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Total Articles: 96

Extending Leave Was Not A Reasonable Accommodation Under The ADA Where There Was A Lack Of “Certainty” About Return To Work Date

While employers generally accept that they cannot apply a maximum leave period after which employees are automatically terminated, they continue to struggle with how much leave must be provided as a form of accommodation under the ADA. There is little dispute that leave for an indefinite period where the employee has a long term chronic condition is not a reasonable accommodation, but how much time must the employer give? Is a month of extended leave reasonable? Two months? Four months?

Seventh Circuit Holds that the ADA Is Still Not a Leave Statute

On October 17, 2017, on the heels of its landmark decision in Severson v. Heartland Woodcraft, the Seventh Circuit affirmed summary judgment in favor of the employer in its unpublished opinion in Golden v. Indianapolis Housing Agency, No. 17-1359 (7th Cir. Oct. 17, 2017), reiterating that “[a]n employee who needs long-term medical leave…is not a ‘qualified individual’ under the ADA.”

Plaintiff Who Could Get to Work On Time By Waking Up An Hour Earlier Was Not Entitled An Accommodation Allowing Her to Be Late.

Years ago, I had a legal assistant who was unable to get to work on time. I finally told her that she had to be in at 8:30 as that was when everyone else started their work day. Three days later, she appeared in my office, walked in and slapped a speeding ticket on my desk and insisted that I pay it because it was my fault that she was speeding to get to work on time.

Extended Leave Is Not Reasonable Accommodation, 7th Circuit Rules

A long-term medical leave of absence after Family and Medical Leave Act (FMLA) leave has been exhausted cannot be a reasonable accommodation, the 7th Circuit Court of Appeals has ruled in a pair of pro-employer decisions. In Severson v. Heartland Woodcraft, Inc., the appellate court found that a medical leave spanning multiple months does not permit the employee to perform essential job functions, as required under the Americans with Disabilities Act (ADA).

Dear Littler: How Do You Address Employee Service Animal Accommodation Requests Under the ADA?

I read a New Yorker article about people bringing their dogs everywhere, claiming they were emotional support animals. It mentioned a dog trying to get into Carnegie Hall. But everyone knows there’s only one way to get there: Practice.

Courts Continue to Wrestle with Whether Long-Term Leave Can Be a Reasonable Accommodation Under the ADA

Executive Summary: When an employee seeks leave as an accommodation for a disability under the Americans with Disabilities Act (ADA), the decision regarding whether to grant or deny the request can be challenging. Employers must look closely at the particular circumstances of every case in order to determine whether the amount of leave requested can be provided to the employee without causing undue hardship to the employer’s business.

ADA Does Not Provide Medical Leave Entitlement to Worker Seeking Post-FMLA Leave, Seventh Circuit Holds

In a significant ruling for employers, the U.S. Court of Appeals for the Seventh Circuit has held that a request for a two-to-three-month leave of absence is not a reasonable accommodation pursuant to the Americans with Disabilities Act. Severson v. Heartland Woodcraft, No. 15-3754 (7th Cir. Sept. 20, 2017).

The Interactive Process Is a Two-Way Street: Ninth Circuit Finds Employee’s Inadequate Effort Doomed ADA Claim

“Once an employer becomes aware of the need for accommodation, that employer has a mandatory obligation under the ADA to engage in an interactive process with the employee to identify and implement appropriate reasonable accommodations.” Nonetheless, in a recent opinion, the Ninth Circuit Court of Appeals clarified that the interactive process requires direct communication on both sides, between the employer and employee, to explore in good faith the possible accommodations. Phillips v. Victor Community Support Services, Inc., No. 15-15862, Unpublished (July 3, 2017).

Employers Should Engage In the Interactive Process Even If They Believe the Employee Is Not Qualified.

Diligent and well informed employers know that it is the best practice to engage in an individualized assessment of a requested accommodation. Sometimes an employer may be tempted to refuse to discuss an accommodation because it doesn’t believe that the request is reasonable or because the employee is not “qualified.” It should resist the temptation.

ADA Compliance Challenges: Navigating the Over-accommodation Conundrum

Make no mistake about it: ADA compliance can be challenging. This is especially true when it comes to providing reasonable accommodation. Not uncommonly, managers wanting to do the right thing actually provide more than the law requires. Although well-intentioned, this practice often leads to conflict if more generous accommodations are later scaled back. Thankfully, a recent decision by the Eleventh Circuit Court of Appeals supports the notion that employers should not be penalized for going beyond their legal obligations.

High Times: Accommodating Marijuana Use at Work

Marijuana laws are evolving in the US. Marijuana is a Schedule 1 drug under the Controlled Substances Act, and has no accepted medical use under federal law.

Who’s Responsible for Providing Disability-Related Workplace Accommodations to Temporary Employees?

Many businesses use temporary workers placed by staffing agencies. But who is responsible when a temporary worker requests a disability accommodation? The staffing agency and the business could both be responsible if they are acting as “joint employers” under the Americans with Disabilities Act (ADA).

Will Employers Be Forced to Accommodate Employees Who Test Positive for Marijuana?

On July 17, 2017 the Massachusetts Supreme Judicial Court ruled that under the Massachusetts Anti-Discrimination law an employer may be required to accommodate an employee who is a current user of medical marijuana regardless of the employer’s drug free workplace and drug testing policies. While this decision is binding only in Massachusetts, it could represent the beginning of a significant shift in how employers will need to deal with employees using marijuana to treat a disability.

Restraining Unruly Children as an Essential Job Element: Expected in Secondary Schools but Not at a Youth Detention Center? A Cautionary Tale in the ADA Reasonable Accommodation Arena

n a recent blog post, I discussed the fact that under the reasonable accommodation provisions of the ADA, employers generally are not required to provide their employees with a stress-free work environment or one that possesses a “just right” amount of stress, which I referred to as a Goldilocks work environment

12 Months of Additional ADA Leave Not Reasonable, Court Says

A federal appellate court recently ruled that an employee’s request for 12 months of additional medical leave was not reasonable, and thereby upheld the dismissal of her Americans with Disabilities Act (ADA) lawsuit against her former employer. Employers can learn three important lessons from the May 2, 2017 decision.

Employee’s failure to actively engage in interactive process supports dismissal of ADA claim.

The Americans with Disabilities Act (ADA) requires both a disabled employee and her employer to work interactively to identify reasonable accommodations for the disabled employee. The 7th U.S. Circuit Court of Appeals has underscored that requirement by dismissing the claims of an individual who, it found, failed to engage fully in the interactive process. Brown v. Milwaukee Board of School Directors, No. 16-1971, 7th Circuit, May 4, 2017.

Reasonable Accommodation Tested by Principal

Is it reasonable for an Assistant Principal to return to her job if she has medical restrictions that prohibit her from interacting with potentially unruly students? The 7th Circuit examined this situation in Brown v. Milwaukee Bd. of Sch. Directors, which addresses “reasonable accommodations” under the ADA. Of course, the ADA requires employers to make “reasonable accommodations” that will allow a qualified individual with a disability to perform the essential functions of her job. So what is a reasonable accommodation? It depends on the company, the essential functions of the job, and the medical restrictions of the applicant or employee.

Is Never Returning to Work a Reasonable Accommodation? Fifth Circuit Says No

On March 15, 2017, in Moss v. Harris County Constable Precinct One, the Fifth Circuit Court of Appeals reaffirmed that an employer is not required to accommodate an employee who is requesting indefinite leave as a reasonable accommodation.

Can Fido Come to Work? EEOC Files Suit to Require Emotional Support Dog on Truck Route

It’s true. The U.S. Equal Employment Opportunity Commission (EEOC) is taking the position that an emotional support animal may be a required reasonable accommodation in the workplace.

ADA and FMLA Claims Fail for Call Center Employee Who Dropped Calls

In a published opinion, the Tenth Circuit Court of Appeals recently ruled that the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA) do not require employers to excuse an employee’s misconduct even though the conduct was related to the employee’s disability. As a result, the Tenth Circuit affirmed summary judgment in the employer’s favor on the employee’s disability discrimination claim and FMLA retaliation claim. DeWitt v. Southwestern Bell Telephone Company, No. 14-3192, Tenth Circuit Court of Appeals (January 18, 2017).

What is a Reasonable Accommodation under the Americans with Disabilities Act? The City of Philadelphia’s Costly Reminder to Consider Job Transfers as a Reasonable Accommodation.

On July 9, 2012, David Moore filed a Charge with the United States Equal Employment Opportunity Commission (“EEOC”) (Charge No. 530-2012-02470) alleging that the City of Philadelphia failed to reassign him to a new job as a reasonable accommodation when a heart condition left him unable to perform his current job. Instead, the City of Philadelphia terminated his employment.

Breaks and Flexible Hours Not a Reasonable ADA Accommodation for Frequently Absent Employee, Court Holds

Employers can easily feel overwhelmed when it comes to enforcing employee attendance standards while providing reasonable accommodation to employees with chronic health conditions. Increasingly, however, court decisions such as Williams v. AT&T Mobility Services LLC are providing much-needed guidance regarding the scope of an employer’s duty to accommodate. The Williams case illustrates how carefully-designed policies, frequent communication, and a generous sprinkling of patience form key ingredients in the recipe for avoiding liability under the Americans with Disabilities Act (ADA).

Supreme Court Nominee Has Put “Reasonable” into Reasonable Accommodation Obligations

In case your news and twitter accounts are down, and you otherwise have not heard the news… President Trump has nominated Judge Gorsuch from the U.S. Court of Appeals for the Tenth Circuit to fill Justice Antonin Scalia’s vacant Supreme Court seat.

An Employee Fails to Return from Leave As Originally Scheduled—Has That Employee “Voluntarily Resigned”?

What are employers to do if an employee has not provided a doctor’s note to continue his or her leave and the initial end date for that leave has passed?

No Excuses: “Retroactive Leniency” Is Not An ADA Reasonable Accommodation

A federal appeals court upheld the termination of an employee who tried to blame her misconduct on her disability during the termination meeting itself. The court ruled that “retroactive leniency” was not a reasonable accommodation under the Americans with Disabilities Act (ADA), and therefore the employer had no obligation to apply the brakes to its ongoing disciplinary process despite the employee’s pleas.

Not Phoning It In: Telecommuting Accommodations and the ADA

In Quentin Tarantino's classic film, "Pulp Fiction," two hitmen, Jules and Vincent (played by Samuel L. Jackson and John Travolta), find themselves in a farcical and escalating "mess" – requiring the advice of a "fixer" known as "The Wolf" (played by Harvey Keitel). The Wolf arrives at the scene, assesses the situation with cool detachment, and develops a detailed plan to extricate Jules and Vincent from their unsavory dilemma. Imagine "The Wolf" insisting on phoning in his assistance instead of working in person with Jules and Vincent. Would he have been as effective? In this podcast, we discuss how agile work and employee requests to work from home implicate obligations under employment laws – specifically the Americans with Disabilities Act and other non-discrimination laws.

Fido Can’t Help Ring in the New Year (Unless He’s a True Service Animal)

Individuals wishing to begin the new year by taking a beloved pet or emotional support animal out to a restaurant may run into new legal deterrents in some states. While the Americans with Disabilities Act (ADA) entitles people with disabilities to bring “service animals” into public places such as restaurants and stores, many individuals do not realize which animals the law covers.

Court: Employees Seeking Accommodation Must Compete For Reassignment

The 11th Circuit Court of Appeals ruled that a disabled worker forced to leave her position because of her physical impairment must compete for vacant jobs when seeking reassignment, handing a victory to her former employer. By concluding that employers have no obligation to provide preferential treatment to individuals with disabilities when attempting to accommodate them via reassignment, the court decision runs in direct conflict with various other circuits – and the EEOC – which have ruled otherwise. Unless and until the Supreme Court steps in to resolve the circuit split, employers must be sure to carefully navigate the various standards that exist across the country when accommodating their employees.

Appellate Court Holds that ADA Does Not Require Reassignment Without Competition

The Equal Employment Opportunity Commission (EEOC) suffered a setback in its attempt to establish that the Americans With Disabilities Act (ADA) requires an employer to reassign an employee to an available position without having to compete with other candidates for that position. In EEOC v. St. Joseph’s Hospital, the Eleventh Circuit Court of Appeals held that a Florida District Court correctly interpreted the ADA when it held that there is no mandate for noncompetitive reassignment as an accommodation.

Federal Court Says ADA Does Not Require Reassignment of Employee Without Competition

Executive Summary – If an employee can no longer perform the essential functions of his or her position due to a disability, one common form of reasonable accommodation under the Americans with Disabilities Act (ADA) is reassignment to a vacant position. Last week, in U.S. Equal Employment Opportunity Commission v. St. Joseph’s Hospital, 2016 WL 7131479 (11th Cir. 2016), the Eleventh Circuit (the federal appeals court over Florida, Georgia and Alabama) rejected a long-standing position of the U.S. Equal Employment Opportunity (EEOC) that as long as the disabled employee is qualified for the position the employer must place the employee in the vacant position and cannot require the employee to compete for it.

Employee Seeking a Less Stressful Work Environment Denied ADA Protections

In a case addressing a challenging accommodation scenario faced by many employers, a Florida District Court held in Hargett v. Florida Atlantic University Board of Trustees that an employee seeking a less stressful environment and an end to hostile confrontations with her manager was not seeking a reasonable accommodation. The employee suffered from epilepsy with seizures brought on by high tension and stress. She demanded as a reasonable accommodation that her supervisor cease his “hostile confrontations” with her. She also requested that her employer provide her with “calm, fair, non-confrontational treatment.”

The Eighth Circuit & the ADA, Part II: Must a Request for Accommodation be Explicit?

In contrast to Parker v. Crete Carrier Corporation, et al, in Kowitz v. Trinity Health, et al, No. 15-1584 (October 17, 2016), a split panel of the Eighth Circuit Court of Appeals reversed summary judgment for an employer on an Americans with Disabilities Act (ADA) claim, finding a factual dispute about whether the employer knew the employee needed an accommodation despite the absence of a formal request for accommodation.

Finding the “Implicit” Accommodation Request

It is common gospel that when a qualified disabled employee requests accommodation under the Americans with Disabilities Act (“ADA”), both employer and employee must engage in an interactive dialogue to discuss the options.

Telework Under The ADA & Other Nondiscrimination Laws

A workforce that adheres to a traditional work style, or a consistent eight-hour workday in the same location – with no offsite work or interaction with business colleagues or customers – is increasingly becoming a relic in many settings. Whether at a coffee house, commuter train, airport lounge, or soccer field, transactions, communications, and decisions take place on a range of devices away from the brick-and-mortar jobsite.

To Accommodate or not to Accommodate: How to Know if Your Employee Actually Requested a Reasonable Accommodation

A divided federal appeals court recently reminded employers that an employee’s request for a reasonable accommodation under the Americans with Disabilities Act (“ADA”) need not be explicit in order to invoke the interactive accommodation process. In Kowitz v. Trinity Health, the Eighth Circuit Court of Appeals found that, based on the circumstances presented in the case, an employee had made an implied request for a reasonable accommodation.

Managing Repeated Requests for Leave as an ADA Reasonable Accommodation: Takeaways from My Webinar with EEOC Commissioner Feldblum (Part I)

Last Thursday, I had the pleasure of conducting a webinar with EEOC Commissioner Chai Feldblum on the topic of “leave” as an ADA reasonable accommodation in light of the EEOC’s new technical resource issued on this topic in early May 2016. If you missed the program, you can access the webinar and materials here. In addition to covering information contained in the EEOC’s new resource document, we also identified some practical approaches in determining whether and how much leave employers are obligated to provide when it comes to the ADA.

Join EEOC Commissioner Chai Feldblum and me for a Webinar on the EEOC's New Resource on Leave as an ADA Reasonable Accommodation

Earlier this month, the EEOC issued a technical assistance resource on leave as an ADA reasonable accommodation under the ADA. I am delighted that EEOC Commissioner Chai Feldblum will join me for a webinar to take a deep dive into the information provided in the EEOC’s resource and apply the technical assistance to a variety of real-life scenarios.

Unlike Godot, ADA Leave Guidance Arrives

Since June 2011, when the EEOC suggested it might issue guidance on leave as a reasonable accommodation under the ADA, we have likened the wait to waiting for Godot. See here and here. After nearly five years of reciting that “it didn’t come today, it might come tomorrow,” on May 9, 2016, the EEOC issued a “resource document” on leave and the ADA. Unlike in Beckett’s play, Godot arrived.

New EEOC Resource Document: More Questions Than Answers About Return-From-Leave Under the ADA

On May 9, 2016, the U.S. Equal Employment Opportunity Commission (EEOC) released a resource document titled, “Employer-Provided Leave and the Americans with Disabilities Act,” which offers insights into when employers should provide leave as an accommodation under the Americans with Disabilities Act (ADA). As a refresher, the ADA requires covered employers to provide reasonable accommodations to applicants and employees with disabilities who require such accommodations due to their disabilities. Under the ADA, employers would not be obligated to provide a “reasonable accommodation” if it would cause “undue hardship” to the employer.

New EEOC Publication Clarifies Disability Accommodation Requirements

Responding to an all-time high rate of disability charges filed in fiscal year 2015, the Equal Employment Opportunity Commission (EEOC) has issued a new publication reiterating an employer's obligation, under the Americans with Disabilities Act (ADA), to provide leave as a reasonable accommodation to employees with disabilities.

EEOC Weighs in on Leave as a Reasonable Accommodation

On May 9, 2016, the Equal Employment Opportunity Commission (EEOC) issued a resource document addressing the rights of employees with disabilities who seek leave as a reasonable accommodation under the Americans with Disabilities Act of 1990 (ADA). This document consolidates existing guidance by the EEOC on the ADA and leaves of absences regarding, among other things, leave as a reasonable accommodation, including the interactive process and policies on leave, reinstatement and reassignment.

EEOC Issues New Resource Document Addressing Leave as a Reasonable Accommodation under the ADA. What's the Impact on Employers?

For years, employers across America have been clamoring for guidance from the EEOC about how they should manage an employee’s request for extended or intermittent leave from work and how much leave is considered as a reasonable accommodation under the ADA. This week, employers received an answer.

How much “interactive process” is enough to preclude ADA liability?

To support a failure-to-accommodate claim under the Americans with Disabilities Act, a plaintiff must establish both a prima facie case of discrimination and an employer’s failure to accommodate it.

An Employee's "Hope" That She'll Return to Work Isn't Enough to Require Additional Leave under the ADA

One of the most difficult issues an HR professional or in-house employment counsel faces is how to deal with an employee who cannot return to work after FMLA leave expires. Is additional leave beyond 12 weeks required? The answer is almost always ‘yes.’ But how much leave are we obligated to provide? And what if the employee already has taken months of leave and doesn’t really know when she’ll return?

“Aberrant” behavior by a police officer supported employer’s decision not to return the officer to work after brain surgery .

The 6th U.S. Circuit Court of Appeals has held that under the Americans with Disabilities Act (ADA), an employer may rely on a credible, scientifically-based medical opinion to exclude someone from returning to work, even if that opinion is contradicted by another medical provider’s opinion.

Trucking Company to Pay $300,000 to Settle EEOC ADA Accommodation Suit

A recently settled lawsuit brought by the EEOC against an Arizona trucking company highlights the importance for companies to always consider unpaid leave as a reasonable accommodation and to ensure their managers and supervisors are trained on all federal, state and local discrimination laws.

Accommodations Legalese: 5 Key Terms Every Employer Should Know

It’s true in other areas of employment law as well, but in the world of disability discrimination law there are numerous phrases that have taken on special meaning and become true terms of art. Even those who are well-versed in other areas of employment law and HR often find it difficult to understand the meaning of some of these commonly-used words and phrases. Supervisors and HR personnel who do not understand the meaning of these key phrases may end up failing to comply with the strict rules and regulations of state and federal disability laws.

Your Compliance Toolbox: 7 Tips for a Successful Interactive Process

Dealing with issues related to accommodation requests at work can be a daunting task—even for the most seasoned HR or legal professional. The path to a successful interactive process and a meaningful analysis of an accommodation request is fraught with landmines at every turn. Though professionals are required to use judgment and perform an individualized assessment for each new accommodation request, there are some protocols employers can use as a guideline each time the need arises.

Stroke Victim Wanted More from Flossmoor under ADA

Sometimes it seems an employer has done a lot to accommodate an employee under the ADA, yet the employee claims the employer should have done more. The Seventh Circuit addressed such a situation in Swanson v. Village of Flossmoor (7th Cir. July 24, 2015).

Employer Not Required by ADA to Permit Employee to Telecommute

Executive Summary: Reversing an earlier panel decision, the Sixth Circuit has held that an employee who was unable to regularly and consistently attend work was not a qualified individual with a disability under the Americans with Disabilities Act (ADA) because her excessive absences prevented her from performing the essential functions of her job. Accordingly, the employer was not required to permit her to telecommute because doing so would excuse her from performing one of the essential functions of her job and, thus, was not a reasonable accommodation. See EEOC v. Ford Motor Company, (April 10, 2015).

Employers Can Decide That Physical Presence at the Workplace is an Essential Function

On April 10, 2015, the Sixth Circuit Court of Appeals issued its long-awaited en banc decision in Equal Employment Opportunity Commission v. Ford Motor Company following a vacated panel decision from April 2014 in which a divided panel had reversed a district court’s summary judgment award in Ford’s favor.

Sixth Circuit Holds Telecommuting Not a Reasonable Accommodation Where Regular and Predictable On-Site Job Attendance is an Essential Job Function

Courts have repeatedly recognized that “regular job attendance” is an essential function of most jobs that need not be altered in order to reasonably accommodate a disabled employee. This common sense notion, however, has come under increasing scrutiny given the technological advancements that have made telecommuting and other remote working arrangements routine in many workplaces.

Employee’s Failure to Participate in Interactive Process Dooms ADA Claim

A diabetic employee who quit her job in response to her employer’s rejection of her suggested “reasonable accommodation” cannot support claims under the Americans with Disabilities Act (ADA), according to the First Circuit Court of Appeals, because she failed to participate in the interactive process in good faith. EEOC v. Kohl’s Dep’t Stores, Inc., No. 14-1268 (December 19, 2014).

Employee cannot claim lack of accommodation after quitting her job during the interactive process.

A diabetic employee who quit her job in response to the employer’s rejection of her suggested “reasonable accommodation” cannot support claims under the Americans with Disabilities Act (ADA), because she failed to participate in the interactive process in good faith, according to the 1st U.S. Circuit Court of Appeals. EEOC v. Kohl’s Dep’t Stores, Inc., 1st Cir., No. 14-1268, December 19 2014.

Employer must consider job restructuring if such restructuring would accommodate disabled employee without undue hardship.

Job restructuring is one of the accommodations that an employer must consider under the Americans with Disabilities Act (ADA) and its regulations. Recently, the 7th U.S. Circuit Court of Appeals held that if a minor adjustment to the work duties of a few other nursing home employees would have enabled the home’s hairdresser to perform the duty of pushing her customers’ wheelchairs to hairdressing appointments despite her disability, the nursing home’s refusal to consider making that adjustment was unlawful. Kaufmann v. Petersen Health Care VII, LLC, 7th Cir., 2014, No. 13-3661 (October 16, 2014).

Must an Employer Modify its Leave of Absence Policy to Ensure Compliance with the ADA?

Executive Summary: When is modification of a no-fault or inflexible leave of absence policy required as an accommodation under the Americans with Disabilities Act (ADA)? Although the Equal Employment Opportunity Commission (EEOC) has taken the position that, absent undue hardship, an employer must modify such a policy to allow for additional leave to a disabled employee, the case law interpreting the ADA has provided no definitive guidance for determining when requests for additional leave may be unreasonable under the Act.

Tenth Circuit Upholds Employer’s Inflexible Leave Policy

Equal Employment Opportunity Commission (EEOC) guidance provides that employers violate the Americans with Disabilities Act (ADA) by enforcing inflexible policies with specified leave limits.

Decision Holding Telecommuting to Be a Reasonable Accommodation Provides a Cautionary Tale for Employers

In a 2-1 decision, the Sixth Circuit in EEOC v. Ford Motor Co., No. 12-2484 (6th Cir. April 22, 2014) has dealt employers a blow regarding the extent to which a company must reasonably accommodate an employee with a disability. In this particular case, the employee sought a four-day-per-week telecommuting arrangement. Even though Ford found in its business judgment that this was not a workable arrangement, the court disagreed, noting that due to modern technology, the types of jobs where employees can fulfill all essential requirements while working remotely has significantly increased.

Is Telecommuting as a Reasonable Accommodation Under the ADA the New Norm?

Executive Summary: The Sixth Circuit recently held that a four day per week telecommuting arrangement could be a reasonable accommodation for a disabled employee, even though the employer determined, in its business judgment, that teleconferencing was an insufficient substitute for in-person work. The court noted that, given the state of modern technology, the class of cases in which an employee can fulfill all requirements of the job while working remotely has greatly increased, and it is no longer the case that jobs suitable for telecommuting are "extraordinary" or "unusual." See EEOC v. Ford Motor Co., No. 12-2484 (6th Cir. Apr. 22, 2014).

Don’t panic about your telecommuting policy . . . unless you’re in the Sixth Circuit.

A recent decision by the 6th U.S. Circuit Court of Appeals seems to have sent many employers into a tailspin on whether and how often to allow employees to telecommute to fulfill job responsibilities. EEOC v. Ford Motor Company, 6th Cir., No. 12-2484, April 22, 2014. (FindLaw.com link.) However, at this point, it is too early to tell what kind of effect the decision will have on a wider basis.

Complying With ‘Reasonable Accommodation' Requests

Employers must understand their accommodation obligations. Denying an accommodation request because the employee is not disabled is a risky proposition.

Interactive process is crucial element of analysis in disability discrimination cases.

A recent ruling by the United States District Court for the District of Puerto Rico clarifies that Law 44, Puerto Rico’s counterpart to the federal American with Disabilities Act (ADA), applies only to employers and does not provide for individual liability. Accordingly, claims brought against individual defendants under Law 44 are subject to dismissal.

EEOC challenges employer's 12-month maximum medical leave policy.

The U.S. District Court for the Northern District of Illinois denied a motion filed by United Parcel Service, Inc. (UPS) to dismiss a claim by the Equal Employment Opportunity Commission (EEOC) on behalf of a class of individuals challenging the company’s leave policy. The challenged policy requires that employees “be administratively separated” from employment after 12 months of medical leave. EEOC v. United Parcel Service, Inc., N.D. Ill., No. 09C5291, February 11, 2014.

Seventh Circuit Reverses Summary Judgment Ruling on Narcoleptic Night Shift Employee’s ADA Claims, But Affirms Dismissal of FMLA Claims

On January 13, the Seventh Circuit issued an opinion in Spurling v. C&M Fine Pack, Inc., 2014 U.S. App. LEXIS 660, reversing an Indiana District Court’s grant of summary judgment in favor of the employer on a narcoleptic employee’s Americans with Disabilities Act (ADA) claim, but affirming the dismissal of the employee’s Family and Medical Leave Act (FMLA) claims. It is a case with clear implications for employers regarding the ADA and the FMLA.

What's An "Individualized Analysis" – And Why Should I Care?

The Americans with Disabilities Act (ADA) poses ongoing compliance challenges and attracts significant attention from plaintiffs' lawyers and the Equal Employment Opportunity Commission (EEOC). The resulting litigation continues to illustrate that inflexible policies and practices are a recipe for disaster.

Legal Alert: Fifth Circuit Says Designated Parking Space May Be Reasonable Accommodation

Executive Summary: The Fifth Circuit Court of Appeals has held that a request for a reserved, free on-site parking space could have been a request for a reasonable accommodation under the Americans with Disabilities Act (ADA) even though parking did not relate to the performance of the employee's essential job functions. See Feist v. State of Louisiana, 2013 U.S. App. LEXIS 19133 (5th Cir. Sept. 16, 2013).

Supervisor’s Failure to Engage in Interactive Process with Disabled Employee May Convert Employee’s Resignation into Constructive Discharge

In a case recently decided under the Americans with Disabilities Act (ADA)—Suvada v. Gordon Flesch Company, Inc.—a federal district court in Chicago allowed a production clerk’s claim for constructive discharge against her former employer, an office-services company, to proceed to trial.

Failure to Provide Additional Leave as ADA Accommodation Could Prove Costly to Employers

For ages, the employer community has awaited guidance from the EEOC regarding how much additional leave, if any, an employer is required to provide an employee as an ADA reasonable accommodation when an employee is unable to return to work after exhausting FMLA leave. (Depending on what the EEOC says in that eventual guidance, however, employers may regret asking for it in the first place.)

How to Change Employment Policies Without “Pulling a Yahoo”

How can companies change policies or take away benefits without enraging employees and creating a public relations nightmare?

Timely Arrival at Work Not Always an Essential Job Function

In a case involving a schizophrenic employee whose medication caused him to feel drowsy and sluggish in the morning, the Second Circuit Court of Appeals has ruled that on-time arrival at work is not always an essential job function. In McMillan v. City of New York, McMillan, the plaintiff, worked as a case manager for New York City’s Human Resources Administration (HRA), conducting home visits, processing social assessments, recertifying clients’ Medicaid eligibility, referring clients to other social service agencies, and otherwise meeting with clients and addressing their concerns. HRA had a flex-time policy allowing employees to arrive at work anytime between 9:00 and 10:00 a.m. Due to elevator wait times at HRA’s offices, employees were not considered tardy unless they arrived after 10:15 a.m. An employee whose late arrival was approved by a supervisor could use “banked” leave time to cover time missed. An employee whose late arrival was not approved was subject to discipline.

"Reasonable accommodation" may include adjustments to work schedule, even beyond an agreed-upon flex-time schedule.

Employers are aware of the fact that the Americans with Disabilities Act (ADA) requires them to engage in an interactive process in order to determine whether a disabled individual can be accommodated to assist him or her in performing the essential functions of a job. In determining the essential functions of a position, most employers assume that physical presence and arrival at work at a consistent time are essential functions of most jobs.

Employer has no obligation to provide "light duty" assignment under FMLA or ADA.

The use of light duty assignments to employees who are returning to work after recuperation from an illness or injury is an often used mechanism. The 7th U.S. Circuit Court of Appeals has held that neither the Family and Medical Leave Act (FMLA) nor the Americans with Disabilities Act (ADA) creates an obligation for an employer to provide light duty work to an individual who is unable – with or without accommodation – to return to the essential functions of his job. James v. Hyatt Regency Chicago, 7th Cir., No. 1:09-cv-07873, February 13, 2013.

Employer's reliance on third party assessment to determine reasonable accommodation may lead to ADA liability.

The 6th U.S. Circuit Court of Appeals recently addressed an issue of first impression, finding that the ability to hear is not necessarily an “essential function” of the job of lifeguard. Keith v. County of Oakland, 6th Cir., No. 11-2276, January 10, 2013. In addition, however, the Court made a number of other, more generally applicable observations. The most noteworthy is a statement that seems to create an obligation on the part of an employer to fully understand the background and experience of any expert who is relied upon to assist in determining whether a disabled individual can be accommodated in a particular position.

Reassignment Deemed Mandatory Under the ADA by Seventh Circuit

In EEOC v. United Airlines, the Seventh Circuit overruled a decision from 2000 and held the Americans with Disabilities Act mandates employers appoint disabled employees to vacant positions for which they are qualified, even though they are not the most qualified person for the job.

Request for Straight Day Shift Not a Reasonable Accommodation

The Eighth Circuit Court of Appeals has ruled that the American with Disabilities Act (ADA) did not require a power company to grant a diabetic employee’s request to work a straight day shift. (Kallail v. Alliant Energy Corporate Servs. Inc.) The employee was employed as one of several “resource coordinators” who monitor power distribution and schedule and route resources to respond to routine and emergency situations such as power outages. To provide 24/7 coverage, resource coordinators are required to work a schedule rotating between eight and 12-hour shifts, days and nights. As an insulin-dependent diabetic, the employee began experiencing erratic changes in her blood pressure and blood sugar which put her at higher risk for diabetic complications and death, a development her physician attributed to her work schedule. The employee asked to be accommodated with a straight day shift.

Seventh Circuit Alters the ADA Landscape by Reversing Its Precedent on Job Reassignment

In EEOC v. United Airlines, Inc., No. 11-1774, 2012 WL 3871503 (7th Cir. Sept. 7, 2012), the United States Court of Appeals for the Seventh Circuit held that the Americans with Disabilities Act ("ADA") requires as a reasonable accommodation that employers reassign disabled employees to vacant positions for which they are at least minimally qualified, absent a particularized showing of undue hardship. In doing so, the court overruled its prior decision in EEOC v. Humiston-Keeling, 227 F.3d 1024 (7th Cir. 2000), which held that an employer was not required to reassign a disabled employee to a vacant position for which there was a better candidate, provided that the employer had a "consistent and honest policy" of hiring the best candidate for the job.

Seventh Circuit Does an About Face: ADA Now Requires the Assignment of Disabled Employees to a Vacant Position as a Reasonable Accommodation September 11, 2012

accommodate a disabled employee did not extend to reassigning the employee to a vacant position if a more qualified candidate had applied. Rather, an employer satisfied its duty to accommodate by allowing the disabled employee to apply for a vacant position for which he or she was qualified; however, the employer had no duty to award the position to the disabled employee if he or she was not the most qualified candidate.

An "Indefinite Reprieve" of Essential Functions of Job Not a Reasonable Accommodation under the ADA

In light of the EEOC's litigation over automatic termination provisions under the ADA (we've beaten you over the head with it here and here),

An indefinite exemption from the essential functions of a job is not a reasonable accommodation under the ADA.

An issue that confounds employers on a regular basis is whether the discharge of an employee who is unable to return to work after a medical leave will violate the American with Disabilities Act (ADA). Most employers understand their obligation to engage in an interactive process to determine a reasonable accommodation that will assist the employee in returning. But questions often arise regarding whether to allow the employee a reprieve from undertaking the essential functions of the job to which he or she is returning, and whether that reprieve can be for an indefinite period of time.

Employer Best Practices for Analyzing Whether Leave Beyond FMLA is an "Undue Hardship" under the ADA

The scenario is all too common: An employee takes and exhausts 12 weeks of FMLA leave and still cannot return to work. At this point, the employer is left with a dilemma -- does it terminate employment because the employee cannot immediately return to work, or does it consider approving more leave than the 12 weeks provided for under the Family and Medical Leave Act? This series of events is a regular trap for employers and, often enough, an employer gets ensnared in the trap without first analyzing its obligations under the Americans with Disabilities Act.

Employers Need Not Stand for Predecessor’s Accommodations

Recently, the U.S. District Court for the Northern District of Georgia held that a successor employer lawfully refused to continue granting an accommodation made by its predecessor.

Seventh Circuit underscores a circuit split on preferential reassignment of disabled individuals to open positions.

The Federal Circuits currently are split on the issue of whether the ADA requires reassignment of disabled employees to vacant positions when a more qualified candidate exists, with the 10th Circuit and the District of Columbia Circuit holding that the ADA creates preferential treatment for disabled candidates, and the 7th and 8th Circuits holding that while such reassignment may be a reasonable accommodation, the ADA does not obligate employers to reassign a disabled individual if a better qualified applicant exists.

For Now, the Seventh Circuit Continues to Hold that the ADA Does Not Require Automatic Assignment to a Vacant Position as a Reasonable Accommodation, But This Could Change Soon

The Americans with Disabilities Act (ADA) generally requires an employer to make a reasonable accommodation for a qualified applicant or employee’s physical or mental limitations unless the employer can demonstrate that the accommodation would pose an undue hardship on its operations. The focus of the inquiry under the ADA often turns on whether an employer offered a reasonable accommodation, especially because the 2008 Americans with Disabilities Act Amendments Act significantly lowered the threshold for the kinds of conditions that qualify as covered disabilities.

Court Confirms that Request for Additional Leave of an Unspecified Duration is Not a Reasonable Accommodation Under the ADA

When it comes to employee leaves of absences, compliance with the overlapping requirements of the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA) can challenge even the most seasoned of human resources professionals. A recent federal court case highlights some of the pitfalls awaiting employers when an employee asks for additional leave as an accommodation under the ADA. (Valdez v. McGill)

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.

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.

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.

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.

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

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.

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?