it had violated the ADA by failing to reasonably accommodate his condition. In the lawsuit, the employee’s lawyer asked the company to answer the following question:
Please describe all efforts made to accommodate Plaintiff’s medical condition before discharging him.
This question is asked in every ADA lawsuit, and the job of the HR manager is to make sure there is a lot to talk about when it is time to answer this question. By illustration, here are two possible answers:
The ADA and its regulations generally prohibit an employer from requiring medical examinations or inquiring about the existence or severity of an employee’s disability. There are specific instances in which a medical examination of an employee may justified, and the ADA will allow an employer to require one. One of these exceptions is an employee fitness-for-duty examination.
A fitness-for-duty examination is intended to determine whether an employee is able to perform job-related functions. Under the ADA, an employer can require a fitness-for-duty examination only if it is job-related and consistent with business necessity. Often an employee’s job performance has already suffered as a result of a medical condition, which can show that a fitness-for-duty examination is a business necessity. However, as explained recently in Brownfield v. Yakima, Washington, an employer does not have to wait until an employee has done real harm or injury before ordering a fitness-for-duty examination.
In Brownfield, the city required a police officer to undergo a fitness-for-duty examination after he exhibited emotionally volatile behavior in the workplace. The officer was examined to determine whether he was fit for police duty and, after refusing to attend a follow-up exam, was terminated. In his lawsuit, the officer claimed the city violated the ADA by requiring him to undergo a fitness-for-duty exam because there was no evidence his medical condition had caused performance problems.
The court found that a “prophylactic psychological examination” in response to an employee’s erratic behavior can sometimes satisfy the business necessity requirement, particularly when an employee is engaged in dangerous work. The officer “swore at a superior after abruptly leaving a meeting despite a direct order to the contrary; he engaged in a loud argument with a co-worker and became extremely angry when he learned the incident was being investigated; he reported that his legs began shaking and he felt himself losing control during a traffic stop; his wife called police to report a domestic altercation with Brownfield; and he made several disturbing comments to a co-worker such as ‘it doesn’t matter how this ends.’” Based on the officer’s conduct, the court determined even though his behavior had not yet affected his job performance, the city had a legitimate basis to doubt his ability to perform his job duties as a police officer.
Employers have an obligation to maintain a safe workplace and also can potentially be held responsible for harm caused to people with whom their employees come into contact while performing their jobs. In extreme situations, when an employee has acted erratically or irrationally or demonstrated emotionally volatile behavior, an employer may be well served to require a fitness-for-duty examination as a preventative measure against potential harmful or injurious conduct. As cautioned by the court in Brownfield, this option must be balanced against overuse of fitness-for-duty examinations. An employee’s annoying or inefficient behavior is not enough to justify an exam — there must be genuine reason to doubt whether the employee can perform job-related functions. Decisions relating to fitness-for-duty examinations and other disability-related issues are very fact-specific and should always be determined on a case-by-case basis.