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Category: Disability Discrimination

Sunday, May 02, 2010

3rd Cir. Addresses ADA Claims Based on Side Effects of Medication

In Sulima v. Tobyhanna Army Depot et al., No. 08-4684 (3d Cir. Apr. 12, 2010), the Third Circuit addressed when an employee may bring suit under the Americans with Disabilities Act (ADA) based on conditions caused by medication. Employee Ed Sulima needed more time than most employees for restroom breaks. How much time you ask? Well, on one day in 2008 he spent approximately two hours in the restroom in one shift! While Mr. Sulima was morbidly obese and suffered from sleep apnea, these conditions did not create his bathroom issues. Instead, the culprit was Mr. Sulima’s weight loss medication.

So, are Mr. Sulima’s medication-induced gastrointestinal problems a disability under the ADA? It turns out they are not. But more importantly, the side effects from treatment and medication can constitute a disability under the three-prong test utilized by the Court in Sulima:

(1) the treatment is required “in the prudent judgment of the medical profession,”

(2) the treatment is not just an “attractive option,” and

(3) that the treatment is not required solely in anticipation of an impairment resulting from the plaintiff’s voluntary choices.

This test was first laid out by the Seventh Circuit in Christian v. St. Anthony Medical Center, Inc., 117 F.3d 1051 (7th Cir. 1997). It is now the test in the Third Circuit as well.

In Mr. Sulima’s case, his medication was not “required in the prudent judgment of the medical profession” as evidenced by the fact that his doctor took him off the medication when learning of the side effects.

Other Issues
Sulima included a few additional interesting tidbits. First, in addition to addressing whether Mr. Sulima had an actual disability, the Court also analyzed whether he was “regarded as” having a disability. He was not. His employer knew his problems were side effects of medication and Mr. Sulima explained to them that his medication could be changed.

Second, Mr. Sulima argued that he was retaliated against for requesting an accommodation under the ADA. This does not require an actual disability but does require a “reasonable, good faith belief that [he] was entitled to request the reasonable accommodation [he] requested.” The Court found that Mr. Sulima lacked this “good faith belief” because he knew his condition was temporary and that he could change medications.

Finally, the Court applied the “old ADA” and not the new ADA Amendments Act (ADAAA). The Court did not analyze the issue, noting only that “[t]he parties here have not argued that these amendments have retroactive effect.”

Submitted by:
Philip K. Miles III, esq., McQuaide Blasko
Publisher of Lawffice Space

Posted by Philip Miles on 05/02 at 02:49 PM
Disability DiscriminationEmployment Law
Wednesday, July 01, 2009

EEOC Votes to Amend ADA Regulations

As reported here, the ADA was significantly amended effective January 1, 2009.

The amendment emphasizes that the definition of disability should be construed in favor of broad coverage of individuals to the maximum extent permitted by the terms of the ADA and generally shall not require extensive analysis.

The amendment made changes to the definition of the term “disability,” making it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the ADA.

On June 17, 2009, the Commission voted to begin the process of drafting new ADA regulations, updated to match the statutory amendment. The EEOC did not specify when the proposed regulations will be published for review and comment. Expect to wait several months.

Expect the new regulations to better define to what extent a physical or mental condition must limit the ability to engage in major life activities in order to qualify as an ADA disability.

The EEOC notice can be found here.

Submitted by:
Christopher W. Olmsted, Esq.
Barker Olmsted & Barnier, APLC

Posted by Christopher W. Olmsted on 07/01 at 12:20 AM
Disability DiscriminationEmployment Law
Thursday, May 14, 2009

More EEOC Commentary on Swine Flu: “ADA-Compliant Employer Preparedness For the H1N1 Flu Virus”

There is an additional web page on the EEOC’s website addressing ADA issues related to employer preparedness for epidemics such as swine flu:

ADA-Compliant Employer Preparedness For the H1N1 Flu Virus

Submitted by:
Christopher W. Olmsted, Esq.
Barker Olmsted & Barnier, APLC



Posted by Christopher W. Olmsted on 05/14 at 11:23 PM
Disability DiscriminationEmployment Law
Tuesday, May 12, 2009

EEOC Says: Avoid Swine Flu Discrimination Like The Plague

The EEOC has warned employers to avoid swine flu discrimination. Really? Swine flu discrimination? Did the EEOC sneak in a new protected class?

Well, not exactly. On May 11th the EEOC published on its website a short comment titled “Employment Discrimination and the 2009 H1N1 Flu Virus (Swine Flu).” The EEOC suggests that employers should refrain from national origin discrimination against Mexicans.

In other words, employers should refrain from making employment decisions based merely on the fact that an individual hails from Mexico. For example, refusing to hire individuals of Mexican origin because of a belief that Mexicans may be ill with swine flu could run afoul of Title VII, not because of swine flu, but because of the nationality factor.

Presumably a neutral swine flu policy would pass muster. A neutral policy that requires any infected individuals, regardless of national origin, to take a leave of absence would probably not violate Title VII. The EEOC’s website would be more helpful to employers if it addressed appropriate neutral policies.

On the swine flu web page, the EEOC also cites the Americans With Disabilities Act (ADA). The EEOC does not expressly state, however, that swine flu would qualify as a disability under the ADA. Again, perhaps the EEOC could help employers by elucidating on this issue.

In most cases a temporary sickness such as the flu will not qualify as a disability. Nevertheless, the EEOC points to its publications addressing disability-related inquiries and medical examinations, as will as pre-hire questions and medical exams.

It is conceivable that employers could delve into medical issues in connection with victims of swine flu, say, perhaps, in connection with an FMLA or other leave of absence. As may be the case whenever employers address medical concerns, medical inquiries associated with swine flu cases should be handled with care. Keep the inquiries narrowly tailored to focus job-related issues. Avoid deviating into a general fitness for duty examination that might inappropriately evaluate disabilities. Avoid singling out protected classes. Maintain confidentiality.

As the nation’s attention is fixed on this topic of public health, the EEOC has appropriately suggested that EEO practices may be implicated. The substance of the comments are a little thin, doubtless due to the spontaneity of the outbreak. Perhaps the EEOC will develop guidelines in preparation for future outbreaks.

Submitted by:
Christopher W. Olmsted, Esq.
Barker Olmsted & Barnier, APLC

Thursday, April 16, 2009

EEOC’s Proposed GINA Regulations Limit ADA Inquiries

The Genetic Information Nondiscrimination Act (“GINA”), which becomes effective on November 21, 2009 prohibits employers from acquiring genetic information about its employees, with certain exceptions. (Follow this link for a summary: Summary of GINA.)

The law will require employers to change their current practices regarding the acquisition of medical information. Practices that have been permissible under the ADA will no longer be permissible on account of GINA. The EEOC’s recently published proposed regulations make this challenge apparent.

GINA includes a broad definition of “genetic information.” It includes not only the results of genetic testing, but also information regarding the manifestation of disease in family members. Family medical histories are often found in medical records. It is lawful, under the ADA, to acquire medical information regarding employees, post-hire. Such information may also be acquired in the context of the reasonable accommodation process, or a fitness for duty process.

The EEOC’s proposed regulations state that genetic information inadvertently obtained as part of an ADA accommodation does not violate GINA. “An individual provides genetic information as part of documentation to support a request for reasonable accommodation under Federal, State, or local law, as long as the covered entity’s request for such documentation is lawful.”

Unless the information is truly provided inadvertently, the employer will violate GINA. According to commentary for proposed regulations, an employer “that asks for family medical history or other genetic information as part of an inquiry or medical examination related to an applicant’s or employee’s manifested disease, disorder, or pathological condition will not be considered to have acquired such information inadvertently.”

GINA and the proposed regulations will prohibit practices previously allowed under the ADA. The comments to the proposed regulations state: “Thus, even though the ADA allows an employer to require a medical examination of all employees to whom it has offered a particular job, for example, to determine whether they have heart disease that would affect their ability to perform a physically demanding job, GINA would prohibit inquiries about family medical history of heart disease as part of such an examination. Such a limitation will not affect an employer’s ability to use a post-offer medical examination for the limited purpose of determining an applicant’s current ability to perform a job.”

The commentary continues: “[Employers] should ensure that any medical inquiries they make or any medical examinations they require are modified so as to comply with the requirements of GINA. In particular, we note that at present, the ADA permits employers to obtain medical information, including genetic information, from post-offer job applicants. As we interpret GINA, this will change on the November 21, 2009 effective date of Title II of GINA: Employers no longer will be permitted to obtain any genetic information, including family medical history, from post-offer applicants. Employers will likewise be prohibited from obtaining this type of information through any type of medical examination required of employees for the purpose of determining continuing fitness for duty.”

The comment period for the EEOC’s proposed regulations ends on May 21, 2009. The proposed regulations can be found at this link: EEOC Proposed GINA Regulations

Submitted by:
Christopher W. Olmsted, Esq.
Barker Olmsted & Barnier, APLC

Posted by Christopher W. Olmsted on 04/16 at 11:49 PM
Disability DiscriminationEmployment Law
Friday, September 19, 2008

House Passes Bill Amending ADA

The U.S. House of Representatives passed legislation on Wednesday significantly amending the federal Americans with Disabilities Act.

The House vote follows the recent approval in the Senate. The bill will now go to President Bush. He is expected to sign the legislation.

Proponents of the bill have argued that U.S. Supreme Court decisions in the last decade have eroded rights of disabled workers.

As quoted in a House of Representatives press release: “The Americans with Disabilities Act guaranteed that workers with disabilities would be judged on their merits and not on an employer’s prejudices. But, court rulings since the law’s enactment have dramatically limited the ability of people with disabilities to seek justice under the law,” said Rep. George Miller (D-CA), chairman of the House Education and Labor Committee. “Today we make it absolutely clear that the Americans with Disabilities Act protects anyone who faces discrimination on the basis of a disability.”

Some of the more significant changes:

<u>Expanded Definition of Major Life Activities</u>

A disability is a physical or mental condition that substantially limits a “major life activity.” The ADA currently does not include a definition of “major life activities.” The EEOC regulations provide examples, and these are incorporated into the ADA by the amendment: “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.” Most courts have followed the EEOC regulations and therefore this part of the amendment does not represent a major change.

However, the amendment adds “major bodily functions” such as “functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.” This could lead to a substantial expansion of workers considered disabled under federal law, as it could potentially include conditions such as high blood pressure, asthma, and other conditions not traditionally viewed as disabilities.

<u>Disregard of Mitigating Measures</u> 

U.S. Supreme Court decisions have held that mitigating measures, such as prosthetic devices, should be taken into account when determining whether the workers are disabled. For example, Sutton v. United Airlines, Inc., 527 U.S. 471 (1999), involved myopic twin sisters who were rejected for employment by an airline because of their poor vision, although their vision was correctable with prescription lenses. The airline’s policy required “uncorrected visual acuity” at a certain level, which the sisters did not have. The Supreme Court held that because the sisters’ vision was correctable, they did not satisfy the ADA definition of “disability” and therefore could not make out a claim for discrimination.

The ADA amendment rejects the Supreme Court’s interpretation of the ADA. Now, a worker may qualify as disabled under the ADA without regard to corrective measures such as medication, equipment, or appliances, low-vision devices (which do not include ordinary eyeglasses or contact lenses), prosthetics including limbs and devices, hearing aids and cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy equipment and supplies; use of assistive technology; reasonable accommodations or auxiliary aids or services; or learned behavioral or adaptive neurological modifications.

<u>Inclusion of Condition in Remission</u> 

The amendment expands the definition of disability include a condition that is in remission or that is episodic, if it would substantially limit a major life activity when active.

<u>“Substantially Limits” Liberalized</u>

A disability must “substantially limit” a major life activity. The Supreme Court and the EEOC has set a high standard for “substantially limits.” An individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives. The ADA amendment rejects this standard.

But the amendment creates a definitional vacuum. The amendment does not provide an alternative definition. It merely states that the existing definition is invalid, and the ADA should be interpreted under a looser standard. Earlier versions of the legislation included a definition, but the definition was deleted as a compromise in order to pass the bill.

<u>“Regarded As” Restricted</u>

The ADA protects workers who, while not actually disabled, are regarded as disabled by the employer.  The amendment excludes from “regarded as” claims minor/transitory conditions lasting six months or less.

It will be some time before the effects of the ADA amendment can be gauged. Undoubtedly, there will be a period of uncertainty while employers seek to comply with the new standards. An increase in federal disability law litigation is inevitable. The EEOC may issue new regulations or guides, which may help employers comply with the new standards.

In some states, a more liberal definition of disability is already in place. For example, the law in California, under the Fair Employment and Housing Act, already includes many of the provisions found in the ADA amendment.

Employers should continue to monitor developments in ADA law and look for compliance advice in the coming months before the law becomes effective on January 1, 2009.

Text of the ADA amendment can be found here.

Submitted by:
Christopher W. Olmsted
Barker Olmsted & Barnier, APLC

Tuesday, September 09, 2008

New EEOC Publication Addresses Thorny ADA Issues

What happens when an employee with a mental disability misbehaves in the workplace? If the mental disability causes the employee to misbehave and violate workplace conduct rules, can the employer discipline the employee?

The EEOC has tackled this thorny ADA question, and many others, in a new publication titled: “The Americans With Disabilities Act: Applying Performance And Conduct Standards To Employees With Disabilities.”

An EEOC press release acknowledges that employers struggle greatly with the ADA’s vague proscriptions and mandates. “The EEOC continues to receive numerous questions on these topics from employers and from individuals with disabilities, indicating that there is still a high level of uncertainty about how the ADA affects these fundamental personnel issues. This document will serve a critical need and enhance compliance with the ADA.”

According to the new guide, the ADA permits employers to apply the same performance standards to all employees, including those with disabilities, and emphasizes that the ADA does not affect an employer’s right to hold all employees to basic conduct standards, notes the press release.  “At the same time,” cautions the EEOC, “employers must make reasonable accommodations that enable individuals with disabilities to meet performance and conduct standards.”

For example, the EEOC provides the following hypothetical example:

Steve, a new bank teller, barks, shouts, utters nonsensical phrases, and makes other noises that are so loud and frequent that they distract other tellers and cause them to make errors in their work. Customers also hear Steve’s vocal tics, and several of them speak to Donna, the bank manager. Donna discusses the issue with Steve and he explains that he has Tourette Syndrome, a neurological disorder characterized by involuntary, rapid, sudden movements or vocalizations that occur repeatedly. Steve explains that while he could control the tics sufficiently during the job interview, he cannot control them throughout the work day; nor can he modulate his voice to speak more softly when these tics occur. Donna lets Steve continue working for another two weeks, but she receives more complaints from customers and other tellers who, working in close proximity to Steve, continue to have difficulty processing transactions. Although Steve is able to perform his basic bank teller accounting duties, Donna terminates Steve because his behavior is not compatible with performing the essential function of serving customers and his vocal tics are unduly disruptive to coworkers. Steve’s termination is permissible because it is job-related and consistent with business necessity to require that bank tellers be able to (1) conduct themselves in an appropriate manner when serving customers and (2) refrain from interfering with the ability of coworkers to perform their jobs. Further, because Steve never performed the essential functions of his job satisfactorily, the bank did not have to consider reassigning him as a reasonable accommodation.

Employers addressing day-to-day personnel issues are often left guessing about the ADA’s ill-defined requirements. The EEOC’s guide does a laudable job providing specific examples and straightforward answers to questions. The explanation and examples regarding disciplining ADA employees are particularly helpful.

Other topics addressed include issues related to attendance, dress codes, and drug and alcohol use, and the circumstances in which employers can ask questions about an employee’s disability when performance or conduct problems occur.

Employers should carefully study the EEOC’s new publication. However, keep in mind that the courts have the final say on the ADA, and the judiciary is not bound to follow the EEOC’s guidance. For example, in Gambini v. Total Renal Care, Inc. dba DaVita, 486 F.3d 1087 (Wash. 2007), an employee was terminated for making violent outbursts at work. She claimed that it was caused by her bipolar disorder. The Ninth Circuit reversed a lower court decision, finding that the outbursts were protected ADA conduct. For more details on this case, click here.

Submitted by:
Christopher W. Olmsted
Barker Olmsted & Barnier, APLC

Thursday, August 14, 2008

Cal Supreme Court Lets Stand Key Disability Ruling

The California Supreme Court denied a petition for review in a case titled Arteage v. Brink’s Incorporated, letting stand an appellate court ruling that circumscribed the definition of “disability” under California law.

Defining the term “disability” under California law is a very important issue, and California employers ought to pay careful attention to the definition. Unlike the federal ADA, California’s FEHA has a very broad definition of disability. Until the Arteaga appellate opinion, now left untouched by the California Supreme Court, courts have not focused much on whether particular physical conditions do or do not qualify as disabilities.

FEHA is explicitly and unabashedly liberal—it says so right in the text of the statute. As stated in the FEHA: “The law of this state contains broad definitions of physical disability, mental disability, and medical condition. It is the intent of the Legislature that the definitions of physical disability and mental disability be construed so that applicants and employees are protected from discrimination due to an actual or perceived physical or mental impairment that is disabling, potentially disabling, or perceived as disabling or potentially disabling.” “The provisions of [the FEHA] shall be construed liberally for the accomplishment of [its] purposes . . . .”

FEHA fulfills its liberal aspirations in the definition of “disability.” Under the FEHA, “physical disability” includes having a physiological disease, disorder, or condition that, by affecting the neurological or musculoskeletal body systems, special sense organs or skin, “limits” a “major life activity.” The key word is “limits.” It is very broad, and is contrasted with the federal ADA, which requires a “substantial” limitation. “Limits” is synonymous with making the achievement of a major life activity “difficult.”

Management attorneys and HR experts have long lamented this broad definition. They are heard to complain that just about any condition can make life difficult. They say that it is too easy to allege disability discrimination.

The appellate court in this case tackled the definition head on. The court began by considering what the “baseline” for “difficult” should be. “In deciding whether [the employees’] limitations . . . make them ‘disabled’ under FEHA, the proper comparative baseline is either the individual without the impairment in question or the average unimpaired person.”

For example, one could look at an employee with a 25 percent reduction of former capacity to lift, or an employee who lost approximately 50% of her pre-injury capacity for manual tasks. Additionally, one could look to the normal or average population. For example, in considering whether a disability caused difficulty with tasks such as dressing and sleeping, one can look to whether most people can perform those tasks without difficulty.

Turning to Arteaga, the appellate court examined his claim of pain symptoms. Arteaga did not have an actual disability while employed by Brink’s because his symptoms did not make the performance of his job duties difficult as compared to his unimpaired state or to a normal or average baseline.

By denying the petition for review, the California Supreme Court has given implicit approval of the appellate court’s disability definition. It is also notable that the Court denied a motion to “depublish” the lower court’s opinion. If the opinion had been depublished, it could not be cited as a precedent in future cases. The Supreme Court’s decision to preserve the precedential authority of the lower court opinion adds weight to the assumption that the Supreme Court approves of the opinion. 

For a more complete analysis of the appellate court decision, click here.

Submitted by
Christopher W. Olmsted
Barker Olmsted & Barnier, APLC

Thursday, May 22, 2008

President Signs Genetic Information Nondiscrimination Act

On May 21st, President Bush signed The Genetic Information Nondiscrimination Act of 2008 (“GINA”) into law. According to the National Institutes of Health’s National Human Genome Research Institute, “GINA protects Americans from being treated unfairly because of differences in their DNA that may affect their health. The new law prevents discrimination from health insurers and employers.” (Click here for more NIH comments.)

The new law is the culmination of a decade-long debate and a series of legislative efforts to deal with the specter of genetic discrimination. Supporters of the law cited a few instances of genetic discrimination, but not widespread abuse.

GINA prohibits employers from discriminating against employees on the basis of genetic information.

The term “genetic information” means information about (i) an employee’s genetic tests, (ii) the genetic tests of family members of an employee, and (iii) the manifestation of a disease or disorder in family members of an employee.

Employers are prohibited from acquiring genetic information, with certain exceptions. Some exceptions include: (1) where an employer inadvertently requests or requires family medical history of the employee or family member of the employee; (2) indirectly, as part of a wellness program; (3) as part of an FMLA medical certification; (4) where the information involved is to be used for genetic monitoring of the biological effects of toxic substances in the workplace; and in a few limited other circumstances.

In the event that an employer does acquire genetic information, the new law requires strict confidentiality, in the manner dictated by the ADA.

Employees who violate GINA will be vulnerable to employee lawsuits and government agency enforcement actions.

Employer advocates complain about the litigation provisions. They have also voiced concerns that GINA further complicates the confusing maze of state and federal medical privacy laws, as well as the numerous state genetic nondiscrimination laws.

Employers and legal counsel have ample time to evaluate the impact. The parts of the law relating to health insurers will take effect by May 2009, and those relating to employers will take effect by November 2009.

According to the NIH, “the law was needed to help ease concerns about discrimination that might keep some people from getting genetic tests that could benefit their health. The law also enables people to take part in research studies without fear that their DNA information might be used against them in health insurance or the workplace.”

Although there are no reports of widespread genetic discrimination, employee medical exams are common. As reported by the AP here, “a 2001 study by the American Management Association showed that nearly two-thirds of major U.S. companies require medical examinations of new hires. Fourteen percent conduct tests for susceptibility to workplace hazards, 3 percent for breast and colon cancer, and 1 percent for sickle cell anemia, while 20 percent collect information about family medical history.”

During the next 18 months, undoubtedly employment law attorneys and HR experts will distill the new law and offer compliance advice. To get a head start, read the text of GINA here.

Submitted by:
Christopher W. Olmsted
Barker Olmsted & Barnier, APLC

Saturday, February 10, 2007

Ninth Circuit Explains “Regarded As” Claims under ADA and Rehab. Act

An employer’s acknowledgement that an employee has an “impairment” is not enough to support a claim that the employee is “regarded as” having a disability.
Walton v. U.S. Marshall Service involves a former security guard at a federal courthouse. The essential functions of the job include the ability to “localize” sound. Walton had only one functioning ear, which affected her ability to localize sound. After a required medical exam, the security services contractor terminated Walton’s employment because she could not perform essential functions of her job. She claimed the contractor “regarded” her as having a disability.
The Ninth Circuit held:

to state a “regarded as” claim a plaintiff must establish that the employer
believes that the plaintiff has some impairment, and provide evidence that the
employer subjectively believes that the plaintiff is substantially limited in a
major life activity. If the plaintiff does not have direct evidence of the
employer’s subjective belief that the plaintiff is substantially limited in a
major life activity, the plaintiff must further provide evidence that the
impairment imputed to the plaintiff is, objectively, a substantially limiting

Applying this rule, the Court of Appeals decided that the employer’s actions demonstrated only that the employer regarded the employee as having an “impairment,” but there was no evidence the employer considered the impairment to be “substantially limiting” in one or more major life activities.

Employers often ask whether exploring the possibility of accommodation, asking an employee to have a fitness for duty examination, or otherwise acknowledging medical impairments will create “regarded as” liability. This decision makes it harder for plaintiffs to make that argument under the ADA and federal Rehabilitation Act.

Posted by Patrick Della Valle on 02/10 at 03:46 PM
Disability Discrimination
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