Disability, Leave & Health Management Blog : Attorneys & Lawyers for Employer Legal Protections in Businesses Nationwide

“Severe obesity” is a disability under the ADA and a plaintiff need not prove an underlying physiological basis for it, according to a Louisiana federal court. The court denied the employer’s motion for summary judgment. EEOC v. Resources for Human Dev., E.D. La., 12/7/11).

Noting that there is no federal law prohibiting discrimination based on obesity, the court reviewed decisions by courts of appeals which had previously considered whether obesity is a disability under federal laws prohibiting discrimination on the basis of a disability. The Second and Sixth Circuits had held in ADA cases that morbid obesity was not an impairment, and thus not a disability under the ADA, except where the obesity related to a physiological disorder. The First Circuit had held in a Rehabilitation Act case that morbid obesity was a physical impairment.

The plaintiff oversaw a day care program for children. When hired, she weighed more than 400 pounds; when terminated eight years later, she weighed 527 pounds.  She died while her discrimination charge was pending; the EEOC filed this suit on behalf of her estate.

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A plaintiff who thought she had the swine flu, and thought she had an ADA claim when she was terminated after four days of absence for the flu, had neither. Lewis v. Florida Default Law Group,P.L. (M.D. FL Sept. 15, 2011).

The plaintiff was diagnosed with “seasonal flu” but “understood” she was diagnosed with the H1NI virus, the swine flu.  Her doctor testified that he never diagnosed her with H1N1. When she returned to work after the four days, the company terminated her because her absences were “just too much.”  She had “substantial attendance issues” prior to these four days, according to the court.

The plaintiff claimed she was terminated because she had or was perceived as having been infected with the H1N1 virus. The court rejected plaintiff’s claim that her flu, whether seasonal or swine, was an actual disability, noting that even if her symptoms were impairments, they were of short duration and, as a result, did not substantially limit any major life activity. 

The court also dismissed her “regarded as” claim because her impairments were transitory and minor. The symptoms of the 2009 H1N1 virus included fever, cough, sore throat, runny or stuffy nose, body aches, headache, chills, fatigue and, for some, vomiting and diarrhea, “specifically the type of impairments that the ‘transitory and minor’ exception’ was intended to cover,” the court added.

Whether particular flu strains are disabilities under the ADA has been an intriguing issue since the avian and swine flu outbreaks a few years ago.  The Lewis case is one of the few decisions to do this analysis.  

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A drug testing protocol for both legal and illegal drugs was an unlawful medical examination, and the follow up questions about lawful drug use were unlawful disability-related inquiries, according to a federal district court in Tennessee. Bates v. Dura Automotive Systems, Inc., (Aug. 29, 2011). The court rejected the company’s motion to set aside a jury verdict for the plaintiffs. The jury had found that the examination and inquiries were not “job-related and consistent with business necessity,” as required by the ADA.

Rejecting Dura’s arguments that the punitive damage award should be set aside, the court cited testimony that “the most likely explanation” for the policy was that the company “was attempting to ‘run off’ older employees with higher medical and prescription drug costs;” that the company refused  to consider individual circumstances or medical authorizations stating that the plaintiff could work safely while on the prescription medications; and that a plaintiff who failed the initial panel test was allowed to continue working on an important project but was terminated after failing a random test following completion of the project.

A test to determine the illegal use of drugs is not a medical examination under the ADA and inquiries concerning current use of illegal drugs are not unlawful inquiries. An employer who ventures beyond the “illegal use” parameter must establish that  its examinations and inquiries are “job related and consistent with business necessity.” An employer should ensure its drug testing protocol tests for illegal drugs only and that its drug testing vendor is following that protocol.                     

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Recall the incontinent court reporter. She had a steady assignment compatible with her medical condition until the chief judge required court reporters to rotate through all courtrooms.  In the lawsuit challenging the court reporter’s termination, the court held that rotating was an essential function of the court reporter’s job and because she could not do this with or without an accommodation, she was not a qualified individual with a disability. Gratzl v. Office of the Chief Judges of the 12th, 18th, 19th and 22nd Judicial Circuits (April 7, 2010).

Now consider the bridge worker for the Illinois Department of Transportation, Miller, who developed acrophobia, or fear of heights. Bridge workers have various responsibilities, some of which are performed at significant heights. Initially, the employer allowed other members of his team to do the bridge work at heights.  Assigned to change a bulb while standing on a bridge beam wearing a lifeline, Miller had a panic attack. IDOT denied his request that he be excused from working on bridge beams and other extreme places over 20-25 feet. When discharged for an unrelated reason, Miller sued, claiming that IDOT failed to accommodate his disability. The district court granted IDOT’s motion for summary judgment, holding that working at heights above 25 feet was an essential function of Miller’s job. The Seventh Circuit reversed and remanded the case for trial. Miller v. Illinois Dep’t of Transportation (May 10, 2011).

Why did the acrophobic bridge worker fare better than the incontinent court reporter? The key is how work was assigned. The court required all court reporters to rotate through all positions and the ability to do so was an essential function. But the bridge workers worked as a team, reassigning tasks among themselves according to abilities, preferences, and limitations. The court held that a reasonable jury could conclude that while some members of the bridge crew needed to be able to work at heights in exposed or extreme positions so that that bridge crew—as a unit—could do its job, each member of the bridge crew did not have to be able to do every task.

The message from this case is clear: if an employer believes that an employee’s ability to do all of the tasks involved in a position is essential, the employer should communicate this requirement, and then enforce it.  Conversely, if employees work as a team, it may not be essential that each member of the team be able to perform each assignment.

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When an employee complains of harassment, the employer response is to investigate and take appropriate remedial action. In Kagawa v. First Hawaiian Bank/Bancwest Corp., the employer responded accordingly and is now a defendant in an ADA “regarded as” claim.

The plaintiff, a Senior Credit Analyst, alleged that she is a mystic, hears God’s voice directly, and had a dream in which God told her that another bank employee had romantic feelings for her. She alleged that after she told that employee about her dream, her supervisors told her that the employee felt harassed by her comments. The company told the mystic not to have any contact with the other employee, directed her to read the company’s sexual harassment policies and ordered her to seek counseling “under threat of termination.” The company placed her on administrative leave.

The plaintiff attended a counseling session and alleged that the counselor told her to see a doctor, which she refused to do because she was not willing to pay for the appointment. The bank terminated her employment.

The plaintiff’s lawsuit includes numerous discrimination claims. The employer moved to dismiss the ADA claim. Calling it a “close case,” the Court denied the motion, noting that: the bank ordered her to go to counseling or be fired; the manager’s statement on the counseling report that she ““hears a voice” and would do whatever the voice told her to do.” could be misleading since the mystic claimed she hears God’s voice, and “not just any voice” like “some insane person”; and the counselor told her to see a doctor, which the court understood to mean a psychiatrist of psychologist. Taken together, the court said, the plaintiff has plausibly alleged that the bank regarded her as having some kind of mental illness.

The Court’s denial does not mean the plaintiff has won; the case moves to the next stage of litigation. However, the denial is a reminder that whenever an employer talks to an employee about counseling, whether it be a voluntary or mandatory referral, whether it be with an altruistic motive or as part of disciplinary action, the possibility of an ADA “regarded as” case looms. As this case illustrates, that risk exists even when the counseling is part of the “appropriate remedial action” taken in response to a complaint of harassment.

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Reversing summary judgment for the employer, the Second Circuit said that “in certain circumstances, an employer may have an obligation to assist in an employee’s commute” to work as a reasonable accommodation.  The Court cited its observation in an earlier decision that “there is nothing inherently unreasonable…in requiring an employer to furnish an otherwise qualified disabled employee with assistance related to her ability to get to work.” Nixon-Tinkelman v. NYC Dep’t of Health and Mental Hygiene (Aug. 10, 2011).

At least four other circuit courts have taken the opposite view and held that the commute is not part of the work environment that an employer is required to reasonably accommodate.  The EEOC also said in a 2001 informal discussion letter that “it is the employee’s responsibility to arrange how s/he will get to and from work” and that the ADA does not require an employer to provide commuting assistance as a form reasonable accommodation. 

The Second Circuit remanded the case and directed the district court to consider whether defendants could have reasonably accommodated plaintiff’s needs by transferring her back to her prior worksite or another closer location, allowing her to work from home, or providing a car or parking permit. The Court provided a non-exclusive list of factors for the district court to evaluate in making this determination. They included the number of employees employed by the defendant, the number and location of its offices, whether other available positions existed for which plaintiff showed that she was qualified, whether she could have been shifted to a more convenient office without unduly burdening the defendant’s operations, and the reasonableness of allowing her to work without on-site supervision.

Employers within the Second Circuit and in other Circuits which have not addressed the issue should be cautious when presented with a request for commuting assistance. While this conflict in the circuits may wend its way to the United States Supreme Court, that may take years and until then, the law of the circuit in which the case is pending applies.

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An Ohio manufacturer has paid $120,000 to settle sex and disability claims with allegations of unlawful discrimination relating to an individual’s caregiver responsibilities. According to the EEOC's press release, the EEOC had alleged in its 2010 lawsuit that The Timken Company had denied a part time employee a full time position because she was the mother of a disabled child and that one or more managers believed that the woman would be unable to work full time and care for her child.

The EEOC had alleged that the company had hired men with disabled children as full time employees and had discriminated against the part time employee due to her association with her disabled child.

In 2007, the EEOC had issued enforcement guidance on the “Unlawful Disparate Treatment of Workers with Caregiving Responsibilities.” The EEOC stated then that the guidance was “not intended to create a new protected category but rather to illustrate circumstances in which stereotyping or other forms of disparate treatment may violate Title VII or the prohibition under the ADA against discrimination based on a worker’s association with an individual with a disability.” The allegations underlying the EEOC’s allegations against The Timken Company seem to track its guidance fairly closely.

The two year consent decree also required the company to provide anti-discrimination training to its managers, supervisors and employees at the facility where the incident occurred, post a notice and provide periodic reports to the EEOC on its hiring practices.

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It seems anomalous for an individual to be both a former and current user of illegal drugs at the same time. But perhaps not so anomalous under the ADA, according to the Tenth Circuit’s recent decision in Mauerhan v. Wagner Corporation.

The ADA exempts from its protection those who are current users of illegal drugs, but protects those who have successfully completed a drug rehabilitation program and are no longer engaging in the illegal use of drugs. When an individual leaves a drug rehabilitation facility after completing a rehabilitation program, is the individual a current or former user of illegal drugs? The court held that there is no “bright line” to distinguish a current from a former user. The court held that an employee who had not used drugs during his one month inpatient rehabilitation program was nonetheless a current drug user under the ADA when he applied for his former position the day after completing the program. Contrary to what the terms may suggest, the distinction between current and former user “is not based solely on the number of days or weeks that have passed since an individual last illegally used drugs,” the court said. Rather, the test is based on the employer’s perspective: someone no longer using drugs may nonetheless be “currently engaging in illegal use of drugs” under the ADA if the use “was sufficiently recent to justify the employer’s reasonable belief that the drug abuse remained an ongoing problem.”

As Humpty Dumpty told Alice in Through the Looking Glass: “When I use a word…it means just what I choose it to mean – neither more nor less.” And under the ADA, when it comes to users of illegal drugs, former may mean current.   

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Employers who use financial incentives to motivate employees to complete health risk appraisals as part of their group health plans can breathe a little easier.  Relying on the ADA's "safe harbor" for insurance practices, a Florida federal district court has rejected a class action lawsuit challenging Broward County's use of a $20 surcharge to motivate completion of a health risk appraisal. 

As we previously reported, this case is extremely important for many employers.  Health risk appraisals often are the cornerstones of wellness programs and financial incentives are critically important tools to drive employee participation and, in turn, outcomes.

Because the Court found that the employer's actions were protected by the ADA's safe harbor provisions, it did not decide the employer's alternative argument that the wellness program was a voluntary wellness program under the ADA. 

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Michael Broadway’s employer gave him 18 disciplinary warnings for absenteeism during a 3 ½ year period.  According to the court in Broadway v. Sypris Technologies, Inc., the company either terminated or threatened to terminate Broadway three times, only to relent when Broadway produced doctor’s notes for his absences. 

At about the time the company rescinded Broadway’s last termination, the company laid off a number of employees, including Broadway.  A few weeks later, the company sought to recall him by leaving him a message and sending him a certified letter, which he did not pick up at the post office. When the company did not hear from Broadway, it terminated his employment.   

Broadway claimed that his termination was in retaliation for taking FMLA leave, among other reasons. He pointed to his employer’s requiring him to produce medical documentation as a condition of not terminating him on one occasion, and by assessing an attendance point for an FMLA-covered absence. The court rejected Broadway’s FMLA claim, noting that he offered no evidence to cast doubt on his employer’s legitimate business reason for termination, i.e., Broadway’s failure to return from layoff.

This straightforward case demonstrates some basic FMLA principles in action. The first is that an employer may terminate an employee who has taken FMLA for legitimate business reasons unrelated to the FMLA leave. Second, an employee who has taken FMLA leave and is terminated for unrelated reasons is likely to be able to plead a retaliation complaint. Third, merely pleading that complaint is enough to get an employer to court, but not enough to prevail; a plaintiff must establish a “causal connection” between taking FMLA leave and the termination, which Broadway was unable to do.  When assessing the risk of terminating an employee who has taken FMLA leave recently, an employer should review these three principles from Broadway.

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Nuance is important in legal analysis. A recent 6^th Circuit case dealing with employer policies requiring an employee returning from sick leave to provide a doctor’s note illustrates the point.  

In Lee v. The City of Columbus, the 6^th Circuit held that the Columbus Police Department’s requirement that the doctor’s note include the “the nature of the illness” was not an unlawful, disability-related inquiry under the Rehab Act.

In 2003, the Second Circuit held  in Conroy v New York State Dep’t of Correctional Services, that the employer’s requirement that employees submit a doctor’s note with a “general diagnosis” was an unlawful disability-related inquiry under the ADA because it “may tend to reveal” a disability.

Is there a difference between the “nature of an illness” and a “general diagnosis”? The 6^th Circuit said that the former is “less specific” than the latter. Merriam Webster would likely agree. It defines “nature” as “a kind or class usually distinguished by fundamental or essential characteristics.”  It defines “diagnosis” as a statement or conclusion from “an analysis of the cause or nature of a condition…” Thus, it seems that from the broader “nature” comes the more specific “diagnosis.” But that hardly explains why the “general diagnosis” statement is an unlawful disability-related inquiry because it is likely to reveal a disability, while a statement of the “nature of the illness” is not. 

Many employers have attendance policies requiring an employee to produce a doctor’s note in defined circumstances. In light of the Lee and Conroy cases, employers with such policies should review the wording of the requirement carefully because, as we know, nuance is important.

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The EEOC has released an unofficial version of the much-awaited Final Regulations implementing the ADA Amendments Act (ADAAA). The official version, published in the Federal Register, will be released tomorrow. The Final Regulations become effective 60 days from March 25, 2011, the day they will be published in the Federal Register, The EEOC also has posted Questions and Answers and a Fact Sheet on the Final Rule. Our Disability, Leave and Health Management Practice Group is reviewing the Final Regulations and will analyze the practical implications they will have for ADA compliance and defense strategies. Stay tuned.

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The U.S. Department of Justice announced recently that it settled claims alleging failure to comply with Title II of the ADA with Des Moines, Iowa, the 188th settlement under its Project Civic Access initiative. Title II prohibits discrimination against individuals with disabilities by state and local governments and has very specific requirements to ensure that programs and services are accessible to individuals with disabilities. For example, a government entity must conduct a self-evaluation of its services, policies, and practices; notify applicants, participants, beneficiaries, and other interested persons of their rights and the city’s obligations under Title II and the Department’s regulation; designate a responsible employee to coordinate its efforts to comply with and carry out the city’s ADA responsibilities; establish a grievance procedure for resolving complaints of violations of Title II; and operate each program, service, or activity so that, when viewed in its entirety, it is readily accessible to and usable by individuals with disabilities.

 The Department of Justice has been doing compliance reviews as part of its Project Civic Access since 1999. In addition to physical access, the compliance reviews focus on access to such services as 9-1-1 emergency calling, websites and web-based services. The Department stated that it initiates most of the compliance reviews and that, in selecting a municipality for review, proximity of a university or tourist attraction has sometimes been a factor. 

The settlement agreements are available on the DOJ’s website.

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The EEOC reported a record number of private sector discrimination charges filed in FY 2010, nearly reaching the 100,000 mark.  99,922 charges were filed in FY 2010, an increase of 6,645 (7%) from FY 2009. The most frequently filed charges were retaliation (36%), race discrimination (35.9%), and sex discrimination (29.1%).

Disability discrimination charges increased more compared to FY 2009 (17.3%) than any other type of charge. More than 25,000 ADA charges were filed, which was about 25% of the charge total. During FY 2010, the EEOC resolved 24,401 ADA charges. More than 62% of them were resolved with a “no reasonable cause” finding. The nearly 2,600 settlements of ADA charges resulted in $76.1 million in monetary benefits to the charging parties, which is an average of more than $29,000 per settlement.

201 charges were filed under GINA. Nearly 68% of those were resolved with a “no reasonable cause” finding.

With new regulations to implement the ADA Amendments Act anticipated this year, and new GINA regulations effective January 2011, it is quite likely that this upward trend in the number of charges relating to workplace medical issues will continue in FY 2011  

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 The "law" or "lore" requiring employers to accommodate employees by excusing absence has reshaped employer attendance and productivity expectations.  Some say the law, as interpreted by the Equal Employment Opportunity Commission, goes too far and creates an elusive and unworkable standard for managing employee attendance and productivity.　

To assist our clients and contacts in separating "law" from "lore" when analyzing and making these accommodation decisions, we have prepared a two part Special Report on excusing absence as a reasonable accommodation under the ADA. Part 1, published in May 2010, dealt with "blocks of leave. and can be found here. We recently published Part 2, which deals with the unpredictable "day here, day there" absences. As you will see from the discussion in Part 2, the cases involving　 unpredictable "day here, day there" absences are more favorable to employers than the "leave limits" cases we discussed in Part 1.

We received many positive comments about Part 1. We look forward to your comments on Part 2.

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Let’s start with the cats. The Supreme Court of the United States heard oral argument recently in Staub v. Proctor Hospital, a case involving an employer’s “cat’s paw” liability, a theory derived from  17th Century French tale about a conniving monkey who convinces a cat to knock chestnuts from a fire to the monkey; the cat uses her paw to do so. Translated to employment law, the theory is that a manager desiring to terminate an employee for discriminatory reasons (the monkey) manipulates another manager who does not have a discriminatory motive (the cat’s paw) to make the decision to terminate the employee. Absent a discriminatory motive, the termination could not be unlawful, the employer argues. In Staub, the plaintiff claimed his termination violated USERRA because his supervisor had an anti-military bias but a hospital administrator without any such bias—the cat’s paw--made the termination decision. In many ADA termination cases, the employer’s defense is that the decider did not know the plaintiff had a disability---although other managers may have known--so it could not possibly have terminated the employee for a discriminatory reason. The Staub decision will likely affect the scope of this defense.

Now the dogs. The ADA prohibits discrimination against dogs, service dog breeds to be more specific.   Some cities have outlawed certain breeds based on safety concerns, whether real or perceived. The U.S. Department of Justice’s recently issued final rule adopting accessibility standards states that the DOJ “does not believe that it is either appropriate or consistent with the ADA to defer to local laws that prohibit certain breeds of dogs based on local concerns that these breeds may have a history of unprovoked aggression or attacks”  when assessing the rights of disabled individuals to use service dogs. Such deference would limit the rights of disabled individuals who use service animals “based on where they live rather than on whether the use of a particular animal poses a direct threat to the health and safety of others,” according to the DOJ.

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The class action wave seems to have come ashore for employers using financial incentives to drive participation in wellness programs.  Leveraging the uncertain legal environment we have discussed previously, a federal district court in Florida granted class certification to current and former employees charged a $20 bi-weekly surcharge for not participating in a "voluntary" wellness program requiring biometric testing (finger stick for glucose and cholesterol) and completion of an online health risk assessment.   

The federal court complaint, filed on August 10, 2010, sought a class of all current and former employees who are/were enrolled in Broward County's health insurance plan since the inception of its 2009-2010 "voluntary" wellness program, approximately 5,000 individuals.  Alternatively, the complaint sought a class of 267 current and former employees who, in addition to being enrolled in the applicable health plan, paid the $20 bi-weekly surcharge.  In addition to declaratory and injunctive relief and attorneys' fees, the complaint initially sought to recover damages for the 267 class members who allegedly paid surcharges and emotional distress damages for an unidentified portion of the larger 5,000 employee class who allegedly participated in the "voluntary" wellness program out of fear of losing $20 from their pay each and every week on a go-forward basis.    

In its December 6, 2010 Order, the Court grants class certification for the smaller class of individuals who allegedly were enrolled in the health plan and paid the $20 surcharge, finding that plaintiff had satisfied both Rule 23(a) and Rule 23(b)(3) requirements for class certification.  The Court's Order does not discuss whether a class could have been certified under Rule 23(a) or (b) for the larger class referenced in the complaint.  Apparently, the sole named plaintiff, Bradley Seff, voluntarily withdrew his claims for declaratory and injunctive relief after Broward County claimed he resigned his employment and, therefore,lacked standing to seek such relief on behalf of the class.    

As the Court noted in its Ruling, the crux of the case is whether Broward's "voluntary" wellness program is voluntary within the meaning of the ADA.  In discussing Rule 23(a) requirement of "commonality", the Court wrote, "[b]ecause Broward's policy applied to all employees who enrolled in the health benefits program, and the class is limited to those employees who incurred a charge, it is likely that these issues can be resolved without individualized factual or legal inquiries."

Many employers believe reasonable incentives, whether framed as premium discounts or surcharges, do not violate the ADA's requirement that medical inquiries be either voluntary or "job-related and consistent with business necessity."  While such programs pass muster under HIPAA, unfortunately, the absence of caselaw continues to create uncertainty over the legality of such programs under the ADA. 

It will be interesting to see whether the Broward County case moves to a ruling on the merits.  it would be nice to have a court weigh in on whether reasonable surcharges violate the ADA.  Until employers receive such guidance, uncertainty will continue to hover over these very valuable programs.

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Title II of GINA prohibits the use of genetic information in employment, restricts employers from requesting, requiring or purchasing genetic information, and limits employers from disclosing genetic information. We posted recently that, according to the EEOC’s newly-issued regulations, an employer who engages in certain internet searches has illegally requested genetic information.

An employer who “actively listen[s] to third party conversations” and overhears genetic information, such as family medical history, also violates GINA, according to those regulations. “Inadvertent” acquisition of genetic information, which includes “passive” acquisition, is not illegal. The final regs state that where a manager or supervisor “learns genetic information about an individual by overhearing a conversation between the individual and others,” that acquisition is inadvertent. The proposed regs also noted that an employer “inadvertently acquires family medical history where a manager or supervisor overhears a conversation among co-workers that includes information about family medical history (e..g., a conversation in which one employee tells another that her father has  Alzheimer’s disease).”

So a supervisor or manager’s “active” listening to a conversation which refers to genetic information is unlawful but “passive” overhearing is not.  The regulations give no guidance as to how to distinguish one from the other, if such a difference even exists. This nuanced auditory distinction gives employers a strong reason to train supervisors and managers to make sure they do not engage in unlawful listening!  

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You are not interested in the deoxyribonucleic acid (DNA) of your employees. The thought of collecting their DNA or anything about it has never crossed your mind. So why should you spend the three hours the EEOC says it will take to “gain a satisfactory understanding” of the recently released final regulations for Title II--the employment provisions--of the Genetic Information Nondiscrimination Act of 2008 (GINA)?  Because if you do any of the activities listed below, these regulations will likely affect how you do them:

 ·  You use the internet to research applicants or employees;

·  You do post-offer, pre-employment physical examinations;

·  You seek medical information when an employee requests a reasonable accommodation;

·  You request medical certification to support leave requests under a state or federal family and medical leave law, or under a personnel policy;

·  You have a wellness program which includes a health risk assessment;

·  You issue or respond to discovery requests or subpoenas for medical information in employment litigation.

Larger employers likely engage in all of these activities; all but the smallest employers engage in at least one of them. So how will GINA affect how these activities are done? More to follow on that one, but employers have less than two months, until January 10, 2011, to “gain a satisfactory understanding” of, and comply with, these GINA regulations. 

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The EEOC this week sued a grocery store chain, claiming it had violated the ADA by firing an employee due to her 10 pound lifting restriction. The case is worth watching since it deals with an employer’s ability to change the essential functions of a job which results in terminating an individual who had been a qualified individual with a disability prior to the change, but was no longer so.  

According to the EEOC’s press release. Kimberly McMillan-Goodwin, a gas station clerk, had successfully performed her duties with the lifting restriction for years. When she returned from a leave, the employer “claimed it had changed the position so that she could not longer perform her job with her long-standing restriction, and that it had no other positions she could perform.” The employer then placed her on a one year leave of absence, and terminated her at the end of that period, according to the press release.  In its Complaint, the EEOC alleges that McMillan-Kimberly was a “qualified individual with a disability …and could perform the essential functions of the position from which she was removed.” Because theEEOC’s Complaint is pled so broadly, it is unclear whether the EEOC is alleging that McMillan-Kimberly could perform the essential functions of the changed position or that Woodman’s changed the job because of her lifting restriction, or some other theory.

We have visited this issue before.Recall once again the incontinent court reporter, hired as a control room specialist, whose job changed when the chief judge required all court reporters to rotate through all courtrooms.  The Seventh Circuit affirmed summary judgment for the employer, holding that “an employer is not required to maintain an existing position or structure that, for legitimate reasons, it no longer believes is appropriate” and that the plaintiff was not a qualified individual with a disability for the changed position.  The EEOC’s 1992 Technical Assistance Manual recognizes that jobs may change: “The ADA does not limit an employer's ability to establish or change the content, nature, or functions of a job.”

But recall also our post on the Workplace Prof Blog, which opined that an employer’s ability to change essential functions is an ADA “loophole.” “After the ADAAA’s expansion of the definition of ‘disabled,’ employers will be looking for more ways to avoid the accommodation duty. This one seems tailor-made: change job descriptions and thus, essentially, eliminate disabled employees from any jobs they want—and they won’t be held liable for disability discrimination!,” the Prof said.

Neither the EEOC’s press release nor Complaint against Woodman’s indicate the reason Woodman’s changed McMillan-Goodwin’s job.    We will be watching this case for further judicial guidance on the “changed jobs” issue. But in the meantime, tread carefully when changing the essential functions of a disabled employee’s position which would result in that employee no longer being a qualified individual with a disability for the changed job.

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Faced with continually increasing health insurance premiums, a growing number of employers have been implementing “workplace wellness” programs to motivate employees to lead healthier lifestyles. What legal challneges might an employer face when encouraging employers to lead healthier lives?

The Congressional Research Service (CRS), an agency within the Library of Congress which works exclusively for the United States Congress, issued a report recently entitled ‘Wellness Programs: Selected Legal Issues,’ which summarizes the legal “wellness” concerns under federal law.

The 16 page report discusses “wellness” issues under nine federal laws: the Patient Protection and Affordable Health Care Act, Health Insurance Portability and Accountability Act (HIPAA), the Americans with Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA), the Age Discrimination in Employment Act (ADEA), Title VII of the Civil Rights Act, the National Labor Relations Act, the Internal Revenue Code and Medicaid.  Because it summarizes the issues under each of these laws, the report is, in effect, a general checklist to evaluate a wellness program’s compliance with federal law. Many state laws must be considered as well.

One of the laws with the most analysis in the report is the ADA. The report notes numerous ADA issues that create compliance uncertainty, such as.

·         The ADA prohibits an employer from asking employees disability-related questions unless they are job-related and consistent with business necessity. The ADA excepts from this prohibition questions which are a part of a voluntary wellness program. The EEOC has said that the size of the incentive is a factor in determining whether a program is voluntary. In other words, the larger the incentive, the greater the risk that the program will be considered involuntary and that any disability-related inquiries asked as part of the program violate the ADA.

·         Section 501(c) of the ADA, often referred to as the insurance "safe harbor" provision, might shield from scrutiny  issues relating to the “voluntary wellness” standards in Title I of the ADA for wellness plan provisions connected to a group health insurance plan. Employers have been waiting for guidance on the application of the "safe harbor" to such plans. The report notes the existence of Section 501 but provides no analysis. 

·         The report notes that the primary goal of the ADA Amendments Act, which went into effect January 1, 2009, is to expand the scope of those who meet the definition of “disability.”  This amendment, according to the report, means “that obese individuals, those addicted to nicotine, or those with certain cholesterol or blood pressure measurements may be covered under the new language…ADA issues may be raised by certain wellness programs targeting these conditions.” Individuals with such conditions have generally not been found to be covered by the original ADA.

Because wellness programs have a positive goal and often include “rewards,”  there may be a tendency to overlook the fact that at least nine federal laws as well as state laws must be considered before implementation.  The much-anticipated ADA and GINA regulations as well as the uncertain ADA issues noted above illustrate that the law is unsettled and will be dynamic for years to come.

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Since the Americans with Disabilities Act Amendments Act was not retroactive, ADA court decisions addressing facts that arose prior to  January 1, 2009, the ADAAA’s effective date, have continued to apply the original ADA, including the now-overruled Supreme Court decisions in the Sutton trilogy and Toyota Motor Manufacturing, Kentucky, Inc. v. Williams.

Now, nearly 20 months after the ADAAA, cases based on facts occurring after January 1, 2009  have made their way through the EEOC administrative process and have reached court.  Perhaps the first ADAAA decision to reach the summary judgment stage illustrates the stark contrast between the original ADA and the ADAAA when it comes to the definition of disability.

In Hoffman v. Carefirst of Fort Wayne, Inc. d/b/a Advanced Healthcare, the plaintiff had Stage III renal cancer.  The defendant argued that the plaintiff did not have a disability under the ADA because there was no substantial limitation on a major life activity, noting that his cancer was in remission during the period that gave rise to the litigation, and he did not have any work restrictions, performed his regular job duties and did not miss any significant time from work.

The federal district court in Indiana rejected this argument summarily since the ADAAA states  that “[a]n impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.” The court noted that renal cancer would have substantially limited a major life activity when it was active. The court also relied on the EEOC’s proposed regulations  to implement the ADAAA, which lists cancer as an impairment “that will consistently meet the definition of disability.” Under the original ADA, many courts, after conducting an individualized assessment to determine whether a plaintiff with cancer was substantially limited in a major life activity, had concluded that the plaintiff was not an individual with a disability.

Given the timing of the litigation process, expect a growing number of decisions arising under the ADAAA. Given the breadth of the ADAAA, expect also that many more plaintiffs will  meet the ADAAA’s definition of disability than met the original definition. Watch also for the EEOC’s  final regulations to implement Title 1 of the ADAAA. While the date for these regulations to be issued is uncertain, it has been more than a year since the EEOC published proposed regulations.

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Recall the incontinent court reporter, hired as a control room specialist, a position compatible with her medical condition, but whose job changed when the chief judge decided to evenly distribute the workload, and required all court reporters to rotate through all courtrooms. In ADA parlance, the court changed the essential functions of the court reporter’s job. The court reporter did not claim that the court’s decision to reorganize had anything to do with her disability. When she rejected the accommodations offered her, the court terminated her employment, The Seventh Circuit affirmed summary judgment for the employer, holding that she was not a qualified individual with a disability because she was “unable to sit in the courtroom during proceedings without disrupting court.” The Seventh Circuit rejected her “circular” argument that was qualified because she was qualified for her previous job, which did not require rotating.

An employer’s ability to change the essential functions of an employee’s job “seems like a pretty big loophole [in the ADA],” according to the Workplace Prof Blog, commenting on this same case in a piece entitled "Reorganizing Away the Duty of Reasonable Accommodation." . The Prof opines that “[a]fter the ADAAA’s expansion of the definition of ‘disabled,’ employers will be looking for more ways to avoid the accommodation duty. This one seems tailor-made: change job descriptions and thus, essentially, eliminate disabled employees from any jobs they want—and they won’t be held liable for disability discrimination!”

So is the employer’s right to reorganize and change employees’ essential functions for reasons unrelated to any employee’s disability a “loophole” in the ADA? Webster defines “loophole” as “an ambiguity or omission in the text through which the intent of a statute, contract, or obligation may be evaded.” I vote “no” because the ADA was never intended to limit an employer’s ability to reorganize its operation for reasons unrelated to an employee’s disability. Despite this, the Workplace Prof Blog notes that “there seems something troubling” about the Seventh Circuit’s “endorsement of what is in effect, if not intent, an end run around the duty of accommodation.” “Something troubling” about an employer’s exercising a right for legitimate non-discriminatory reasons which affects all employees in the job description? A fundamental principle underlying our anti-discrimination laws is that employers must make decisions based on legitimate non-discriminatory reasons. To hold otherwise would require Webster to revise the definition of “discrimination.”

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The EEOC’s challenge to “inflexible” leave policies continued this week, as the agency announced that it had sued Princeton HealthCare System for failing to reasonably accommodate employees who needed medical leave. According to the EEOC press release, Princeton HealthCare "fires employees" who are not qualified for FMLA leave and refuses to grant leave beyond the 12 weeks allowed by the FMLA. The EEOC stated that Princeton HealthCare does not grant exceptions to these policies for qualified individuals with a disability who need additional leave as a reasonable accommodation. The release states that more than a dozen Princeton HealthCare employees with disabilities who requested a leave of absence as a reasonable accommodation were denied leave and fired. The case has been filed in the U.S. District Court for the District Court of New Jersey.

The Princeton HealthCare case is the latest in a growing line of cases the EEOC has brought in which the agency claims the employer has had an inflexible leave policy in violation of the ADA. In 2009, the EEOC brought a class action suit against an international package delivery company, claiming the company violated the ADA by rejecting requests for medical leave extensions beyond its 12-month leave policy.  Also in 2009, the EEOC settled a lawsuit in which the agency alleged that a national retailer was inflexible in its administration of leave policies for employees with work-related injuries.  The retailer paid $6.2 million (a “record-setting” amount, according to the EEOC) as part of a consent decree.

We have cautioned employers about the risks of having a “leave limits” policy in our Special Report on Excusing Absences as a Reasonable Accommodation under the ADA. Employers with a leave limits policy which does not allow for additional leave for disabled employees as a reasonable accommodation, bear the risk of being the subject of the next EEOC press release.  

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As part of its celebration of the 20^th anniversary of the ADA, the EEOC issued a report entitled "Twenty Years of ADA Enforcement, Twenty Significant Cases," sort of the top twenty ADA cases brought by the agency. Much can be gleaned from this ten page document and we may revisit it a few times.

First, jurors have awarded large punitive damage verdicts. Six jury verdicts are in the top twenty list. In EEOC v. CEC Entertainment, the jury awarded $13 million in punitive damages to an individual with "intellectual disabilities" who was fired from his janitor’s position at a restaurant. In EEOC v. Echostar, the jury awarded $8 million in punitive damages to a blind employee denied employment as a customer service representative. And in EEOC v. E.I. DuPont De Nemours & Co., the jury awarded $1 million to a discharged lab clerk with a spine and disc disease. In each case, the punitive damage awards were reduced to the ADA’s statutory damage caps.

Next observation: employers have been reluctant to litigate these cases. Fourteen of the top twenty cases were either resolved with a consent decree or settled for amounts that ranged from $78,000 to $6.2 million. So in 70% of these cases (admittedly, a list self-selected by the EEOC), employers preferred, for whatever reason, to pay money rather than present their cases to juries. Was it litigaphobia--a fear of litigation--that led to these resolutions? Or fear of the possibility of a lottery-size punitive damage award (see paragraph above)? Or something else?

What lessons can be learned from this top twenty analysis? They include that plaintiffs in ADA cases can be sympathetic and that jurors have meted out significant punishment to employers found to have discriminated against an individual with a disability. It reinforces the need for an employer to put itself in the best position to get a case dismissed prior to trial, especially in states with disability discrimination laws that do not cap punitive damages. An employer unable to have the case dismissed prior to trial must have a good story to present to the jury to refute the disability discrimination claim.

One last point about the top twenty list: the number one listed case is the "landmark" lawsuit alleging a national retailer had an "inflexible" leave limits policy which did not allow for reasonable accommodation. The consent decree involved a payment of $6.2 million, an amount which the EEOC described as a "the largest monetary recovery" in an ADA lawsuit. We wrote previously about the EEOC’s challenges to "inflexible" leave policies. (See Leave as a Reasonable Accommodation under the ADA)

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Does an employer’s duty to reasonably accommodate an employee’s disability include the duty to alleviate commuting challenges caused by the disability? Two courts of appeals recently held that it does unless to do so would be an undue hardship; both decisions reversed summary judgment for the employer on the ADA claims.

In both cases, the plaintiff had a vision impairment which did not interfere with her ability to perform her job. In Livingston v. Fred Meyer Stores, Inc., the plaintiff, a wine steward, could not walk or drive after dark due to her vision impairment. In 2005, the company granted her request for a modified work schedule during the fall and winter months to minimize her driving at night. When the company denied her same request for 2006, the plaintiff refused to work her scheduled shift and was terminated.

The Ninth Circuit held that the company had a duty to accommodate Livingston’s inability to finish her scheduled shift, even though her disability did not affect her ability to function as a wine steward. The court remanded the case to resolve the issue of whether Livingston’s vision impairment was a disability.

In Colwell v. Rite Aid Corp, the plaintiff told her supervisor that her partial blindness made it dangerous and difficult for her to drive at night. The company declined to schedule her on day shifts only, explaining that it “wouldn’t be fair” to other workers. After various efforts to change to day shifts, plaintiff resigned.

The Third Circuit held that employers may need to make reasonable shift changes to accommodate a disabled employee’s disability-related difficulties in getting to work. The court remanded the case to resolve the issue of whether accommodating Colwell’s shift needs would be an undue hardship.

These two decisions extend the length of an employer’s “duty to accommodate” day. That day may begin as early as the time an employee leaves home and may not end until the employee returns home. Is that the temporal extent of the duty? Or does it extend even further to disability-related issues at home related to preparing for work, or an employee’s getting to transportation from home?  For those answers, we will need to await further decisions, but at least according to these two decisions, an employer may find itself more involved in an employee’s commuting issues than it has been previously.

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Sitting in the Rose Garden on July 26, 1990, President G.W.Bush signed the Americans with Disabilities Act and, no doubt intending the historical analogy, declared it "the emancipation proclamation" for those with disabilities. To commemorate the ADA's 20th Anniversary, I am going to re-read my favorite ADA case, the Supreme Court's 2001 decision in PGA Tour, Inc. v. Casey Martin, for at least the 20th time.  You don't have to be a golf or ADA fanatic to appreciate the richness of this opinion.

The issue is stated simply: Due to a serious medical condition, PGA Tour Member Casey Martin needed to use a golf cart when competing, but PGA rules prohibited him from doing so. Martin claimed the PGA’s rule violated Title II of the ADA, which prohibits disability discrimination in public accommodations….and won.　

The Martin decision is special for so many reasons. What an incredible human interest story! Casey Martin had won 17 Oregon Golf Association junior events before he was 15 years old; was the Oregon state champ when a high school senior; was on the Stanford University golf team when it won the NCAA championship; and survived the grueling physical and mental tests to become a member of the PGA Tour. He did all of this despite having since birth, a degenerative circulatory disorder that obstructs blood flow from his right leg to his heart, which has atrophied his right leg. 　 Walking when playing caused him pain, fatigue and anxiety, and created a significant risk of hemorrhaging, developing blood clots, and fracturing his tibia so badly that an amputation might be required. How can you not root for this guy?　

It pits the very old against the very new, the golf traditions going back hundreds of years, beginning with the "Rules of Golf," first adopted by the Royal and Ancient Golf Club of Scotland in 1744, against modern-day notions of equality as encompassed in the ADA, enacted some 250 years after the Rules of Golf.　

It has celebrity appearances. Golf gods Arnold Palmer, Jack Nicklaus and Ken Venturi each testified that fatigue can be a critical factor in a tournament, especially on the last day, and that a competitor using　a cart might have an advantage over walkers.　

It refers to a rich variety of other celebrities, and what a collection it is: the New York Yankees, the American League, the designated hitter, Mary Queen of Scots, the Sopranos, Kurt Vonnegut, Harrison Bergeron, Kafka, Alice in Wonderland, Tiger Woods, Plato, John Q. Public, and George Orwell are all mentioned in the decision. Imagine a dinner party with that guest list!　

It has irony. If riding a cart creates such a competitive advantage, why do most senior tour members, who have the option to ride, walk?　

It raises legal-philosophical issues to ponder: Must a shoe store sell a single shoe to a one-legged person, or can the store insist that the buyer purchase a pair of shoes?

It’s disheartening. The decision cites the testimony of a physiology professor and expert on fatigue who determined that a golfer expends only about 500 calories walking an 18 hole round (about 5 miles), "nutritionally…less than a Big Mac." So much for golf as great exercise.

It has a Solomonic tone. Envision the nine black-robed justices pondering the essence of golf. Justice Souter, in his majority opinion, parses the game and concludes that its essence is shot-making and that walking is neither essential nor indispensable, but merely peripheral, rejecting the PGA’s argument that the walking rule’s purpose is "to inject the element of fatigue into the skill of shot-making." 　　

It has a Scalia dissent and, when it comes to disecting a majority opinion, Justice Scalia has no peers. At the outset, he notes mildly his conclusion: "[T]oday’s opinion exercises a benevolent compassion that the law does not place it within our power to impose." 　In short order, after a delightful romp through law and logic, he reaches this sarcastic crescendo:　

"If one assumes…that the PGA TOUR has some legal obligation to play classic, Platonic golf---and if one assumes the correctness of all the other wrong turns the Court has made to get to this point—then we Justices must confront what is indeed an awesome responsibility. It has been rendered the solemn duty of the Supreme Court of the United States, laid upon it by Congress in pursuance of the Federal Government’s power "[t]o regulate Commerce with foreign Nations, and among the several States,"…to decide What Is Golf. I am sure that the Framers of the Constitution, aware of the 1457 edict of King James II of Scotland prohibiting golf because it interfered with the practice of archery, fully expected that sooner or later the paths of golf and government, the law and the links, would once again cross, and that the judges of this august Court would some day have to wrestle with that age-old jurisprudential question, for which their years of study in the law have so well prepared them: Is someone riding around a golf course from shot to shot really a golfer? The answer, we learn, is yes. The Court ultimately concludes, and it will henceforth be the Law of the Land, that walking is not a "fundamental" aspect of golf." For lovers of sarcasm as a rhetorical device, it sends shivers down your spine.　

That is why PGA Tour v. Martin is my favorite ADA case of all time. And I commend it to you. Happy 20^th to the ADA!

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The ADA and FMLA collided in two cases recently and, whenever that occurs, accident reconstruction, so to speak, is in order. In Wisbey v. City of Lincoln, NE, emergency dispatcher Wisbey was granted intermittent FMLA leave for the "next 6 months or longer" because of depression and anxiety. Her FMLA paperwork prompted the City to question whether she could do her job at all. The City terminated Wisbey after a psychiatrist concluded that Wisbey was not fit for duty. The Eighth Circuit affirmed summary judgment for the City on Wisbey’s ADA and FMLA claims, but the significance of this case is in the court’s blending of FMLA and ADA concepts: 

• "the FMLA does not provide an employee ….with a right to unscheduled and unpredictable, but cumulatively substantial, absences or a right to take unscheduled leave at a moment’s notice for the rest of her career. On the contrary, such a situation implied that she is not qualified for a position where reliable attendance is a bona fide requirement (citation omitted);" 

• "Because Wisbey requested ‘intermittent leave’ for ‘six months or longer’ she did not have a right to FMLA leave."  

In Carmona v. Southwest Airlines Company, the ADA and FMLA collided once again. For seven years, Carmona, a flight attendant, was granted FMLA leave to excuse absences related to psoriatic arthritis. Since he did not work enough hours to renew his FMLA in 2005, his absences were unexcused and he was terminated for excessive absenteeism.

The Fifth Circuit rejected Southwest’s argument that Carmona was not a "qualified individual with a disability" under the ADA because he could not meet the essential function of regular attendance. and held that because Southwest "tolerated [Carmona’s] FMLA-approved absences for seven years," which permitted him to miss over half of each month without notice, regular attendance was not an essential function. The court said "if Southwest had denied Carmona’s request for intermittent FMLA leave [i.e., violated the FMLA], it might have had a strong argument that as a matter of law Carmona was not qualified to work as a flight attendant." Following this logic, regular attendance will not be an essential function of a job for anyone who has taken FMLA leave, since the employer tolerated that legally required leave.

The outcome of these two ADA-FMLA collisions? While Wisbey understates (if not misstates) the FMLA leave entitlement, Carmona punishes an employer in an ADA case for complying with the FMLA! The message from these two cases is clear: When your analysis brings you to the intersection of these two laws, proceed with extreme caution!

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Emerging technology clashes with ADA accessibility requirements, as the U.S. Department of Justice and U.S. Department of Education warn colleges and university about requiring classroom use of electronic readers. In an open letter to college and university presidents, the federal departments "express[ed] concern" that some electronic book readers "lack an accessible text-to-speech function," making them inaccessible to students who are blind or have low vision. The letter warns that requiring use of inaccessible readers is discrimination under the ADA and Rehabilitation Act unless disabled students are "provided accommodations or modifications that permit them to receive all the education benefits provided by the technology in an equally effective and equally integrated manner."

The letter comes soon after the DOJ entered into settlement agreements with numerous colleges and universities that participated in a pilot program to use Amazon’s Kindle DX in the classroom. In those agreements, the universities agreed not to require or recommend use of any dedicated electronic book reader unless it is fully accessible to individuals who are blind or have low vision, or the universities provide reasonable accommodation to enable student to acquire the same information, engage in the same interactions and enjoy the same services as sighted students with substantially equivalent ease of use.

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Reassigning an employee to a “vacant” position is a form of reasonable accommodation under the ADA. Determining whether a position is “vacant” is usually pretty easy, but not always, as illustrated by recent decisions by the Tenth and District of Columbia Circuit Courts of Appeals.

In Duvall v. Georgia Pacific, the plaintiff sought reassignment to a position occupied by temporary contract workers. Is a position filled by a temp “vacant”? The Tenth Circuit held that since the position filled by the temp was not available to a similarly situated, non-disabled employee, it was not “vacant” and was not available to the plaintiff.

Three weeks after Duvall, in McFadden v. Ballard Spahr Andrews & Ingersoll, LLP, the D.C. Circuit relied more on Webster’s Dictionary and, without articulating the Duvall analysis, ended up in pretty much the same place. The plaintiff sought reassignment as the receptionist, claiming the position was vacant because a temp was filling in for the regular receptionist, who was on medical leave. The Court concluded that the regular receptionist “held, filled or occupied” (words from Webster’s) the receptionist position, so that it was not “vacant.” The Court’s discussion suggested that it also recognized that the employer had not made the receptionist position available generally. The Court said that the employer had not sought a replacement for the regular receptionist, had not posted a job listing, and had not “otherwise acted as though it considered the position vacant.”

According to the EEOC’s Guidance, a position is “vacant” if it is available when the employee asks for reasonable accommodation or a position that the employer knows will become available within a reasonable period of time.

Other issues can complicate an employer’s responsibility to consider reassignment to a vacant position as a reasonable accommodation, such as: Must an employer train the employee to be reassigned, or provide a period of familiarization? How long after the request for reassignment does the obligation to identify vacancies end? And of course, the significant issue that the Supreme Court had agreed to hear, and then dismissed as moot when the parties settled their dispute: whether a disabled employee seeking a vacant position as an accommodation, and who meets the minimum qualifications of the position  is entitled to it, i.e., receives a mandatory preference, or must compete with others for the position.

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Sometimes it is unclear whether the employee is requesting leave that might be covered by the FMLA. This is not one of those situations. In Kobus v. The College of St. Scholastica, Inc., when the plaintiff told his supervisor in November 2006 that he would need to take time off for “stress and anxiety,” the supervisor gave him FMLA paperwork and told him he could apply for leave. The plaintiff put the papers in his drawer without reading them, and told his supervisor he “didn’t’ need any leave. Not just FMLA; any leave” because he thought he “could handle” matters.

A few weeks later, the employer disciplined plaintiff for excessive absenteeism. In January 2007, in response to the plaintiff’s comment that he would need “mental health leave,” the supervisor told him again about the FMLA and that he would need to have a doctor sign the paperwork. The employee responded that he did not have a doctor, and asked “is there any other way I can go.”

Later that afternoon, the supervisor told him “there was nothing available for [him],” and offered him two weeks’ severance pay if he resigned. The next day, he submitted a letter of resignation.

The Eight Circuit rejected the plaintiff’s claim that the College unlawfully denied him FMLA leave, holding that the plaintiff had “failed to adequately state an intent to take FMLA leave” and that “[w]hen an employee is made aware of the procedures necessary to obtain FMLA leave and chooses not to seek FMLA protection, the employer does not violate the FMLA by terminating the employee for excessive absenteeism.” The court rejected the plaintiff’s argument that the College’s FMLA policy was unclear because it said medical certification “may” be required, as opposed to “must be submitted.” 

The Eighth Circuit rejected the plaintiff’s ADA claim as well, holding that the plaintiff did not request an accommodation, and rejecting his reliance on the EEOC’s ADA Enforcement Guidance that a request for time off because an employee is “depressed and stressed” is sufficient to put the employer on notice that the employee is requesting a reasonable accommodation. “None of our prior ADA notice cases cited the Enforcement Guidance as controlling. We apply the requirement in the regulations that an employee must “inform the employer that an accommodation is needed.”

This case illustrates the benefits of having supervisors trained to recognize potential requests for FMLA leave. The supervisor’s twice offering the plaintiff FMLA leave made rejecting the FMLA claim almost a foregone conclusion. The Court’s unwillingness to follow the EEOC Enforcement Guidance is a reminder that the Guidance does not have the force of law and does not expand the scope of the ADA itself.  

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Complying with the myriad of laws affecting medical leave continues to be a significant and growing challenge for employers. Making the decision whether and when to terminate an employee on medical leave is perhaps the most challenging, and carries significant risk. The EEOC’s recent challenges to “inflexible” leave policies--which resulted in a “record-setting” $6.2 million dollar settlement—heightens the risk for employers trying to manage this challenge through “leave limits” policies.

The “law” or “lore” requiring employers to accommodate employees by excusing absence has reshaped employer attendance and productivity expectations. Some say the law, as interpreted by the Equal Employment Opportunity Commission, goes too far and creates an elusive and unworkable standard for managing employee attendance and productivity. 

To put “law” and “lore” in perspective when analyzing and making these accommodation decisions, we are preparing a two part Special Report on excusing absence as a reasonable accommodation under the ADA. Part 1 deals with “blocks of leave.” Part 2 will deal with the unpredictable “day here, day there” absences. Part 2 will be sent automatically to all of our blog subscribers.

We look forward to your comments on Part 1. Please feel free to send them along.

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When a law, such as the ADA, restricts an employer's rights to take reasonable, measured steps to promote workplace safety, it ought to be re-examined.  Years ago, Justice Souter observed that preventing employers from considering "risk to self," an ADA rule many disability rights advocates had sought, would have put the ADA at "loggerheads" with federal OSHA policy requiring employers to ensure the safety of  "each" and "every" worker.  Chevron USA, Inc. v. Echazabal, 536 U.S. 73, 85 (2002).

I have always thought that to be the case with the EEOC's exceedingly narrow interpretation of the ADA rule that employee medical inquiries be "job-related and consistent with business necessity." As interpreted by the EEOC, that requirement invalidates employee medical evaluations or monitoring that are either: a) not grounded in individualized, fact-based concerns about an employee's ability to perform essential job functions safely and successfully; or b) required by federal law or regulation.  In its Enforcement Guidance on Disability-Related Inquiries and Medical Examination of Employees under the ADA, the EEOC says periodic testing and medical monitoring of employees would be permissible in positions affecting public safety; but the Guidance limits those positions to firefighters and those involved in law enforcement and security.  It also narrowly construes the permissible breadth of such evaluations.  In an informal opinion letter issued on September 10, 2004, the EEOC declined to apply the exception to off-shore oil workers. Recent events in the Gulf illustrate the dangerous nature of oil rig work, as well as the impact on public safety should operations go awry.  

The Labor and Employment Law Blog reports that a California federal district court granted summary judgment in May to a security officer terminated after he refused to complete a medical questionnaire.  The court found the employer's inquiries in the questionnaire were too broad to meet the ADA's standard of being "job-related and consistent with business necessity."  In thinking about the decision, I couldn't help but wonder whether a more narrowly tailored inquiry would be acceptable to the EEOC in most cases (perhaps in the case at hand, Scott v. Napolitano, a more narrowly-tailored questionnaire would have received EEOC approval because, as noted above, the EEOC seems to be okay with allowing narrowly-tailored monitoring of at least some security personnel).

It's time to give greater consideration to the very real safety risks employees face everyday, and the moral and financial hazards employers face if they do not have effective tools to address them.  The EEOC's presumption that  employers use employee medical information to discriminate is not as employee friendly as some might think.  Yes, some employers might misuse employee medical information but the ADA,  and state and local law, provide ample deterrence and remedies for doing so.  And the inability of employers to take reasonable, measured steps to proactively identify employee medical risks has its costs. Just ask yourself, what's a worse outcome for an employee --being the victim of disability discrimination (for which he/she has a remedy) or suffering a potentially career or life-ending workplace injury?  

I say it's in the vast majority of employees' interests to interpret this ADA provision more broadly -- to allow employers to verify an employee's physical or mental ability to perform essential job functions safely and hold them accountable if they misuse or abuse that right.  The EEOC has the ability to interpret the standard of "job-related and consistent with business necessity" broader than it has to date.  It's time to do so ... let's put an end to ADA-OSHA "loggerheads."   

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As the ADA's 20th anniversary nears, let's revisit one of its lofty goals: to place a sweeping federal blanket over the patchwork of state and federal laws that protects individuals with disabilities.

A recent Second Circuit opinion leaves no doubt that the patchwork lives on  In Spiegel v. Schulmann, decided on May 6, 2010, a karate instructor claimed his employer fired him because he was obese due to a medical condition. According to the decision, he weighed 300 pounds and his employer told him that he was not be a good role model due to his weight.

The plaintiff sued for disability discrimination under the ADA, the New York State Human Rights  Law, and the New York City Human Rights Law.  The Second Circuit affirmed summary judgment for the employer on the ADA claim. The district court had held that even if obesity were an impairment under the ADA, plaintiff did not produce any evidence to suggest his obesity makes him “unable to perform a major life activity or significantly restricts the condition, manner or duration in which he can perform a major life activity.”  

The New York Human Rights Law protects those with conditions which prevent “the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques,“ a definition broader than the ADA’s. The Second Circuit affirmed summary judgment for the employer on the state claim, holding that weight is not a “disability” under that law unless the plaintiff produced evidence that he was medically incapable of meeting the employer’s weight requirements, which the plaintiff here did not produce.  

The New York City Human Rights Law’s definition of “disability” is even broader than the state’s, defining disability as “any physical, medical, mental or psychological impairment” of any system of the body. Since no state appellate court has decided whether obesity is a disability under the NYCHRL, the Second Circuit remanded the case to make this determination. 

One termination, three disability laws, three “disability” definitions and three different analyses…. sounds like the patchwork is alive and well. Employers assessing disability discrimination risk must consider all pieces of this patchwork to identify state and local laws offering broader protection than the ADA..

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 Many reasonable accommodation cases are resolved in court but a court is not usually the defendant. But such was the case when a court reporter sued the Office of the Chief Judges of various Illinois circuit courts for failing to accommodate her incontinence. 

In Gratzl v Office of the Chief Judges of the 12^th, 18^th, 19^th and 22^nd Judicial Circuits, decided on April 7, 2010, the plaintiff had suffered from incontinence since approximately 1991. When the OCJ hired her in 2001, they agreed in writing that she would work in the control room only, a position which was compatible with her medical condition. Five years later, the chief judge decided that, to evenly distribute the workload, all court reporters must rotate through all courtrooms, including the control room.

The plaintiff asked that she be allowed to continue working in the control room only as an accommodation. Her doctor told the court that she needed access to a restroom on a moment’s notice. In response, the court proposed that she not be assigned to any courtrooms in which a trial was scheduled or to juvenile courtrooms, which were farther from the restrooms, and that she use a “high sign” to signal the judge that she needed a break. Plaintiff rejected all of these  offers and continued to request to work in the control room only, arguing that such an assignment was feasible because she had had it previously, that other courts have specialists assigned to the control room only, and that her using the “high sign” would be embarrassing.

The Seventh Circuit affirmed summary judgment for the OCJ on plaintiff’s ADA and Rehabilitation Act claims, holding that she was not a qualified individual with a disability because she was “unable to sit in the courtroom during proceedings without disrupting court”  and that her “control room only” request was not a request for a reasonable accommodation.  The court rejected the plaintiff’s “circular” argument that she is qualified for her current job because she was qualified for her previous job with different essential functions. The court said an employer need not maintain a position or structure that, for legitimate reasons, it no longer believes is appropriate and may change an employee’s essential functions.

This case illustrates numerous “reasonable accommodation” principles employers must master.  Presented with a request for a reasonable accommodation, the court engaged appropriately in the “interactive dialogue” to explore options, and offered a series of accommodations which would have enabled plaintiff to perform her responsibilities despite her medical condition. A plaintiff who rejects such accommodations and merely insists on her preferred accommodation is not a qualified individual with a disability and loses the protection of the ADA.

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 Talk about a reasonable accommodation challenge. What is an employer to do when its accommodation of one employee’s medical condition triggers another employee’s medical condition? The New York Times reported recently that the City of Indianapolis faced such a situation recently and is now facing an EEOC “failure to accommodate” charge. 

According to the Times article, a City employee has a very severe reaction to paprika, so severe that she almost died a few years ago from eating chili with paprika in it, had to leave work early when a co-worker was eating buffalo wings containing paprika, had been to the emergency room five times in the past five years for allergic reactions to paprika, and had injected herself with an anti-allergy injection 11 times in the last few years. Concerned about a fatal attack, the employee obtained a dog trained to detect paprika and the City gave her permission to bring the dog to work.

You guessed it. The first day the dog came to work, another City employee who is allergic to dogs had an asthma attack.  According to the article, the City revoked permission for the dog to come to work, which led to the failure to accommodate charge.

So, one employee needs the service dog as an accommodation while another needs the service dog removed as an accommodation. Which accommodation should the employer grant? While general guidelines for conducting the interactive dialogue to search for an accommodation can be gleaned from various court decisions,  dealing with incompatible requests for accommodation requests is somewhat unique. You can be sure that Congress never contemplated that possibility when it created an employer’s duty to reasonably accommodate an employee’s disability. . .

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