Offering Practical Guidance to Employers
When an employee cannot perform the essential functions of his or her position, with or without an accommodation, due to a disability, an employer must consider “the accommodation of last resort”—transfer to a vacant lateral or lower position for which the employee is qualified.
The circuit courts have split on whether an individual with a…
In 2011, an EEOC Commissioner noted that one aim of the ADAAA was to have the parties “stop obsessing about coverage”, i.e., about who is “disabled,” and move to the merits of the substantive claim.
A Tenth Circuit decision suggests that there is still value in obsessing about ADA coverage. In Allen v.
Courts have struggled to determine who “cares for” a covered family member under the FMLA and who seeks leave for compassionate reasons which fall short of the “caring for requirement. See, e.g., Who Cares, Where? ; Who Cares? And Who Merely Assists Under the FMLA? The Sixth Circuit has held that an employee who sought…
A terminated employee who had made a “pre-eligibility request” for a ”post-eligibility leave” can pursue FMLA interference and retaliation claims, according to the United States Court of Appeals for the Eleventh Circuit. The Court reversed the district court decision, which had dismissed both claims because the plaintiff was not FMLA-eligible at the time of her termination. …
An employee must arbitrate his FMLA claim where the labor contract governing his employment waived his right to pursue employment claims in court, according to the United States Court of Appeals for the Eighth Circuit. Thompson v. Air Transport Int’l LLC (12/28/11). The Court relied on the Supreme Court’s 2009 decision in 14 Penn Plaza …
“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…
Whether a supervisor mistreated the plaintiff after he returned from his second leave of absence, causing him to need a third leave, is irrelevant to his FMLA retaliation claim because “[e]xacerbation is not a valid theory of liability under the FMLA” according to the Seventh Circuit. Breneisen, Jr. and Lineweaver v. Motorola, Inc. (7th Cir.
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…
Add the Second Circuit to the chorus of circuits to apply the Supreme Court’s standard for Title VII retaliation claims to FMLA retaliation claims as well. In its 2006 Burlington Northern & Santa Fe Railroad Co v. White decision, the Supreme Court expanded the definition of “materially adverse employment action” for purposes of Title VII retaliation.
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…
