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.
Articles about the Americans with Disabilities Act (ADA), and other issues relating to disability discrimination in the workplace.
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.
Supreme Court Declines Review of ADA Leave Obligations
Sometimes the actions a court doesn’t take can have a very big impact. The Supreme Court’s April 2, 2018 decision not to review a recent Seventh Circuit ruling is just one of the cases.
California Federal Court Says Employers Need Not Approve Multiple Leaves of Absence Where an Employee was Totally Disabled and Could Not Provide a Definite End Date to the Leave
Executive Summary: The Southern District Court of California, in Ruiz v. ParadigmWorks Group, Inc., held that an employer was not at fault for failing to grant an employee’s request for multiple medical leaves of absence where the employee was totally disabled and she could not provide a “finite end date to [her] total disability.”
Telecommuting as a Reasonable Accommodation
It’s been said that the first step toward success is showing up. But is that always required in the workplace? More to the point, is physical presence an essential function of an employee’s job? Sometimes. In a recent decision, the Sixth Circuit addressed whether physical presence was an essential job function for an in-house legal counsel employee.
Obesity and The ADA
Is obesity a disability?
Recovering Alcoholic’s Claims Dismissed Because He Did Not Show He Was “Disabled”
A federal court in New York dismissed all claims asserted by a recovering alcoholic under the Americans with Disabilities Act and the Rehabilitation Act for numerous reasons including that he did not show he was “disabled.” Johnson v. N.Y. State Office of Alcoholism & Substance Abuse Servs., No. 16-cv-9769 (S.D.N.Y. March 13, 2018).
Donations Not Accepted – ADA Does Not Require Continued Use of Leave Donation Program
Many employers have programs allowing employees to donate their own time off to another employee with serious medical or family issues. A dilemma often faced by employers with these policies is whether continued use of such donated time means the employee is not performing the essential function of attendance. On the one hand, the employee is not violating any attendance rules if the time off is donated under the program. On the other hand the employee may be taking an excessive amount of time off that is disruptive to the employee’s performance of essential job functions.
The Essential Role of the Job Description
Failure to accommodate claims under the Americans with Disabilities Act frequently stand or fall on a determination of the essential functions of the position at issue. Since the ADA requires an employer to provide a reasonable accommodation that will allow an employee to perform the essential functions of the position that the employee holds or desires, a critical piece of the accommodation analysis is identification of the essential functions. A recent ruling by the Eleventh Circuit Court of Appeals emphasizes the significant role that the job description plays in that analysis.
Public Accommodation of Service Animals and Emotional Support Animals
Executive Summary: Title III of the Americans with Disabilities Act (ADA) prohibits disability discrimination in places of public accommodation, which includes businesses that are open to the public – like shopping malls, restaurants, movie theaters, medical offices, recreational facilities, etc. As such, these entities are required to modify practices, procedures, and policies that infringe upon disabled individuals’ rights in certain circumstances. Service animal and emotional support animal accommodation has become an issue for businesses – and the media – as an increasing number of individuals have begun using emotional support animals. With that in mind, below is an analysis of the ADA public accommodation requirements for service animals, including general guidance for properly evaluating an individual’s use of service animals on or in the business premises as well as issues of accommodation for emotional support animals.
Employee’s Failure to Engage in Interactive Process to Address His Use of Opioids Dooms His ADA Claims
An employee who refused to stop using morphine and would not engage in the interactive process with his employer could not survive summary judgment on his disability discrimination and retaliation claims under the Americans with Disabilities Act. Sloan v. Repacorp, Inc., 3:16-cv-00161 (S.D. Ohio Feb. 27, 2018).
Sixth Circuit Holds Telecommuting May Be Reasonable Accommodation
Executive Summary: On February 21, 2018, the Sixth Circuit Court of Appeals held an attorney could perform the essential functions of her job while working remotely for a ten-week period. As a result, when the employer refused to permit the employee’s telecommuting request for the finite period, the employer failed to accommodate the employee in violation of the Americans with Disabilities Act, according to the court.
House Takes a Step to Curb ADA Title III Lawsuits by Serial Plaintiffs and Attorneys
In an effort to curb the onslaught of Americans with Disabilities Act (ADA)Title III lawsuits, which have increased dramatically over the past few years, the House of Representatives passed H.R. 620. The bill requires potential plaintiffs intending to bring lawsuits under Title III (for failure to remove architectural barriers to access from public accommodations) first to provide written notice to owners and operators along with an opportunity to make improvements or repair.