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Physical Ability Tests: How Employers Can Minimize Their Risks

The Equal Employment Opportunity Commission’s (EEOC) focus on challenging pre-employment testing highlights the importance of carefully validating such tests before implementing them and reexamining existing pre-employment tests to ensure they will withstand legal scrutiny. Failure to do so can result in costly investigations, charges, and lawsuits from the EEOC.

Medical Progress Needs to Be Assessed in Determining Whether an Individual Is Qualified.

A recently filed federal court case should serve as a reminder to employers that medical advances often make the impossible possible and, as a result, can make the unqualified qualified under ADA. Although the suit asserts a constitutional violation and not a claim under the ADA, the lesson is worth heeding by the conscientious non-governmental employer.

Are You Accessible In Cyberspace?—Healthcare Is Not Immune From the Latest ADA Title III Trend

Public accommodation lawsuits under Title III of the Americans with Disabilities Act (ADA) have been around for years, but traditionally involve physical barriers such as narrow parking spots or access aisles, lack of elevators, and inaccessible restrooms. Increasingly, these lawsuits are not just confined to brick-and-mortar accommodations, but involve cyberspace. For example, individuals who are visually impaired typically access organization’s websites by using certain software that reads a website’s content. If this software cannot read an organization’s website, however, a visually impaired individual may be unable to fully access its content.

Was That an Accommodation Request? What to Do When an Employee Says “I Changed My Meds”

ven something as simple as a statement that an employee has changed his or her medications can be treated as notice from an employee that an accommodation might be needed. An employee need not use any particular words or phrasing to request an accommodation; he or she need not even use the word “accommodation.” The key is that the employee has given his or her manager notice that a health condition may be affecting the employee’s ability to do his or her job. Employers may want to train managers to recognize these types of statements as notice that a reasonable accommodation may be needed and initiate the interactive process upon hearing such statements.

Whopper of a Tale: Burger King Employee Denied Accommodation

Employees should feel safe at work. But not everyone is that fortunate, including an assistant manager at a Burger King who was attacked at gunpoint when attempting to make a bank deposit on behalf of his employer. He allegedly suffered from PTSD and depression. Burger King denied his request for an accommodation by changing his work schedule prompting an interesting decision.

First Circuit Finds Termination of Employee for Inability to Work Rotating Schedule Did Not Violate the Americans with Disabilities Act

Executive Summary: Recently, the United States Court of Appeals for the First Circuit, in Sepulveda-Vargas v. Caribbean Restaurants, LLC, affirmed a lower court’s decision in favor of the employer in a lawsuit alleging violations of the Americans with Disabilities Act (ADA), finding that the plaintiff, an assistant manager, was not a “qualified individual” under the ADA based on his inability to work rotating shifts, since the ability to work rotating shifts was an essential job function of the assistant manager position. The Court of Appeals further found that a temporary accommodation, which permitted the plaintiff to work a fixed schedule, did “not mean that [the employer] conceded that rotating shifts was a ‘non-essential’ function.” Finally, the First Circuit found that the employee’s claim of a retaliatory hostile environment was properly dismissed, since the district court found that “collectively [the alleged incidents] amount[ed] to nothing more than the petty insults and minor annoyances which are insufficient to constitute an adverse employment action under the ADA.” The First Circuit is the federal appeals court with jurisdiction over the federal district courts in Maine, Massachusetts, New Hampshire, Puerto Rico and Rhode Island.

A fully Qualified Promise is No Promise

As law students learn early in first year contracts, not every statement is an enforceable promise. That point formed the basis of a recent decision from the United States District Court for the District of Vermont. See Noel v. Walmart. The case concerned the termination of a pharmacist who suffered from trypan phobia (a fear of needles that causes nausea, dizziness and fainting at the sight of a needle) because he could not administer immunizations for Walmart customers—something that Walmart had determined to be an essential job function.

Dear Littler: How Should We Approach an Employee Showing Signs of Cognitive Decline?

Dear Littler: We have an employee who is exhibiting signs of dementia or some other sort of cognitive impairment. He has fallen asleep at work a few times recently and seems confused by tasks that did not pose any problem for him in the past. His performance was solid for years but started declining in the past several months, along with his attention to detail. How do we handle our concerns about his well-being and performance? Should we ask him what’s going on with his health?

Can We Fix It? Eighth Circuit Answers: Yes, We Can!

ADA Title III claims have become a trap for many unsuspecting businesses. The claims often lead to protracted litigation driven by attorney fees rather than the underlying issue.

“Vaccinate” Your Mandatory Flu Shot Policies Against Litigation

As we have just survived one of the worst flu seasons in recent memory, now is a good time to consider whether you should implement or revise a mandatory flu shot policy for 2018. The Center for Disease Control and Prevention recommends all United States healthcare workers obtain annual flu vaccines.