Tag Archives | disability discrimination

Tread carefully when it comes to pregnant employees and concerns about their health

By on September 1, 2010 in Our Blog

Earlier this month, the Sixth Circuit reversed the grant of summary judgment against a former employee who was transferred during her pregnancy due to concerns the employer had about her health.  In Spees v. James Marine Inc., Heather Spees was a welder who discovered she was pregnant shortly after starting her job.  At her supervisor’s request, she saw her physician to ascertain her ability to continue working.  He released her to work with no restrictions.  Nonetheless, her supervisor continued to have concerns about potential health risks to Spees, in part due to the physically demanding nature of the work, and in part due to the fact that two years prior Spees had suffered a miscarriage.  He opined that due to “common sense,” Spees should be transferred to a light-duty position.  She was therefore reassigned to work in the tool room, despite her desire to continue to weld.  Spees was then transferred to the night shift, where she worked until she was confined to bed rest due to complications related to the pregnancy.  She quickly exhausted her leave and was thereafter terminated.

Spees sued for pregnancy and disability discrimination, due to her transfer and subsequent termination.  The lower court granted the employer summary judgment on all counts.  While the Sixth Circuit upheld the grant of summary judgment with respect to the termination (based on leave exhaustion), it held Spees had viable claims relating to her transfer.  First, the supervisor’s statement that “common sense” trumped  Spees’s medical clearance to return to work was impermissible.  Further, it appeared the employer may have “regarded Spees as” disabled, due to her prior pregnancy complications.     

Make sure supervisors understand the rules when it comes to working with pregnant employees.  Even the benevolent employer who is trying to keep its employees safe can run afoul of the law.

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Medical marijuana – do employers need to accommodate?

By on June 3, 2010 in Our Blog

So far, the courts have responded with a resounding no. Most recently, the Oregon Supreme Court held that an employer can fire a worker for using medical marijuana, even if he is legally authorized by the state to use. In Emerald Steel Fabricators v. Bureau of Labor and Industries, John Doe argued that he was disabled within the meaning of Oregon law and that Emerald Steel failed to accommodate his disability. Doe suffered from a debilitating medical condition for which marijuana was prescribed to relieve symptoms. Emerald hired Doe as a temporary worker and wanted to hire him full-time. Knowing that he would have to take a drug test for a full-time position, Doe explained his condition and medical marijuana use to his boss, and was fired shortly thereafter.

While fourteen states and the District of Columbia have passed laws legalizing the possession of marijuana for certain medical purposes, marijuana is still illegal under federal law, and courts have been hesitant to force employers to tolerate illegal behavior.  Even the most liberal states are coming down on the side of employers. But beware…California is considering a ballot initiative that would prohibit employers from firing a person who tests positive for marijuana if he has a medical marijuana card. In the meantime, employers need to be aware of the issue and keep an eye on legislation and litigation.

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Does your return-to-work policy run afoul of the ADA?

By on December 3, 2009 in Our Blog

It is common for employers to have inflexible return-to-work policies that require employees to return to work immediately following the exhaustion of their workers’ compensation leaves, or else face termination.  But common does not mean legal; just ask the EEOC.  In September, the EEOC received a $62 million settlement from Sears, Roebuck and Co. for violating the Americans With Disabilities Act.  Sears utilized a workers’ compensation leave exhaustion policy whereby employees who failed to return to work upon the expiration of their leaves were summarily terminated.  The EEOC sued the retail giant, claiming it should have considered whether additional leave would have been a reasonable accommodation under the ADA.

According to Regional Attorney John Hendrickson of the EEOC’s Chicago District Office, “[t]he era of employers being able to inflexibly and universally apply a leave limits policy without seriously considering the reasonable accommodation requirements of the ADA are over.”  This settlement represents the biggest in EEOC history regarding the ADA.

Employers would be wise to review their leave policies in light of the EEOC’s stance.  If your policy is inflexible, change it now.  Even if it is not, make sure those who apply it understand their ADA obligations with respect to reasonable accommodations.  Manager training in this area is always a good idea.

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Single question to manager constitutes “protected activity” for purposes of retaliation claim

By on October 30, 2009 in Our Blog

When a manager in Loves Park, Illinois got into an argument with a subordinate over her failure to complete paperwork, the employee explained that she must not have heard the deadline correctly, as she is hearing-impaired.  Frustrated, the manager asked “How can you work when you cannot hear?”  The employee responded with a question of her own: “Aren’t you being discriminatory?”  That was enough, according to a recent Seventh Circuit decision, to trigger Title VII’s prohibition against retaliation.  When the employee was subsequently terminated, she sued for retaliation (as well as disability discrimination).  While the trial court kicked the case out on summary judgment, the Seventh Circuit reversed, instead ordering the case be tried.

Employee protections against retaliation are far-reaching.  They are among the most common — and most costly — types of employment-related claims.  Make sure your anti-harassment and discrimination policies cover retaliation, and make sure all managers are trained on this prevalent and sometimes counterintuitive area of the law.

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Employers Should Prepare Now for Flu Season

By on August 24, 2009 in Our Blog

The Centers for Disease Control and Prevention, anticipating a wider and more serious spread of the H1N1 flu this season, has released new guidelines (available at http://www.flu.gov/plan/workplaceplanning/guidance.html) to help businesses and employers prepare now for the impact seasonal and H1N1 flu could have on employers, employees and operations. 

The CDC recommends that employers take the following actions now:

  • Review or establish a flexible influenza pandemic plan and involve your employees in developing and reviewing your plan;
  • Conduct a focused discussion or exercise using your plan, to find out ahead of time whether the plan has gaps or problems that need to be corrected before flu season;
  • Have an understanding of your organization’s normal seasonal absenteeism rates and know how to monitor your personnel for any unusual increases in absenteeism through the fall and winter.
  • Engage state and local health department to confirm channels of communication and methods for dissemination of local outbreak information;
  • Allow sick workers to stay home without fear of losing their jobs;
  • Develop other flexible leave policies to allow workers to stay home to care for sick family members or for children if schools dismiss students or child care programs close;
  • Share your influenza pandemic plan with employees and explain what human resources policies, workplace and leave flexibilities, and pay and benefits will be available to them;
  • Share best practices with other businesses in your communities (especially those in your supply chain), chambers of commerce, and associations to improve community response efforts; and
  • Add a “button” to your company Web page or employee Web sites so employees can access the latest information on influenza: www.cdc.gov/widgets/ and www.cdc.gov/SocialMedia/Campaigns/H1N1/buttons.html

The guidelines also discuss the important components of an influenza pandemic plan and recommended employer responses for the upcoming flu season. As we wrote previously, however, employers should take care not to discriminate based on the virus. (The EEOC has cautioned against national origin and disability discrimination in the face of a flu pandemic.) Warren & Hays can help create a pandemic plan and appropriate responses to help employers maintain the highest level of productivity throughout the flu season.

swine flu

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