Tag Archives | ADA

When it comes to disabilities, don’t make assumptions

By on March 8, 2012 in Our Blog

Starbucks was recently reminded of this critical rule when it failed to even consider an accommodation for a job applicant.  The applicant wanted a barista job (the latte-makers behind the counter).  She had dwarfism and was thus very short.  She suggested she could do the job using a stool.  The interviewing manager, however, did not take her seriously and moved on to the next applicant.  When the EEOC got involved Starbucks claimed the applicant would pose a danger to customers and employees.  The EEOC proceeded to file an ADA lawsuit.  Starbucks, apparently seeing the error of its ways, quickly settled the suit and agreed to provide training on ADA procedures.

Assumptions about people’s disabilities will always get you into legal trouble.  Not to mention, they are just that – assumptions.  For all Starbucks knew, the applicant could have been the best cappuccino-creator it ever met.  One more point: supervisory employees typically do not know all the intricacies of the ADA.  Don’t expect them to.  Instead, educate them.

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Asking for a doctor’s note explaining a health-related absence can violate the ADA

By on February 23, 2012 in Our Blog

A federal district court recently held that an employer’s attendance policy — which required employees to provide a doctor’s note describing the nature of an absence — violates the Americans with Disabilities Act.  In EEOC v. Dillards, an employee missed a few days of work for health-related reasons.  Upon her return she provided her supervisor with doctor’s note simply stating she was unable to work; the note did not state the nature of the condition requiring time off.  In accordance with Dillard’s policy requiring more detail, the supervisor did not excuse the absences and the employee was then fired for excessive absenteeism.  Not ok under the ADA, held the court.

Dillard’s policy stated that a health-related absence would only be excused if the employee submitted a doctor’s note stating “the nature of the absence (such as migraine, high blood pressure, etc ….”  Dillard’s subsequently reaffirmed the policy, clarifying that the doctor’s note “must state the condition being treated.”  According to the court, this policy violates the ADA on its face, as it permits and even encourages  supervisors to make disability-related inquiries, which is prohibited by the ADA.

This case is noteworthy for a few reasons.  First, it is probably a common occurrence for well-intended supervisors to ask for such information to ensure employees are not abusing sick leave.  Or simply even to check up on employees by trying to show they care.  But, doing so is risky.  Because this is not an intuitive proposition, supervisory training is a must.  Second, the courts have not often weighed in on the ADA’s prohibition against disability-related inquiries.  So this case – even though it was decided in California – could impact employers everywhere.  Third, employers should pay attention to the fact that the EEOC took this case to trial.  As the agency has stated, it is placing a tremendous priority in pursuing potential ADA violations, in light of the ADA Amendments.

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Is obesity a disability under the ADA?

By on January 31, 2012 in Our Blog

We know that morbid obesity is on the rise across the U.S.  It follows that lawsuits alleging disability discrimination based on morbid obesity are also on the rise.  Other than in Michigan, though, being obese is not a protected category.  But a recent federal court decision held that severe obesity (defined as body weight 100% over normal weight) is covered by the ADA.  The EEOC takes the same view.  As case law continues to develop under the ADA Amendments Act, expect to see more agreement on this, as more and more physical conditions qualify for protection under the Act.  So play it safe and tread carefully when dealing with severely obese employees.

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EEOC Statistics for 2011: discrimination charges hit all-time high

By on January 30, 2012 in Our Blog

According to the EEOC it received just short of 100,000 charges of discrimination in 2011, the most ever.  It also collected over $455 million from private employers.  And, the Commission resolved more charges than it took in, demonstrating the productivity of its increased staff.  The most popular variety of charges?  Retaliation, followed closely by race discrimination.  Disability and age discrimination claims were on the rise, with alleged ADA violations resulting in the most monetary relief for claimants.  The EEOC also saw a fair share of cases under the Genetic Information Nondiscrimination Act (“GINA”) — 245, to be precise — though none of these charges have yet proceeded to litigation.

So what does all this mean for employers?  Now is not the time to let up on your legal compliance efforts.  If anything, double down on training your workforce (particularly supervisory level employees).  A couple of comprehensive sessions on preventing workplace discrimination and harassment are a great place to start.

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“But it’s unfair to other employees” not an excuse when it comes to reasonable accommodations

By on January 10, 2012 in Our Blog

Unlike most of the other employment discrimination laws, the ADAA (and its state counterparts) requires what some might consider preferential treatment for covered employees.  While many employers find this concept counterintuitive, a 2010 case (that I blogged about here) makes it clear.  The plaintiff in Colwell v. Rite Aid Corp. asked for a shift change as a reasonable accommodation.  The employer denied the request, claiming the change would be unfair to other employees.  Too bad, said the Third Circuit Court of Appeals in reversing a grant of summary judgment on the ADA failure to accommodate claim.

So what should an employer do when faced with a cry of “it’s not fair”?  First, remember to respect the privacy of the individual.  Not everyone needs to know why Susie needs an accommodation.  Second, make sure managers understand their obligations, so they can politely tell the inquirers that it’s none of their business.  Finally, keep your eye on the reasonable accommodations ball – the EEOC and the courts are doing just that.

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Why updating job descriptions is so important (hint: it’s the ADA Amendments)

By on December 15, 2011 in Our Blog

Updating job descriptions tends to be one of those tasks that always seems to sit on HR’s back burner.  But it’s more important now than ever, in light of the Amendments to the ADA. The Amendments, and the ensuing EEOC regulations interpreting them, significantly broadened the definition of what constitutes a disability under the ADA.  Thus, the focus is now on whether the employer reasonably accommodated the individual with a disability (whereas before, the focus was on whether the individual was covered by the Act in the first place).  A litmus test of this determination is whether the individual can perform the “essential job functions,” with or without a reasonable accommodation.  So how do courts decide what constitutes an essential job function?  You guessed it – job descriptions.  Courts give a tremendous amount of deference to employer’s job descriptions, and this can either work for you or against you, depending on how accurate your job descriptions are.

The task of updating job descriptions or even creating them from scratch can seem daunting.  Here are a few tips.  Talk to supervisors and employees, and observe the job in question, when drafting descriptions.  Also, be sure to include physical requirements (e.g., lifting, walking, standing, etc) and mental requirements (e.g., the ability to work productively in a loud factory environment).  List attendance requirements, including weekend and/or overtime work.  Still can’t imagine how you will get it done?  Call me – I can help.

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ADA issues creep up in the unlikeliest of places

By on December 12, 2011 in Our Blog

Many employers require applicants to have a high school diploma.  Could this be an ADA issue?  Yes, according to an informal discussion letter posted on the EEOC’s website earlier this month.  If an individual has a learning disability which prevents him or her from earning a high school diploma, a uniform requirement for such a diploma could violate the ADA.  As with all disabilities, according to the EEOC, a qualification standard that screens out certain individuals with disabilities must be “job related and consistent with business necessity.”  This standard can only be met if the diploma requirement accurately measures the applicant’s ability to perform the job in question.  Even if this standard is met, the employer has a second hurdle to jump, namely establishing that the individual could not perform the essential job functions even with an accommodation.  In other words, if an applicant could perform the essential functions of the job with a reasonable accommodation, the employer cannot discard the candidacy based on the lack of a diploma.

While an informal discussion letter does not carry the weight of law or regulation, it is noteworthy insofar as it demonstrates the EEOC’s position on the issue.  Do you have jobs that require a high school diploma?  If so, give them a close look to see if the requirement is really necessary.  If it is, be prepared to consider exceptions and accommodations based on the ADA.

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The ability to yell at a classroom: an essential job function in the Cleveland schools

By on November 28, 2011 in Our Blog

Last year’s ADA amendments broadened the definition of what constitutes a disability under the law, making it harder for employers to defend lawsuits.  But a recent Sixth Circuit decision reminds us that employers still have discretion in determining the essential functions of a job and whether a reasonable accommodation exists to perform those functions.  In Johnson v. Cleveland City School District, a teacher with cervical myelopathy, a condition with symptoms similar to those of a stroke, became unable to control her classroom.  In particular, she could no longer yell at students (referred to by the school as “verbally controlling resistant students”).  The court accepted the district’s argument that yelling during class was an essential function of the job.  It further deferred to the district’s decision to terminate Ms. Johnson, based on its determination that no reasonable accommodation existed.  Ms. Johnson’s insistence that she could control her classroom in some alternate way notwithstanding, the court gave the employer wide latitude in ascertaining how the job needed to be performed.

This case is good news for employers.  But, they need to remember that the key in dealing with employees with disabilities is engaging in the “interactive process” and trying to come up with a workable reasonable accommodation.  Here, the employer did just that.

 

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What does a picture perfect accommodation look like?

By on September 15, 2011 in Our Blog

ADA cases are so fact-specific it can sometimes be hard to make valuable generalizations.  When it comes to figuring out if a reasonable accommodation exists, though, it’s pretty safe to say it’s almost always about the process.  A recent Ninth Circuit case, FEHA v. Lucent Technologies, is a nice example of a process done right.

The case involved a product installer whose duties required physical strength and stamina (as was appropriately spelled out in his job description).  When the employee suffered a back injury at work, he received a year of paid leave under the employer’s policies.  He kept trying to come back to work, submitting various doctor’s notes stating he could come back with significant lifting restrictions.  Each time he contacted the company, his supervisors debated whether there was a position that could accommodate his limitations.  Each time, they concluded there was not.  Eventually, the employee underwent a couple of work-sponsored functional capacity examinations to determine his lifting abilities.  The results: he could not lift the requisite amount (per the job description).  Accordingly, he was terminated.

The Ninth Circuit — typically known for its employee-friendly stance — held the employer met its obligations under the ADA (and state law) because it interacted with the employee, time and time again, to determine whether there was a position that could accommodate his restrictions.

The case is good news for employers who grapple with accommodation issues, as it demonstrates that at some point, enough is enough and you can terminate.  The key is to not pull the trigger too soon and to engage in a comprehensive interactive process first.

 

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No-fault is a no no

By on September 13, 2011 in Our Blog

But you already knew that, right?  Hopefully this post simply serves as a timely reminder.  Why timely?  Because as Jon Hyman over at the Ohio Employment Law Blog points out, disability claims have got the EEOC’s attention, big time.  And sometimes, the preferred reasonable accommodation of the Commission (and the courts) is additional leave.

No fault attendance policies basically state that after a certain number of absences, regardless of the reason, the employee will be terminated.  These types of policies used to be very common.  Now, though, they are extremely problematic under the ADA.  Say an employee is absent due to a physical or mental disability.  Before counting that absence against him or her, the employer needs to consider whether a reasonable accommodation can enable the employee to perform the essential job duties.  Maybe, the employee just needs more time off without worrying about being fired as he or she tends to the disability.

This is a tricky area because it is rife for employee abuse.  At the same time, it’s a potential legal landmine for employers.  If in doubt, check with your employment counsel.

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When employees prepare to return from leaves of absence: what can you say?

By on January 19, 2011 in Our Blog

It’s common for employers to tell employees that upon returning from a medical leave of absence, whether covered by the FMLA or otherwise, they need to be ready to return “without restriction” or for “full duty.”  According to the EEOC, these terms may well run afoul of the ADA, as they do not leave room for employees requiring reasonable accommodations.  Instead, employers should advise that returning employees must be able to perform the essential functions of their jobs, with or without an accommodation.

This may seem like a minor technicality, but an employer who failed to do so recently settled a lawsuit with the EEOC for over $3 million.  So take the time now to check your return-to-work paperwork.  The EEOC (not to mention plaintiff’s lawyers) may be watching.

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When a co-worker is disabled: helping employees interact

By on January 14, 2011 in Our Blog

It’s relatively easy to spout off about the legal do’s and don’ts when it comes to dealing with employees with disabilities (well, easy may be the wrong word, but you catch my drift).  But what about the day-to-day interactions between co-workers?  Are your employees equipped with knowledge that will make for smooth, comfortable interactions?  Most likely, most employees have had little or no interaction with disabled individuals.  A little practical training on appropriate communication skills can go a long way. 

Here are just a few examples.  When talking with an employee with a mobility impairment, it is generally best to converse at that person’s eye level.  Employees should be mindful of the person’s personal space as well (meaning don’t touch their wheelchair or other assistive device).  When first meeting an employee with a disability, it is appropriate to offer to shake hands.  When speaking with a visually impaired person, employees should identify themselves by name at the beginning of the conversation and tell the person when they are leaving.  When communicating with a deaf person, employees should speak clearly and at a normal volume, and keep their hands away from their faces.  If an interpreter is present, they should speak to the deaf person, not the interpreter.

Training should direct employees to focus on what the individual with a disability can do, as opposed to what they can’t do.  Just a small amount of education can go a long way to building respect and harmony in the workplace.

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Sixth Circuit: requested accommodation must enable employee to perform essential job functions

By on January 11, 2011 in Our Blog

Last month, the Sixth Circuit upheld the dismissal of an ADA lawsuit filed by a medical resident with Asperger’s syndrome.  In Jakubowski v. Christ Hospital, the plaintiff struggled with his communication and organizational skills.  Accordingly, he was informed his residency was being terminated.  Shortly thereafter, he was diagnosed with Asperger’s syndrome, and requested the defendant hospital accommodate him by increasing the knowledge and understanding of the doctors and nurses who worked with the plaintiff.  The hospital refused, saying it lacked the resources to do so, but offered to help the plaintiff obtain a residency in a field that did not require patient interaction.  The plaintiff sued under the ADA.

The court noted that the requested accommodation would not have helped the plaintiff perform the essential functions of his job.  Accordingly, he was not “qualified,” as defined by the ADA.  The court also noted it was persuaded by the hospital’s expressed concerns over patient safety with respect to the plaintiff.  

The moral of the story is a good one for employers.  Not all accommodations work, and not all requests need to be granted.  Still, employers must engage in the interactive process.

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The Arizona shootings and your workplace

By on January 10, 2011 in Our Blog

Saturday morning, outside a grocery store in Tucson, Arizona, a lone 22-year old college dropout opened fire at a town meeting held by Congresswoman Gabrielle Giffords, killing six bystanders and wounding twenty others, including Rep. Giffords, whom he shot in the head.  The tragedy has captured the national spotlight, as authorities try to put together the pieces of this grizzly puzzle.  As human beings, we all stop to reflect and keep the victims and their loved ones in our thoughts.  As employers, there is another layer to think about.

How do you prevent such a tragedy from unfolding in your workplace?  There are two legal angles here.  The first is workplace violence prevention.  Have a policy in place, and train on it.  Make sure upper management has an idea of how to deal with a violent outburst (this can be as simple as appointing specific people to contact the police, etc.  Just have a discussion about it, for starters.)  The second issue is how to deal with an individual who threatens violence.  This involves an analysis of the ADA’s “direct threat” provision.  In a nutshell, if an employee poses a direct threat in the workplace, the employer does not need to retain that employee.  For an excellent and thorough analysis of this legal point, see Jon Hyman’s post on this topic. 

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Arizona legalizes use of medical marijuana

By on November 30, 2010 in Our Blog

In a post earlier this month, we wondered about the applicability of the ADA to employees’ use of medical marijuana.  The issue has become a lot starker for Arizona employers, with the recent passage of the Medical Marijuana Act.  The law provides that citizens can apply for an identification card from the state’s Department for Health Services, which, if granted, permits the card holder to obtain the drug for medical use.  It specifically addresses the employment relationship, providing that employers cannot discriminate against registered card holders, unless the employer would lose a monetary benefit under federal law if it did not discriminate.  So, for example, if an employee tests positive on a drug test, the employer cannot simply terminate the employee, but rather must ascertain whether the employee is a registered card holder.  If she is, she cannot be terminated.  The law does not protect marijuana use in the workplace, however.  If you have operations in Arizona, check with counsel for more specifics to make sure you’re in compliance.

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EEOC lawsuit alleges overweight employee was protected by the ADA

By on November 17, 2010 in Our Blog

In July we predicted the EEOC might pursue weight-based discrimination as being prohibited by the Genetic Information Nondiscrimination Act (“GINA”).  Well, the recent lawsuit filed by the EEOC against Resources for Human Development (“RHD”), a national non-profit human services organization, shows we had the right idea, but thought about the wrong law.  In its suit, the EEOC alleges RHD fired childcare worker Lisa Harrison because she was obese, thereby violating the ADA.  According to the EEOC, the termination was based on RHD’s erroneous perception that Harrison was unable to perform her job due to her weight.  Remember that perceiving someone as disabled is just as illegal as treating someone adversely because of an actual disability under the ADA.

Prior to the ADA amendments, case law had pretty much established that obesity was not a covered disability.  But, as we all know by now, the amendments changed the landscape considerably.  It’s also worth noting that Ms. Harrison passed away prior to the filing of the lawsuit.  The fact that the EEOC is moving forward with its claim shows it wants to make a point: obesity can be a covered disability under the ADA.  Stay tuned; we’ll be watching this one closely.

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Do employers need to permit use of medical marijuana?

By on November 9, 2010 in Our Blog

The rising lawfulness of medical marijuana raises an interesting issue for employers, at least those in states that  permit use of the drug.  Currently, fourteen states and the District of Columbia fall into this category (Ohio is not one of them, in case you were wondering).  Do employers need to allow employees to smoke pot as a reasonable accommodation under the amended ADA?  While no court has ruled on this issue yet, there is currently a lawsuit pending in Colorado over an employer’s firing of an employee who, while he did not smoke pot at work, admittedly smoked during non-working hours as a way to manage the pain he experienced resulting from an accident that rendered him paralyzed and wheelchair-bound.  Brandon Coats is suing his former employer Dish Network over the termination.  

While I doubt a court would ever hold that an employer needs to permit the use of marijuana in the workplace, I’m not so sure when it comes to after-hours use that does not impact work performance (except in a positive way), as is allegedly the case with Mr. Coats.  This area will certainly continue to develop, as the push to legalize marijuana marches on.

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“Ministerial exception” does not apply to ADA claim against religious school

By on September 28, 2010 in Our Blog

In EEOC v. Hosanna-Tabor Evangelical Church and School, the Sixth Circuit permitted the plaintiff’s disability discrimination claim to proceed.  Cheryl Perich taught third and fourth grade at defendant’s school.  She suffered from narcolepsy, and took a leave of absence related to the condition.  When she was cleared to return to work, the school expressed concern about her ability to safely take care of her students.  In response, Ms. Perich vowed to assert her legal rights to be free from discrimination.  The school then charged Ms. Perich with insubordination and terminated her.  When the EEOC subsequently filed suit for disability discrimination and retaliation, the school defended on the grounds that the anti-discrimination laws did not apply to it based on its status as a religious institution.

The ADA, like all federal civil rights laws, contains a religious exemption, which allows religious institutions to give “preference in employment to individuals of a particular religion” and to “require that all applicants and employees conform to the religious tenets of such organization.”  According to the court, this exemption was inapplicable, as this case did not implicate Ms. Perich’s religion.  The employer also pointed to the “Ministerial Exception,” a First Amendment rule that provides a safe harbor for religious institutions to make employment decisions free from judicial intrusion.  But for the exception to apply, not only must the employer be a religious institution, but the employee must also be “ministerial.”  Here, Ms. Perich taught largely secular subjects.  Accordingly, the exception was unavailable to the employer.  The court was not persuaded by Ms. Perich’s title as a commissioned minister.  Rather, her actual duties controlled.

The lesson: if you are a religious institution trying to take advantage of the ministerial exception, do so with care, and with advice of counsel.

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Reasonable accommodations: an employer’s duty to ensure their effectiveness

By on September 15, 2010 in Our Blog

We all know that under the ADA, an employer has a duty to provide reasonable accommodations to individuals with disabilities.  We also know that the ADA amendments have shifted the focus away from whether an individual has a qualified disability (it’s generally safe to assume that most impairments now qualify) to whether the employer provided an appropriate reasonable accommodation.  (See The Ohio Employer’s Law Blog’s recent post on a case highlighting this issue).  The interactive process, whereby the employer discusses potential accommodations with the employee, has thus taken center stage in ADA litigation. A recent Ninth Circuit case demonstrates just how prolonged this process may need to be.

In EEOC v. UPS Supply Chain Solutions, a deaf employee requested a sign language interpreter for staff meetings.  While UPS denied this request, it provided a note taker for the employee.  It also provided an interpreter for certain specific events.  But the employee was not satisfied with this accommodation.  As a result, he refused to attend staff meetings, and was subsequently disciplined for insubordination.  The EEOC later sued on his behalf, claiming UPS failed to appropriately accommodate him.  A lower court dismissed the case, but the Ninth Circuit reinstated it.

The court described the interactive process as an ongoing dialogue between employer and employee that continues beyond the original provision of an accommodation.  It stated it is incumbent upon the employer to continue to monitor the effectiveness of an accommodation.

This is an extremely broad holding that very well may not apply to other circuits, such as the Sixth.  The case does remind us all, though, that the ADA analysis has shifted to reasonable accommodations and the interactive process.  It is imperative that employers train their supervisors on this issue.

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Did you know? Associational discrimination under the ADA

By on September 7, 2010 in Our Blog

Under the Americans with Disabilities Act, it is illegal to discriminate against someone because of their association with an individual with a disability.  Typically, this means an employee’s family member, though a familial relationship is not necessary to state a viable claim.  The EEOC published guidance on this provision of the ADA, explaining that its purpose is to prohibit employers from using stereotypes about employees who associate with people with disabilities.  It would be illegal, for example, for an employer to transfer an employee to a less desirable position based on the assumption that the employee — who recently gave birth to a child with a disability — would not be able to handle her original position.

Employers should note that the ADA does not require employers to provide reasonable accommodations to employees who associate with a person with a disability.  However, such employees should be treated the same as other employees.  In addition, employers must provide such employees with the same access to health insurance coverage as other employees.  Again, though, additional coverage is not required.

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ADA anniversary approaches

By on July 19, 2010 in Our Blog

On Thursday July 22, 2010, the EEOC will observe the twenty year anniversary of the Americans With Disabilities Act.  The agency will host a panel discussion, “Celebrating the ADA — Looking Back, Moving Forward.”  The ADA Amendments Act of 2008, which dramatically expanded the scope of the law, will be one of the main topics.  

This celebration of the law’s passage — and its attendant increased enforcement efforts — serves as a timely reminder for all employers to make sure they have the tools in place to ensure ADA compliance.  Have your supervisors been trained on the law’s requirements?  Do they know how to spot and respond to requests for reasonable accommodations?  Is there a centralized person or department that reviews and responds to such requests?  If you have not answered “yes” to each of these questions, there is no time like the present to step up your compliance.  (And as always, Warren & Hays can help.)

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The ADA and your EAP

By on June 22, 2010 in Our Blog

The Americans with Disabilities Act (ADA) Amendments Act of 2008 broadened the definition of being “regarded as” having a disability.  Accordingly, employers need to take extra care not to inadvertently step into a “regarded as” claim by making statements indicating they perceive an individual as disabled.

One common trap for the unwary employer is discussions with employees concerning its employee assistance program (EAP).  Many employers offer EAPs, wherein employees may seek counseling or other assistance for issues ranging from substance abuse to emotional or behavioral problems to simple stress management.  It can be a wonderful resource for employees.  The key for employers is making sure they avoid making reference to potential mental or physical disabilities.  

Supervisors can, and sometimes should, remind employees of the availability of the EAP.  They can refer to the EAP as a resource for helping employees solve workplace or other problems.  But they should not get any more specific than that (don’t say, e.g., “the EAP can help you get a handle on your depression”).    

Supervisory training can be an excellent way to teach the do’s and don’ts of navigating the ADA in its  expanded form.  Stay tuned for another upcoming post on dealing with the accommodation process.

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Shift change to assist employee with commute can be part of employer’s duty to accommodate

By on May 13, 2010 in Our Blog

Last month, a federal appeals court sent a case that had been dismissed in the employer’s favor back to court for a jury trial.  In Colwell v. Rite Aid Corp., the Third Circuit Court of Appeals reversed a grant of summary judgment on an ADA failure to accommodate claim.  Ms. Colwell, a cashier at the drug store, typically worked an evening shift.  Several months into her employment, she was diagnosed with a retinal condition that eventually left her blind in one eye.  Therefore, she requested her shift be changed to daytime hours, as she could no longer safely drive at night.  Her supervisor denied this request, claiming to do so would be unfair to other employees with more seniority.  Ms. Colwell eventually quit, stating in her resignation letter that she had been treated unfairly.  She received no response.  Thereafter, she sued for (among other things), a failure to accommodate under the ADA.

The district court granted Rite Aid summary judgment, holding that the duty to accommodate did not extend beyond the four corners of the workplace.  Since Ms. Colwell could perform her actual job duties without an accommodation, it reasoned, there was no failure to accommodate.  Not so, according to the Third Circuit.  The duty to reasonably accommodate can extend to an employee’s commute as well.  

Two things about this case strike me as important for employers.  First, be very, very careful when it comes to responding to requests for accommodation.  Make sure supervisors understand how to spot such requests, and to pass them up the chain-of-command so they may be adequately analyzed and reviewed.  Second, when an employee states in a resignation letter that she has been treated unfairly, don’t ignore it!  Get counsel involved early.  Doing so may avoid the cost and headache of a full-blown lawsuit later on.

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Non-disabled individual can sue under the ADA for improper medical inquiry

By on April 19, 2010 in Our Blog

Earlier this year, the Eleventh Circuit court of appeals held that a non-disabled individual can sue a prospective employer for making an improper medical inquiry during the hiring process.  In a case of first impression, the court joined a number of other circuits in permitting the plaintiff’s claim to proceed to a jury trial.  (The Sixth Circuit, which covers Ohio, has not yet faced this issue).

In Harrison v. Benchmark Electronics Huntsville, the plaintiff was a temporary employee seeking a full-time position. He underwent a drug screening, which came back positive.  In discussing the results with the company’s medical review officer (“MRO”), the plaintiff revealed he had epilepsy and treated his condition with prescribed barbituates.  The MRO asked more questions, including how long the plaintiff had epilepsy, what type of medication he took, and in what dosages.  This conversation occurred in front of the plaintiff’s supervisor, and he was subsequently denied regular employment.

The district court found the plaintiff’s medical condition did not constitute a “disability” under the ADA, and the appellate court did not take issue with this finding.  The problem, according to the court, was the extent of the MRO’s questions about the plaintiff’s medical condition.  He simply went too far, thereby running afoul of the ADA’s proscription against medical inquiries.

This case serves as a useful reminder to train all supervisors and HR professionals about the limits on what medical inquiries they may make of applicants and employees, whether or not they are disabled.

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Employer’s demand for a medical exam does not violate the ADA where there are safety concerns

By on March 30, 2010 in Our Blog

The Sixth Circuit recently held that an employer’s demand for a medical exam does not constitute an adverse employment action under the Americans With Disabilities Act (“ADA”) where the employer has legitimate safety concerns.  In James v. Goodyear Tire & Rubber Co., the plaintiff suffered from multiple sclerosis.  His condition got progressively worse, to the point where he had to hold on to machinery for support, co-workers had to help him perform his duties, and he needed to be driven between workstations.  His employer insisted he get a medical exam to determine his fitness for duty.  Rather than submit to the exam, the plaintiff retired and then sued under the ADA.

In assessing the plaintiff’s claim, the court concluded the employer’s actions fell under the “direct-threat” provision of the statute, which permits employers to assess whether and to what degree an employee poses a threat to his or her own safety, as well as the safety of others.  In short, if there is good reason to believe an employee cannot safely perform the job, the employer may require a medical exam, without running afoul of the ADA.  

While this case smacks of common sense, it is a noteworthy decision for employers, as common sense does not always carry the day when it comes to the ADA.

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