Executive Summary: The dramatic inconsistency between federal and state law with regard to the use of marijuana may mean that employers with zero tolerance policies for marijuana use will face an increasing likelihood of litigation over the termination of employees who violate such policies.
Articles about the Americans with Disabilities Act (ADA), and other issues relating to disability discrimination in the workplace.
In Weaving v. City of Hillsboro,1 the U.S. Court of Appeals for the Ninth Circuit waxed nostalgic by reversing a jury and lower court finding that a police officer with Attention Deficit and Hyperactivity Disorder (ADHD) had a “disability” within the meaning of the 2008 amendments to the Americans with Disabilities Act (ADA). The Ninth Circuit held that the former officer was not disabled, because his ADHD – and associated abrasive behavior toward colleagues – did not substantially limit him in the major life activities of working or interacting with others. Before the amendments to the ADA, this decision might not have been noteworthy. Given the far more expansive interpretation of “disability” under the 2008 ADA Amendmendts Act (ADAAA), however, the Weaving case assumes the aura of a “Man Bites Dog” story by resisting the tendency of courts to err on the side of finding threshold protection under the ADAAA.
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.
“[R]easonable accommodations…are all about enabling employees to work, not to not work.”1 This fundamental insight guides the recent decision by the U.S. Court of Appeals for the Tenth Circuit, holding that a six-month, inflexible leave policy is virtually always “more than sufficient” to comply with the Rehabilitation Act, and by implication, the Americans with Disabilities Act (ADA).2 The court provided employers with refreshingly clear guidance on how to best structure leave policies to avoid exposure for disability discrimination claims.
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.
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).
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).
Many employers require that applicants pass a pre-employment medical exam to ensure they are physically capable of doing the job. Employers should be aware that pre-employment medical exams, while not categorically barred, could violate several federal statutes and draw unwanted attention from the Equal Employment Opportunity Commission (EEOC or the Commission).
Congress passed the Americans with Disabilities Amendments Act of 2008 (ADAAA) over five years ago on Sept.17, 2008. The act’s stated purpose was to reinstate “a broad scope of protection to be available under the ADA” as the result of several decisions from the U.S. Supreme Court that had created an “inappropriately high level of limitation necessary to obtain coverage under the ADA.”
In late January, the U.S. Court of Appeals for the Fourth Circuit held in Summers v. Altarum Institute Corp., No. 13-1645 (4th Cir. Jan. 23, 2014), that “a sufficiently severe temporary impairment may constitute a disability.” This opinion is the first published federal appellate court opinion to apply the expanded definition of disability contained in the Americans with Disabilities Act Amendments Act of 2008 (ADAAA).
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.
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).
On August 27, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs announced a Final Rule that makes changes to the regulations implementing Section 503 of the Rehabilitation Act of 1973, as amended (Section 503) at 41 CFR Part 60-741. Section 503 prohibits federal contractors and subcontractors from discriminating in employment against individuals with disabilities, and requires these employers to take affirmative action to recruit, hire, promote, and retain these individuals. The Final Rule strengthens the affirmative action provisions of the regulations to aid contractors in their efforts to recruit and hire individuals with disabilities and improve job opportunities for those individuals, as well. Thus, the rule also makes changes to the nondiscrimination provisions of the regulations to bring them into compliance with the ADA Amendments Act of 2008.
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.)
Executive Summary: The Sixth Circuit has reversed the decision of a lower court and held that a deaf individual should be permitted to proceed to trial on his claim that a prospective employer discriminated against him on the basis of disability by failing to hire him as a lifeguard. Keith v. County of Oakland, (6th Cir. Jan. 10, 2013). In reviving the Americans with Disabilities Act (ADA) claim, the Court found that a jury should be permitted to determine whether the individual was otherwise qualified to be a lifeguard, with or without accommodation, that is, whether hearing is an essential function of the job and, if so, whether reasonable accommodations could have been made.