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Total Articles: 25

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.

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).

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.

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.

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.

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.

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.

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.

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).

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.

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.

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.

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.

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.

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.

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.
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