Archives: ADA

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Employers Asserting “Essential Job Function” Defense Need a Clear Job Description.

Just a few months ago, we wrote about a case where a federal district court denied summary judgment to an employer who had asserted that attendance at work was an essential job function. The Court held that although regular attendance at work was set out in the job description, that was not enough to obtain … Continue Reading

No Adverse Employment Action, No Failure-to-Accommodate Claim, Tenth Circuit Rules

The Americans with Disabilities Act (“ADA”) includes within its definition of “discriminate,” an employer’s failure to provide a reasonable accommodation to a qualified individual with a disability.  But, is a failure to accommodate standing alone—absent an adverse employment action—enough to establish an ADA failure-to-accommodate claim?  For example, if an employer fails to accommodate a wheelchair-bound … Continue Reading

Court Finds Standing Requirement for ADA Title III Claim Requires Plaintiff To Have “Concrete and Realistic” Plan to Return to the Hotel

A recent Middle District of Florida decision granted the Defendant’s Motion to Dismiss Plaintiff’s claims for relief under Title III of the ADA based on Plaintiff’s lack of standing to bring such claims.  In Kennedy v. Cape Siesta Motel (MD FL Oct 4, 2018) the Plaintiff claims she encountered architectural barriers upon her visit to … Continue Reading

Another Court Decides That Extended Leave is Not a Reasonable Accommodation

As employers struggle with managing how much, if any, leave is required as an accommodation under the ADA, we are beginning to get more direction from the Courts to guide those decisions. In Easter v. Arkansas Children’s Hospital (E.D. Ark. Oct. 3, 2018) an employee was unable to work after exhausting her FMLA leave but … Continue Reading

Employers Must Have Duties Based Reasons to Support the Assertion that Full-Time Attendance Is an Essential Job Function

Teenagers are not the only ones dissatisfied when their pleas of “why” are met with a “because I said so.” It turns out that courts of appeal do not care for it either. Careful readers of this space know that the Americans with Disabilities Act (ADA) may require employers to allow modified work schedules when … Continue Reading

Your Presence Is Required: Employee Unable to Travel to Job Site Was Not “Qualified” Within the Meaning of the ADA

In recent years, particularly with technology making it easier for employees to work remotely, courts have struggled to determine whether onsite attendance is an essential job function under the Americans with Disabilities Act (“ADA”).  This question is often dispositive because only qualified individuals—those who can perform a job’s essential functions with or without a reasonable … Continue Reading

You Can’t Always Get What You Want: Employers Don’t Have to Provide an Accommodation Requested by an Employee if There Are Other Reasonable Alternatives

A recent Third Circuit case, Sessoms v. Trs. Of the Univ. of Pa., 2018 U.S. App. LEXIS 16611 (3rd Cir. June 20, 2018), serves as a reminder that while the Americans with Disabilities Act (“ADA”) requires employers to provide reasonable accommodations to disabled employees, it does not obligate an employer to provide the accommodation requested … Continue Reading

Overtime Can Be An Essential Job Function

A recent decision from the District Court for the District of Nebraska serves as a reminder that overtime can be an essential job function. See McNeil v. Union Pac. R.R._ 2018 U.S. Dist. LEXIS 85250.  On May 21, 2018, Union Pacific Railroad Company’s (“Union Pacific”) motion for summary judgment was granted and the Court determined … Continue Reading

District Courts in the Seventh Circuit Begin to Clarify Landmark Severson Decision

As we have previously reported, on September 20, 2017, the U.S. Court of Appeals for the Seventh Circuit issued a significant ruling for employers in Severson v. Heartland Woodcraft, Inc., 872 F.3d 476 (7th Cir. 2017), when it held that an multi-month, non-FMLA leave of absence is not a reasonable accommodation under the Americans with … Continue Reading

What Am I Doing Wrong?? Common FMLA Mistakes.

“What did I do wrong?” and “Am I doing this correctly?” are frequent questions from clients regarding FMLA administration. This is the fifteenth in a series highlighting some of the more common mistakes employers can inadvertently make regarding FMLA administration. Not properly communicating with an employee who is about to exhaust the 12 week leave … Continue Reading

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. In Severson v. Heartland Woodcraft, Inc., a widely-publicized decision relating to the availability of extended leave as a reasonable accommodation under … Continue Reading

FMLA And ADA Claims Put To Bed Where Employer Did Not Know Employee Had Sleep Apnea At The Time Her Employment Was Terminated.

Sometimes what you don’t know can help you. In Guzman v. Brown County, a 911 Dispatcher who was fired after being late repeatedly had her FMLA interference and retaliation claims sent to dreamland by the Seventh Circuit Court of Appeals. The Appeals court held that the moribund claim should stay that way because the Dispatcher … Continue Reading

New York Federal Court Finds Alcoholism Is “Impairment,” Not Necessarily A Disability, Under the ADA

It seems axiomatic that a disability discrimination claim requires the plaintiff to suffer from a disability.  In Johnson v. N.Y. State Office of Alcoholism & Substance Abuse Servs., No. 16-cv-9769 (RJS) (S.D.N.Y., March 13, 2018), a judge in the Southern District of New York dismissed a pro se plaintiff’s complaint for failure to allege that … Continue Reading

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 … Continue Reading

House Bill Would Limit Drive-by Lawsuits by Amending Title III of Americans with Disabilities Act

The House of Representatives has passed the “ADA Education and Reform Act” (HR 620) with an 85-percent vote in favor of passage (including 12 Democrats).  Prior to filing a lawsuit under Title III of the Americans with Disabilities Act, the bill requires potential plaintiffs to provide businesses with both notice of architectural barriers as well … Continue Reading

The Fate of the EEOC’s Wellness Regulations is Still Uncertain

In October 2016, AARP sued the Equal Employment Opportunity Commission (“EEOC”) under the Administrative Procedures Act (“APA”) arguing that there was no explanation for the shift in the EEOC’s position relating to what makes participation in a wellness program “voluntary”.  Originally, the EEOC argued that in order for a wellness program to be “voluntary,” employers could not condition the … Continue Reading

Alabama Court Decides an Individual with a Partially Amputated Foot is not Disabled Under the ADA

The ADA Amendments Act of 2008 (ADAAA) made a number of significant changes to the definition of “disability.” Much of the change had to do with making it easier for an individual to establish that he or she has a disability within the meaning of the statute.  As a result employers have been accepting many … Continue Reading

Obesity Discrimination Claims Allowed to Proceed Under California Law

Is obesity a disability under California law? Are a supervisor’s alleged “fat remarks” sufficient evidence of disability discrimination?  On December 21, 2017, a California Appellate Court published an extensive decision regarding obesity as a disability under California law and issued further guidance on both counts. Ketryn Cornell was an obese woman (5’5”, 350 pounds) who … Continue Reading

Extending Leave Was Not A Reasonable Accommodation Under The ADA Where There Was A Lack Of “Certainty” About Return To Work Date

While employers generally accept that they cannot apply a maximum leave period after which employees are automatically terminated, they continue to struggle with how much leave must be provided as a form of accommodation under the ADA.  There is little dispute that leave for an indefinite period where the employee has a long term chronic … Continue Reading

Prior Entitlement to FMLA Leave Is Not A Free Ticket To Miss Work For Non-FMLA Covered Reasons

The U.S. District Court for the Middle District of Pennsylvania recently upheld an employer’s decision to terminate an employee under its policy against excessive absenteeism, in spite of the fact that the former employee had previously taken leave under the Family and Medical Leave Act (“FMLA”), because the absences at issue were not related to … Continue Reading

Seventh Circuit Holds that the ADA Is Still Not a Leave Statute

On October 17, 2017, on the heels of its landmark decision in Severson v. Heartland Woodcraft, the Seventh Circuit affirmed summary judgment in favor of the employer in its unpublished opinion in Golden v. Indianapolis Housing Agency, No. 17-1359 (7th Cir. Oct. 17, 2017), reiterating that “[a]n employee who needs long-term medical leave…is not a ‘qualified … Continue Reading
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