Tag Archives | ADA

Calling an employee a “liability” can create liability

The employer in the recent Sixth Circuit case of Demyanovich v. Cadon Plating and Coatings just learned this, when the court sent the plaintiff’s case to a jury trial.  Pithiness aside, this FMLA/ADA case holds some important lessons for employers.  The employee in question suffered from congestive heart failure, necessitating numerous leaves of absence.  When he came back from his most recent leave, he requested light duty work and that he not be assigned overtime.  Denying both requests, the employer’s Vice President told the employee he was a “liability.”  When the employee sought an additional leave of absence, the VP stated he did not have to grant any FMLA leave, as the employer did not have enough employees to be subject to the Act’s requirements.  Thereafter, the employee was terminated for excessive absenteeism.

While the trial court granted summary judgment on the FMLA and ADA claims, the Sixth Circuit reversed on both.  With respect to the applicability of the FMLA, the court noted the employer was affiliated with a much larger company and therefore was a “joint employer” for purposes of the FMLA.  Regarding the ADA claim, the employer’s summary rejection of the requests for accommodations was enough to permit the plaintiff to proceed to trial.

Takeaways:  (1) even if you don’t think the FMLA applies to your workplace, check with counsel to be absolutely sure; (2) always engage in the interactive process when it comes to requests for reasonable accommodations.

 

 

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Who determines the “essential functions” of a job? The Sixth Circuit weighs in

In Rorrer v. City of Stow, the Sixth Circuit reversed a trial court’s dismissal of an ADA claim filed by a firefighter who lost vision in one eye.  Rorrer was terminated based on the employer’s assertion that he could no longer perform the essential functions of his job, namely driving an emergency vehicle.  The trial court credited the employer’s assertion that driving a fire truck was an “essential function.”  But the Sixth Circuit noted that under the relevant EEOC regulations:

[t]he employer’s determination about what functions are essential is certainly given weight, but it is one of seven factors the court should consider, including ‘[t]he amount of time spent on the job performing the function’ and ‘[t]he consequences of not requiring the [employee] to perform the function.’  The district court appears not only to have given deference to the City’s position, but to have considered only the City’s position, failing to consider all of the § 1630.2 factors while drawing all reasonable inferences in Rorrer’s favor as required at the summary judgment stage.”

(To see the regulations listing the determining factors for essential functions, see here).  According to the court, there was conflicting evidence about whether the ability to drive a fire truck was really essential or could have been assigned to someone else.  Because the trial court failed to consider all of this evidence, the case is being sent back (and reassigned to a new judge, which is almost unheard of).

What does this case mean for employers?  Before you take adverse action against someone who you believe cannot perform the essential functions of the job in question, think long and hard about what the essential functions are and how you determined them.  And, it can’t hurt to check with counsel.

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(Photo credit HR Insights blog)

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Accommodating mental disabilities: a great example of what to do

Earlier this month a federal court in Florida granted summary judgment to an employer on an ADA claim.  In Mecca v. Fla. Health Services, Dan Mecca was employed as a Peripherally Inserted Central Catheter (“PICC”) nurse.  His job involved inserting IV catheters into patients’ veins, typically in their arms, and threading them through the veins until the tip of the catether rested near their hearts.  As even this cursory explanation makes clear, it’s a job requiring precision and a lot of care; risks of infection can be high.

Mecca suffered from panic attacks and anxiety.  His employer granted him several leaves of absence under the FMLA (alas, we know the FMLA and ADA often intersect in these kinds of situations).  It also granted additional schedule changes on various occasions to accommodate his symptoms.  When Mecca returned from his last leave of absence on a reduced schedule basis, he failed to perform his duties.  His first day back he ignored multiple requests to assists patients.  He also left work early, without authorization.  So when HR told him he would face disciplinary action, he resigned and sued for discrimination under the ADA (among other things).

In dismissing Mecca’s claims, the court recognized what a fine job the employer did in accommodating Mecca.  It made several scheduling changes and allowed numerous leaves.  In the end, Mecca basically wanted to come and go as he pleased, without repercussions.  Not a reasonable accommodation, per the court.

Mental disabilities can be tricky issues to navigate.  The employer here got it right by making multiple accommodations in an effort to enable Mecca to be successful in his job.  When it finally put its foot down (or was about to, when Mecca resigned), it was for legitimate performance reasons.

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Think a temporary disability isn’t covered by the ADA? Think again.

It used to be almost black letter law that a temporary disability (e.g., a broken bone) did not qualify as a disability under the Americans with Disabilities Act (“ADA”).  Thus, if an employee couldn’t work because of such a temporary impairment, the employer had no obligation to reasonably accommodate or engage in the interactive process.  But then came the ADA Amendments Act of 2008 (“ADAAA”), which greatly expanded the definition of a disability.  The legislative changes were meant to shift the focus from whether an employee had a “disability” to whether the employer made or attempted to make a reasonable accommodation.  Judging from a Fourth Circuit case decided last week, mission accomplished.

In Summers v. Altarum Institute, the court found in favor of an employee who was rendered incapacitated by an accident.  He broke both legs and damaged numerous tendons.  His anticipated recovery time was seven months.  The employee sought to work from home during his recuperation.  Instead of considering the accommodation or otherwise engaging in the interactive process, the employer canned him.

The lower court bought the employer’s argument that the employee was not protected by the ADA due to the temporary nature of his disability.  But confirming a sea change in the post-ADAAA world, the appellate court reversed.  It noted, though, that not all temporary impairments will trigger ADA coverage; they must be “sufficiently severe.”  The employee in this case met the threshold sufficient to allow the case to proceed.

Takeaway: Beware the ADAAA – it covers far more than the original ADA did.  Make sure your supervisors understand the changes and know how to react to requests for reasonable accommodations.

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What to tell employees when they complain about “preferential” treatment (i.e., reasonable accommodations for other employees)

Not much.  Employees are not entitled to know what other employees are going through in terms of ADA-qualifying issues.  Some disabilities are obvious, but for those that are not, there is simply no right to know.  I’ve counseled many employers who don’t know how to respond to employee complaints that others are receiving what they perceive as preferential treatment.  If the so-called preference is really just a reasonable accommodation under the ADA, employers should be careful not to divulge confidential information.

A recent case shows how an employer walked this line just right.  In Lichty v. Allina Health, a nurse who returned from FMLA leave had lifting restrictions. Co-workers complained that she wasn’t doing her fair share.  The employer responded by telling the co-workers that accommodations were private and they were simply complying with legal requirements.  Smart move, because when the nurse later sued over her performance-based termination, the court tossed the case.

Also note that if the co-workers had engaged in harassing behavior towards the nurse based on the accommodation or the FMLA leave, the employer would have had an obligation to stop the harassment.

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What the EEOC has to say about “integrity tests”

Integrity tests are personality tests used by employers to assess the tendency of applicants to be honest, trustworthy and reliable.  Reasonable expectations for prospective employers to have, right?  Yes, but beware the tests’ potential intersection with the anti-discrimination laws.  The EEOC recently weighed in, albeit informally, to offer employers some guidance.

A company that conducts such tests for third parties recently asked the EEOC to comment on the lawfulness of certain questions.  The test at issue asked applicants: (1) to describe their current use of methamphetamines; (2) to describe their current use of illegal, non-prescription drugs while at work; and (3) whether they would “take things from their employer without permission to get even if they felt that the employer (either the company or their boss) was treating them unfairly.”  The EEOC answered that the test questions are acceptable because they “do not ask applicants to disclose their arrest or conviction history,” the employer may ask applicants about current illegal drug use or illegal use of non-prescription drugs at work, and there is no preclusion under Title VII about asking hypothetical questions about how an applicant may react in a situation involving illegal activity.  This is good news for employers wanting to dig a little deeper into applicants’ so-called integrity.

But don’t be lulled into thinking all such tests are ok by the agency.  As the EEOC explained, an employer may violate Title VII if the evidence shows that a test was “designed, intended, or used” to discriminate against certain applicants based on protected characteristics (i.e., disparate treatment), or if the test results are used to screen out certain applicants in protected categories (i.e., disparate impact).

Practice pointer?  If you use these tests, run them by counsel to make sure you’re not running afoul of Title VII, the ADA, or other laws.

 

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Is providing an employee an isolated work environment a “reasonable accommodation”?

Not according to the Fifth Circuit in the recent case of Sapp v. Donoh0e.  Sapp was a U.S. postal service supervisor.  However, she had a hard time playing well with others.  She frequently got into arguments with co-workers as well as subordinates.  After being diagnosed with depression, anxiety and a panic disorder, she requested to work in isolation, away from both subordinates and supervisors.  The postal service refused her request, precipitating a claim of failure to accommodate under the Rehabilitation Act (which mirrors the ADA in most respects).

The Fifth Circuit affirmed summary judgment for the postal service.  The employer was entitled to its position that interacting with both superiors and subordinates was an essential job function.  The court noted that Ms. Sapp offered no evidence of an available position that would meet her desired restrictions.

This last point is worthy of mention, as the court did not make a blanket rule.  It did not rule out the possibility that an employee in Sapp’s position could make out a failure to accommodate claim, if the facts lined up just right (i.e., there was an available position for which she was qualified that would meet her request).  Remember, these reasonable accommodation cases are intensely fact specific.  It’s a mistake to count on hard and fast rules.  But this case does suggest some instructive guidelines for employers, and reasonable ones at that.

 

 

 

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Pretext: the litigation dirty word

Every employer’s nightmare: you fire someone for a performance problem or a policy violation.  She sues alleging some kind of unlawful discrimination.  Adding fuel to the fire, she drudges up some evidence that your stated reason for termination may not have been the real reason — i.e., pretext.  Next thing you know it’s hello jury, buh-bye dollars.

PEC Management in Pennsylvania just learned this the hard way.  It terminated manager Theresa Buffington from one of its Burger King Stores after she asked a non-managerial employee to run errands for her.  Apparently this was a policy no-no, so PEC fired Buffington.  Wouldn’t you know it, there was more to the story.  Buffington’s teenage son had cancer; she missed work over the years to care for him.  [I hope that little red light is going off in your heads: danger, the ADA is at play here, as its "association provision" covers those associated with an individual with a disability, though they themselves may have no impairment].

In the ensuing litigation Buffington introduced the following evidence: the policy prohibiting non-managerial employees from running errands during work time was not strictly enforced; Buffington’s manager made comments about how much work time she missed to care for her son; Buffington’s performance reviews were uniformly stellar.

The result?  A jury finding of over $200,000.

Prevention tips:  Get your story straight on termination decisions.  Make sure there is no issue of pretext floating around.  This means checking performance documentation and the consistency of policy enforcement.  And make sure all supervisory employees understand how broad the anti-discrimination protections really are.

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Who determines the essential functions of a job for purposes of the ADA?

It’s ADA 101 that employers need to provide reasonable accommodations to employees with disabilities to enable them to perform the essential functions of the job.  But who determines the essential functions?  A recent case shows that fortunately, it’s the employer who gets to make this assessment.

In Vraniskoska v. Franciscan Communities, Inc., the plaintiff had an injured wrist and was no longer able to push a linen cart.  Pushing the cart was a part of her daily duties, but it only took about 15 minutes a day.  The plaintiff argued she should be relieved of this duty based on her injury, as a reasonable accommodation.  The employer terminated her and later claimed she did not fit within the statute’s protections, as she could not perform this “essential function” of her job, with or without a reasonable accommodation.  The court agreed with the employer.  Despite the short period of time it took to complete this job duty, it was up to the employer, not the employee, to set the job’s essential functions.

This is good news for employers.  But to avail yourself of the benefits of this decision, make sure to engage in the interactive process and be clear about essential functions.

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Navy Yard shooter’s supervisors knew of mental health issues

Last weekend the New York Times ran a big story detailing who knew what and when about the mental health, or lack thereof, of Navy Yard shooter Aaron Alexis.  Alexis killed twelve people in a shooting rampage in September.  About a month before the shootings, Alexis’s mother told his supervisors that he had a history of paranoid episodes and needed therapy.  But according to an internal company investigation, his employer did nothing.

What could/should his employer have done?  It’s a tricky area, as on the one hand, Alexis presumably would have been covered by the ADA and perhaps entitled to a reasonable accommodation.  On the other hand, his paranoia posed a tremendous safety risk.  Is the employer in such a scenario forced to sit between the proverbial rock and hard place?  Thankfully, no.

The analysis should have been as follows: Assume Alexis was covered by the ADA.  BUT, there was enough information to be concerned about the safety of Alexis and others.  THUS, the question should have been whether he posed a “direct threat.”

Fortunately for employers, the direct threat analysis under the ADA provides an exemption to the duty to reasonably accommodate.  If an employee poses a direct threat (to his or her own safety or the safety of others), the employer does not need to keep the employee for fear of violating the ADA.  How can an employer ascertain whether an employee does, in fact, pose a direct threat?  By looking at reasonable medical judgment, or by looking at the best available objective evidence.  That means at least looking into the issue.  Sending the employee for a medical examination (at the employer’s cost), or taking some affirmative steps to assess the threat.  In the Navy Yard case, it appears the employer took none of these steps.

If you have an employee who might pose a danger to the workplace, please take it seriously and explore your options.  Consider the direct threat analysis.  Train your managers to spot these issues.  And contact counsel or your favorite HR consultant.

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And the ADA accommodation cases just keep coming

The EEOC just announced a settlement with Creative Networks, a Phoenix-based company that provides services for the disabled (you can see the irony coming, can’t you?).  Creative Networks had a policy of denying hearing-impaired and deaf applicants’ requests for ASL (American Sign Language) interpreting services during pre-employment orientation and training.  Creative Networks did, however, offer applicants $200 toward the cost of the ASL services.  Still, the cost of the services far exceeded that amount, and the company admitted it had the resources to pay the full cost.

At trial, the court held Creative Networks failed to accommodate applicants as a matter of law.  It also violated the ADA when it refused to hire applicants who could not complete their orientation and training due to not being provided ASL services.

This is an interesting case in that it gets right to the heart of what it means to reasonably accommodate, particularly where the question is one of cost.  Employers have a duty to make (i.e., pay for) for reasonable accommodations unless they can show an undue burden.  You might think offering to pay $200 towards ASL services shows a good faith effort to comply with this legal mandate.  But you would be wrong.

The undue burden analysis is a tricky one.  Courts and agencies take it case by case.  But if you are claiming not to be able to afford an accommodation, you should make pretty darn sure the numbers back you up.

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Does the ADA’s duty to reasonably accommodate extend to helping employees get to work?

Yes it can, according to a case decided by the Fifth Circuit today.  In Feist v. State of Louisiana, the court held the employer had a duty to provide a reserved parking space to an employee.  The employer’s argument was that the plaintiff was only entitled to reasonable accommodations to help her perform the “essential functions” of her job.  Getting to work was not, it argued, an essential function.  The court looked to the EEOC regulations for guidance in answering the employer’s claim.  According to those regulations, accommodations are necessary not only to help an employee perform his or her essential job functions, but also to allow him or her “to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities.”  Thus, the plaintiff’s request for a reserved parking space was arguably reasonable, per the ADA.

Takeaway: don’t be too quick in denying requests for reasonable accommodations.  The EEOC and courts tend to take a broad view of your obligation.

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Training must: make sure your managers know they need to talk to employees about potential ADA accommodations

The ADA requires that employers engage in the “interactive process” with employees who seek reasonable accommodations under the law.  Of course, employees are not necessarily entitled to their accommodation of choice, but they are entitled to have a discussion about possible accommodations.  This discussion, aka the interactive process, is one of the first things courts, juries, and the EEOC look for in assessing ADA claims.

Seems pretty straightforward, right?  Then why do so many employers continue to get tripped up on this?  Witness two EEOC cases filed in the past couple of weeks, one against KMart and the other against an Arkansas car dealer.  The crux of each is that the employer failed to discuss possible accommodations with the employees in question.

Who exactly is the “employer” in these suits (and in most lawsuits and claims we see)?  It’s your managers.  Those are the people on the front lines of enforcing, or failing to enforce, your legal obligations.

The solution is simple.  TRAIN.  Frequently.  Clearly.  With a subject matter expert.  (Moi?  Why yes, this is exactly what I do).

[Hat Tip to Jon Hyman at the Ohio Employer's Law Blog]

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What to do if you suspect an employee of lying about a medical condition

It happens all the time, right?  Someone calls off sick, or takes an FMLA leave, or requests an accommodation under the ADA, and you’re not quite sure you believe them.  You may have great reason to be suspicious, and it’s indeed true that employees sometimes game the system.  But, how you handle your suspicions can make all the difference.

Consider the case of William Hepner, a registered nurse who hurt his back on the job.  He went on a medical leave of absence.  His employer learned that during the leave, William ran a 10K race.  Convinced this was solid proof that William was faking his injury to obtain time away from work, it fired him.  Seems appropriate and logical, yes?  As you might have guessed, William sued for disability discrimination.  He produced evidence showing that running was actually part of his treatment plan for his bulging discs.  That’s enough, said the court, for William to try his luck with a jury.

What should William’s employer have done?  Sought information from William about the injury and the race.  Asked him about the perceived inconsistency.  It would have saved a lot of time and money, as well as the unpleasant prospect of facing a jury.  So if you find yourself in a similar situation, slow down and seek more information from the employee.  Don’t make a hasty termination decision that could cost you.

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Lying on job applications – a solid grounds for dismissal

The Third Circuit recently reaffirmed this principle in Robert Reilly v. Lehigh Valley Hospital.  When Reilly applied for a job as a security guard, he had to complete a form about his health.  In it, he denied ever being diagnosed with or treated for alcoholism or drug addiction.  During his employment Reilly suffered a work-related injury and had to go to the hospital’s emergency room.  While there he disclosed  his history of narcotics use.  HR got wind of this information and terminated Reilly’s employment, based on his dishonesty on the job application and related forms.

Reilly sued the hospital, claiming his termination violated the ADA.  The lower court disagreed and the Third Circuit affirmed the case’s dismissal.

Takeaway: While the court ruled in the employer’s favor, I think this is a tricky case given the medical information involved.  Check with counsel before taking such a step.  And include language on the application that lying is grounds for later termination.

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Are you ready for some . . . . .disability discrimination?

According to the sports agent of Kyle Love, a former defensive tackle for the New England Patriots, Love was recently cut from the team.  Why?  Because he was diagnosed with Type 2 diabetes.  Again according to his agent, Love is still fully capable of performing his duties (as are many other professional athletes with diabetes).  Will Love complain to the EEOC or the Massachusetts Commission Against Discrimination (MCAD)?  Time will tell.  It certainly seems like a potentially viable claim to me.

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EEOC statistics confirm the ADAAA’s impact

The Americans with Disabilities Amendment Act of 2008 (ADAAA) breathed new life into the ADA by dramatically expanding the definition of “disability.”  As HR folks are no doubt aware, the emphasis has shifted to the question of reasonable accommodations and away from the question of whether an employee is disabled to begin with.  The EEOC’s settlements between Congress deliberating the ADAAA and the end of 2012 reveal this trend clearly.  Here are a couple of examples:

Settlements related to claims of disability discrimination based on anxiety disorders went from 1.6 million in 2007 to 6.4 million in 2012.  Settlements related to claims of discrimination based on cardiovascular impairments went from 1.6 million in 20076 to 4.5 million in 2012.  The list goes on and on, and the upward trend is obvious.

So what does this mean to you?  Make sure you have a clear process in place for handling requests for reasonable accommodations.  Add an accommodation policy to your handbook.  Don’t let supervisors make these calls on an individual basis.  Centralize the process, and TRAIN supervisors on spotting and responding to these issues.

 

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Phobia of young children as a basis for ADA claim?

Really.  Maria Waltherr-Willard, a Cincinnati school district french and spanish teacher, resigned after 35 years of teaching after she was transferred from the high school to the junior high.  The reason?  She has a rare phobia of young children (pedophobia, in case you were wondering).  Teaching children of junior high school age triggers anxiety, chest pains, vomiting, and elevated blood pressure for Ms. Waltherr-Willard, according to her doctors.  She is fine, though, around high school age children.  The suit alleges the school district failed to accommodate her disability by refusing to reassign her back to the high school.  While this seems to be one of those cases that leaves us scratching our heads, it will be interesting to see what the court does with her ADA claims.  Especially in light of the ADA Amendments Act, which broadly expands the definition of disabilities.  Stay tuned.

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Word to the wise: Centralize ADA accommodations decision-making

The first step to ensuring compliance with the ADA is making sure supervisors understand the duty to provide reasonable accommodations.  Step two?  Centralize the decision-making process when it comes to handling accommodation requests.  The last thing you want is supervisors making their own individualized determinations about how to respond to such requests.  If they do, you can be sure you will run into problems (consistency being only one of them).

A recent Ohio case proves this point.  In Peirano v. Momentive Specialty Chemicals, the plaintiff requested accommodations for irritable bowel syndrome and colitis.  In particular, she asked for a flexible start time and more frequent restroom breaks.  Following her close-in-time termination for poor performance, the employer stood by the supervisor, who had wanted her to call in — from the bathroom, where it was suggested she keep a clock and a phone — if she would be late due to her condition.  The court was not crazy about this accommodation.  Making an employee call in from the toilet?  Not reasonable (at least, a jury could so find).  Presumably (hopefully at least), had HR been involved, the accommodation process would have been handled differently.

Takeaway: make sure the right hand knows what the left is doing.  Even well-meaning and educated supervisors will have a hard time navigating the accommodation waters.  So don’t ask them to.

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ADA news: Court upholds termination of deaf employee

The Tenth Circuit recently upheld the firing of a deaf employee who cold not perform the essential functions of her job.  The employee worked at The Picture People, where a critical part of her job was communicating with customers.  She communicated by writing notes and gesturing.  A new supervisor deemed her communications “awkward, cumbersome, and impractical.”  She was eventually terminated.  The EEOC sued on her behalf, claiming the employer should have allowed her to communicate nonverbally with customers as a reasonable accommodation.  The court found, and the Tenth Circuit agreed, that the employee could not establish she was qualified for the position, with or without a reasonable accommodation.  It bought the employer’s argument that strong verbal communication skills were essential.

I have to admit – I’m a little surprised by this case.  But the employer did a very good job explaining why it considered verbal communication skills to be an essential job function.  It was listed in the job description and based on a particularized analysis of the job in question (which involved efficiently recruiting and registering customers for photo shoots and instructing young children during the shoots).  In short, the employer showed the requirement was job-related, consistent with business necessity, and uniformly applied.

This is definitely one of those situations where a call to counsel is critical.  Don’t make these “close calls” on your own.  I can easily picture another court going the other way on this one.

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It still feels like summer, but winter will be here soon . . .

and that means you may have employees suffering from seasonal affective disorder.  In case you don’t know, SAD (so dubbed by the Diagnostic and Statistical Manual of Mental Disorders, aka DSM IV) is a kind of depression that strikes only at certain times of year.  People can actually have it during any season, even summer, though it typically occurs during the cold, gray winter months.  What does this have to do with HR?  Be on the lookout for requests for reasonable accommodations.

A jury recently held, and the Seventh Circuit affirmed, that a school district in Wisconsin violated the ADA by refusing to transfer a teacher with SAD to a classroom with external windows, which she claimed would help relieve her symptoms.  To support her request, the plaintiff submitted a doctor’s note indicating that natural light was critical to her recovery.  See Ekstrand v. School District of Somerset.  

Does this mean anytime an employee cries SAD you need to provide a workspace with natural light?  Not necessarily, depending on the circumstances.  But you should definitely be engaging in the interactive process and talking with counsel before you deny such a request.

 

 

 

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Employers must reassign disabled workers to vacant positions, per the Seventh Circuit

Last week the Seventh Circuit reinstated a case brought by the EEOC against United Airlines.  The case stemmed from a United policy that provided employees who could not longer perform their jobs to a disability could be considered for (but not automatically given) vacant positions for which they were qualified.  The policy further provided for any such employees to be given “preferential treatment” in the selection process.  The EEOC’s challenge was based on its belief that United had to actually place disabled employees in these jobs to comply with the ADA; preferential treatment was not enough.  The Seventh Circuit agreed, holding the only way for an employer to avoid doing so was to establish an “undue burden.”

The Seventh Circuit joins two other Circuits with this holding (the Tenth and D.C. Circuits).  The upshot for employers is, if an employee can no longer perform his or her job due to a disability, see if you have any vacant spots that meet their physical limitations.  If so, the safest bet is to offer those positions.

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Think the ability to work overtime is an “essential job function”? Better make sure.

Earlier this week the Seventh Circuit Court of Appeals sent an ADA case to a jury.  In Feldman v. Olin, the plaintiff was diagnosed with fibromyalgia.  To deal with the pain and fatigue, his doctor limited him to working straight shifts only (meaning no overtime).   The employer accommodated this request for a couple of years.  But then it realigned the workforce and turned the plaintiff’s shift into a rotating one that required overtime on a regular basis.  When the plaintiff could no longer perform it (two weeks into the job), he was laid off.

Per the Seventh Circuit, a jury will decide whether the ability to work overtime was an essential job function.  The employer insisted it was, but the court noted that the plaintiff’s job description contained no such requirement.

Takeaway: If you need employees to be able to work overtime or nights, make sure you say so in their job descriptions.

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Have the ADA Amendments increased disability discrimination lawsuits? You betcha!

According to a recent article in the Washington Times, the number of lawsuits filed under the ADA has nearly doubled in the past five years and has seen a sharp uptick in recent months.  As us HR-types know all too well, the ADA Amendments Act of 2008 drastically broadened the definition of “disability” under the Act.  The result, not surprisingly, is a “flood” of new claims, many of them baseless.  Last year, for example, the EEOC determined the highest number of charges had “no reasonable cause.”  According to the U.S. Chamber of Commerce Executive Director Mike Eastman, “employers are facing a barrage of frivolous cases, and each one costs $30-, $40-, $50,000.”

With these somewhat terrifying figures in mind, employers would be wise to be proactive on this one.  Check your policy on reasonable accommodations.  Is it good enough?  Are there any potential pitfalls during the hiring process (such as requiring a high school diploma, a la an EEOC letter drafted in December)?  And are managers trained on understanding these rules and at least spotting potential disability-related issues?  If not, what are you waiting for?

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When it comes to disabilities, don’t make assumptions

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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