Total Articles: 34
Virginia Federal Court Finds Hospital Not Required to Accommodate ER Nurse’s Lifting Restrictions
A Virginia district court has held, once again, that a hospital does not have to accommodate a nurse whose disability causes lifting restrictions so extensive that, in effect, she cannot perform the essential functions of her position.
Ninth Circuit: No Duty to Accommodate Unqualified Applicant With Disability
Trish Johnson was a special education teacher. She was required to maintain a teacher certification. To do so, she had to satisfy certain continuing education requirements, including having 3 hours of college credit over a five year period. Johnson failed to complete the college credit on time and told her bosses she would lose her certification. Her school district could have petitioned the state for an exemption, but declined to do so. Johnson lost her certification and was fired.
She sued under the ADA, claiming the school district had to apply for and obtain the exemption as a form of accommodation of her depression and other mental impairments.
Agreeing with the district court, the Ninth Circuit upheld summary judgment. The court held that a plaintiff under the ADA must establish she is a "qualified individual with a disability" or no accommodation is due.
Federal Appeals Court Holds that Employers May Be Obligated Under the ADA to Accommodate Commuting to Work
The U.S. Court of Appeals for the Second Circuit1 recently reiterated that employers may be obligated under the Americans with Disabilities Act (ADA) to accommodate requests by a disabled employee for assistance with her commute to work. Nixon-Tinkelman v. N.Y. City Dep't of Health & Mental Hygiene, Case No. 10-cv-3317 (2d Cir. Aug. 10, 2011). The plaintiff in Nixon-Tinkelman was hearing impaired and suffered from cancer, heart problems and asthma. Her employer, the New York City Department of Health and Mental Hygiene (DOHMH), reassigned her to work for nine months in Manhattan, rather than Queens, where she previously had been assigned. She requested that DOHMH assist her with her commute to Manhattan during this time. The district court granted summary judgment to DOHMH, finding that "commuting falls outside the scope of the plaintiff's job, and is thereby not within the province of an employer's obligations under the ADA and Rehabilitation Act." The Second Circuit reversed, stating that its prior decisions2 establish that "there is nothing inherently unreasonable . . . in requiring an employer to furnish an otherwise qualified disabled employee with assistance related to her ability to get to work."
11 Employer FAQs (No. 11): Are pregnant employees entitled to reasonable accommodation?
Never . . . well, hardly ever.
EEOC Examines Use of Leave as Reasonable Accommodation
On June 8, 2011, the EEOC held a Commission Meeting where the use of leave as a reasonable accommodation was explored. During the meeting, the EEOC reiterated the importance of providing leave in certain circumstances as a reasonable accommodation. The EEOC noted that while many requests for leave can be handled under an employer's regular leave policies, some situations require making exceptions to an employer's leave policies. For instance, the EEOC specifically provided its stance on "no fault" leave policies - i.e., those policies under which an employee is automatically terminated after using a certain amount of leave - stating that such policies "must be modified as a reasonable accommodation, absent undue hardship, if an employee with a disability needs additional leave." The Commission Meeting follows a recent trend of increased EEOC challenges to employer leave policies. This trend is perhaps best demonstrated by review of recent press releases from the EEOC, which have highlighted the EEOC's role in recent litigation.
Employer Best Practices: "Leave" as a Reasonable Accommodation Under the ADA
Thanks to those who attended my webinar last week with EEOC Regional Attorney John Hendrickson on "Examining the Use of 'Leave' as a Reasonable Accommodation Under the ADA." If you missed the program, you can access the webinar and materials here. As the survey feedback indicated, it was a great opportunity to discuss issues specifically relating to leaves of absence under the Family and Medical Leave Act and the Americans with Disabilities Act.
11 Employer FAQs (No. 8): May I send an employee to our doctor to verify the need for a reasonable accommodation?
You bet! You may, and it's strongly recommended unless you are comfortable with the opinion of the employee's doctor.
11 Employer FAQs (No. 5): Is there any difference between light duty and reasonable accommodation?
Most of the time, yes. Light duty is usually given in the context of a workers' compensation injury. It's often "make work" and provided to facilitate recovery, and it's usually offered for a finite period of time. Most importantly, it's completely optional for the employer (although workers' comp carriers don't see it that way).
11 Employer FAQs: (No. 1) What exactly is this "interactive process" we hear so much about?
Over the next 11 business days, I'll have a series of short posts addressing common questions that employers have about the law. If there is an "FAQ" that you would like for me to address, please let me know in the comments box.
Whether an Employer Has a Duty to Accommodate is a Question for Which There is No Simple Answer
One of the more common pieces of advice offered by employment attorneys to their clients is "Be consistent." And for good reason - consistent application of company policy is an important part of the rubric attorneys use when defending employers against discrimination claims. Yet, an over - emphasis on consistency at the expense of a case by - case determination of the proper course of action should be avoided, particularly when the situation involves an accommodation request by an employee, for, as many multi-state employers are aware, state laws may be different - and seemingly inconsistent - when it comes to the modification of an employee's duties.
The EEOC's 5 warnings about medical leaves and the ADA
The U.S. Equal Employment Opportunity Commission held a public hearing this week on leave of absence as a reasonable accommodation under the Americans with Disabilities Act.
Plaintiff must request an accommodation that allows him to perform the essential functions of the job in order to support ADA claim.
A medical resident with Asperger’s Disorder was unable to meet his burden, in his ADA lawsuit against his hospital employer, that he was “otherwise qualified” for his position. The 6th U.S. Circuit Court of Appeals upheld summary judgment in favor of the hospital, because the resident’s requested accommodation - that the hospital physician and staff be educated on the symptoms and triggers of Asperger’s - did not address the key obstacle preventing him from performing a necessary function of his job, or resolve his inability to fulfill his responsibilities as a hospital resident.
THE BENEFITS AND PRIVILEGES OF REASONABLE ACCOMMODATION
Most litigation related to disability discrimination involves whether the employer adequately accommodated limitations on an employee's ability to perform essential job functions. The 9th U.S. Circuit Court of Appeals' recent opinion in EEOC v. UPS Supply Chain Solutions, 2010 DJDAR 13607 (Aug. 27, 2010), is a reminder that reasonable accommodation obligations are much broader than that.
A SAD Story In So Many Very Different Ways
Which brings me, long way round so to speak, to the report in Eau Claire Leader Telegram of Tuesday's verdict in a Madison, Wisconsin trial of a teacher's disability claim. Former Somerset teacher wins $2 million lawsuit.
Ninth Circuit weighs in on assistance with commuting as a reasonable accommodation.
Earlier this year, and in a case of first impression, the 3d U.S. Circuit Court of Appeals upheld an employee’s claim that her employer violated the ADA by refusing to change her work shift after she reported commuting difficulties based upon a visual impairment that made it difficult for her to drive at night. Now, in an unpublished opinion, the 9th U.S. Circuit Court of Appeals has issued a similar decision. In that case, the Court reversed a decision in favor of an employer, allowing an individual’s claim to go to trial on the issue of whether the company failed to accommodate the employee’s visual impairment when it refused to modify her work schedule to daylight only hours.
Must employer accommodate employee who doesn't have ride to work? (pdf).
The Third U.S. Circuit Court of Appeals, which hears appeals from
federal courts in Delaware, Pennsylvania, and New Jersey, recently
decided an employment accommodations case under the Americans with
Disabilities Act (ADA). The case offers some key reminders about best
practices when you're dealing with an employee's request for
accommodations under the ADA.
Third Circuit says accommodation may include shift change that assists with commute to work.
In an unusual case of first impression, the 3d U.S. Circuit Court of Appeals has held that under certain circumstances, the ADA may obligate an employer to accommodate an employee’s disability-related difficulties in getting to work. In that case, the Court reversed summary judgment in favor of an employer and held that changing a part-time employee’s schedule to day shift – because her monocular vision made it dangerous for her to drive at night – could be a reasonable accommodation under the ADA
3d Cir. Finds Accommodation Required for Employee Without a Ride to Work.
Colwell v. Rite Aid Corp., is an accommodation case brought under the Americans With Disabilities Act (ADA), recently decided by the Third Circuit, which hears appeals from the federal courts of Delaware, Pennsylvania, and New Jersey. Jon Hyman, at the Ohio Employer's Law Blog, was the first to post about the Colwell opinion, noting that the decision offers employers some key reminders about best practices when dealing with an employee’s request for accommodations made pursuant to the ADA.
The Risk of Automatically Terminating Employees After Leave Expires.
The EEOC published a press release a few days ago about the distribution of a $6.2 million settlement it had reached with Sears, Roebuck & Co. The lawsuit had been filed in November 2004 in federal court in Chicago. The consent decree was entered and publicized on September 29, 2009 as the largest ADA settlement in a single case in EEOC history.
UNDERSTANDING REASONABLE ACCOMMODATION.
To help prevent discrimination against employees with disabilities, both the federal Americans with Disabilities Act and the California Fair Employment and Housing Act require employers to provide an employee with a disability “reasonable accommodation.” This term means a modification or adjustment to the workplace that enables the employee to perform the essential functions (i.e., the primary duties) of the job.
Service Animals That Provide Psychiatric Service.
Last week, I posted twice on the recent controversy surrounding service animals. (See Table for Two, Please--Me and My Seeing-Eye Horse; Quit Monkeying Around: Court Rules Monkey Is Not a Service Animal). Apparently, I’m not the only one who finds the issue interesting.
Table for Two, Please--Me and My Seeing-Eye Horse.
I love animals. There’s no denying it. But, despite my passion for the Wild Kingdom, the stories of “unusual” service animals have me a bit perplexed. Over the last year or so, I’ve seen several stories in the news about individuals who claim that their pets should be considered service animals, thereby enabling them to take the animals places pets normally would not be allowed.
ADA’s Interactive Process May Require Plaintiff to Identify Open Position for Transfer.
As defined under the Americans with Disabilities Act (ADA), the term “discriminate” includes an employer’s failure to make reasonable accommodations to the limitations of a disabled employee. Reasonable accommodation may include reassignment to a vacant position within the company. The 10th U.S. Circuit court of Appeals recently held that a disabled employee could not support her failure-to-accommodate claim under the ADA, because she did not present evidence of any specific vacant positions to which she could have been transferred.
Hospitality Update: Business Going To The Dogs?
Imagine a big night at your restaurant: the place is packed with guests, all enjoying themselves. A diner shows up with an unexpected companion – a dog. You're concerned about health regulations and the effect on other patrons. Politely but firmly you tell the guest she cannot enter with the dog. Either it stays outside or she does. Any problem? Yes. You've just politely but firmly violated the Americans with Disabilities Act.
Request For an Indefinite Leave of Absence is Not a Reasonable Accommodation Under the ADA.
The 8th U.S. Circuit court of Appeals recently upheld summary judgment in favor of an employer who terminated the employment of an individual undergoing cancer treatment. Peyton v. Fred’s Stores of Arkansas, Inc., 8th Cir., No. 08-2346, April 15, 2009. In that case, the Court held that because there was no reasonable accommodation that would have allowed the individual to perform the essential functions of her job during the period in which she was absent for treatment, there was no violation of the ADA.
DISABILITY DISCRIMINATION AND QUALIFICATION STANDARDS.
The federal Americans with Disabilities Act protects individuals with disabilities from discrimination. The Fair Employment and Housing Act is the California anti-discrimination law that provides similar protections. Both the ADA and FEHA require employers to make reasonable accommodations when qualified employees can perform the essential functions, but not necessarily all other requirements, of a job.
ALTERNATIVE POSITIONS AS A REASONABLE ACCOMMODATION: WHAT IS REQUIRED?
The federal Americans with Disabilities Act (ADA) and California’s Fair Employment and Housing Act (FEHA) both require employers to reasonably accommodate the known physical or mental limitations of an otherwise qualified employee or applicant with a disability. However, an employer’s duty to provide reasonable accommodation under the FEHA is broader than under the ADA, even considering the recent amendments to the ADA which become effective on January 1, 2009. (We wrote about the amendments in our September 24, 2008, column.)
Employer Has Duty To Accommodate Employee With "Obvious" Disability.
The Americans with Disabilities Act (ADA) requires that employers engage in an "interactive process" with employees to determine whether an employee's disability can be reasonably accommodated. A federal appellate court recently held that an employer failed to engage in this process when it did not initiate the issue of accommodation with an employee whom it allegedly perceived to be disabled.
Second Circuit Says Employer Has A Duty To Reasonably Accommodate Employee With An Obvious Disability, Even Without A Request To Do So.
The Americans with Disabilities Act (ADA) requires that employers engage in an “interactive process” and to work together with disabled employees to determine whether an employee’s disability can be reasonably accommodated. Recently, the 2d U.S. Circuit Court of Appeals held that Wal-Mart failed to engage in this process when it did not initiate the issue of accommodation with an employee whom it perceived to be disabled. Brady v. Wal-Mart Stores, Inc, et al, 2d Circ., No. 06-5486-cv, July 2, 2008.
Job Reassignment Under ADA Remains Unclear.
While the Supreme Court stands to be quite busy in the next several months deciding important employment law questions, it will not issue a ruling in one of the more widely-anticipated cases that had appeared on its docket this term: Huber v. Wal-Mart Stores, Inc.
This case was to decide the correct standard to apply in ADA cases when an employee seeks a reassignment to a new position as a reasonable accommodation – should that employee merely be afforded the opportunity to compete with other applicants in the normal hiring pool, or should the employer be forced to grant preferential treatment and automatically reassign that employee above more qualified applicants?
Court Must Examine Interactive Process in ADA Lawsuit.
The Ninth Circuit has held that a trial court could not rule against a hearing impaired employee in an ADA case without evaluating whether the employer engaged in the interactive process of accommodation required by the Americans With Disabilities Act.
Family Leave As An Accommodation Under The ADA.
The Tenth Circuit held that a request for a leave within the limitations of the Family and Medical Leave Act ("FMLA") may qualify as a request for a reasonable accommodation under the Americans With Disabilities Act ("ADA").
Ninth Circuit Reverses Summary Judgment In Favor Of Employer Where Collective Bargaining Agreement Does Not Bar Employee's Requested Accommodation And Where Conflicting Evidence Exists.
Discusses Morton v. United Parcel Service, Inc., in which the court held that employers who have failed to engage in the “interactive process” with a disabled employee will rarely be able to demonstrate as a matter of law the absence of a reasonable accommodation that does not impose an undue hardship on the employer.
Accommodation Ideas.
Consultants from the Job Accommodation Network have compiled several ideas for accommodating individuals with particular disabilities, ranging from AIDS to Wheelchair Users.
