A lab worker with health problems as a result of her work with a solvent submitted the following request for an accommodation: “Avoid any type of work where she would have exposure to organic solvents. Transfer to another line of work. Avoidance of irritants.”

The employer denied the request but offered the plaintiff a full face respirator that would have protected her from exposure to solvents.  She wore the respirator six or seven times then stopped because it led to her having claustrophobia and panic attacks. The employer then offered the employee a partial face respirator but the plaintiff refused to even give it a try. As her note indicated, she sought a transfer to another line of work. 

In affirming summary judgment for the employer, the Court held that while the offer of a full-face respirator was not a reasonable accommodation because of its effects on the plaintiff, the offer of a partial face respirator was. Due to the plaintiff’s refusal to try the partial face respirator, she could not perform the essential functions of her position and was not a qualified individual with a disability.  Yovtcheva v. City of Philadelphia (3rd Cir. May 7, 2013).

When an employee requests a job transfer as an accommodation, an employer should determine first if there is an accommodation that allows the employee to remain in his or her regular job. If there is, there is no need to get to the transfer, i.e., "accommodation of last resort,” analysis. As the Yovtcheva case illustrates, this is so even if the employee rejects the accommodation for his or her regular job.

Appellate courts in two neighboring states—Kentucky and West Virginia—have reached different conclusions on whether obesity is a disability.

In the Kentucky case, the plaintiff, who was approximately five feet four inches in height and weighed four hundred twenty-five pounds, claimed that her employer had unlawfully discriminated against her due to her morbid obesity in violation of the state law prohibiting disability discrimination.  An individual is morbidly obese when he or she is either double the normal weight or at least 100 pounds more than normal weight.  The trial court had granted summary judgment to the employer. Reversing that decision, the appellate court concluded that the plaintiff’s morbid obesity was a disability. The court noted that a morbidly obese person is substantially limited in the major life activity of caring for oneself, noting that “a simple activity such as tying one’s shoes is complicated and difficult due to the condition.”  Pennington v. Wagner’s Pharmacy, Inc.  (KY Ct. of App., July 12, 2013).

In the West Virginia case, the plaintiff, a blackjack dealer who weighed approximately 540 pounds, also  claimed he was terminated due to his morbid obesity in violation of the state law prohibiting disability discrimination.  The West Virginia Supreme Court of Appeals held that obesity was not a per se disability under the state statute and that the plaintiff did not provide any evidence that his obesity substantially limited him in any major life activity. The court affirmed summary judgment for the employer.  Andrew O. v.  Racing Corporation of West Virginia d/b/a Mardi Gras Casino and Resort (W.Va. Sup. Ct. App., June 24, 2013).

The disagreement about obesity extends beyond these two courts. Earlier this year, the American Medical Association officially recognized obesity as a disease. According to a New York Times report, in adopting this position, the AMA rejected a committee recommendation that obesity not be considered a disease.
 

The Supreme Court’s decision in U.S. v. Windsor adds to employer obligations under the FMLA by expanding the group of individuals who may be a “spouse” for FMLA purposes.  At issue in Windsor was whether Section 3 of DOMA violated the Fifth Amendment’s Equal Protection Clause as applied to the Federal Government.  Section 3 of DOMA states that the meaning of “spouse” in any federal law or regulation “refers only to a person of the opposite sex who is a husband or a wife.” Section 3 of DOMA had left no doubt that the definition of “spouse” under the FMLA could not possibly have included a same-sex spouse. Now that the Supreme Court has found Section 3 to be unconstitutional, that prohibition went with it and employers must now determine whether an employee’s same-sex spouse is a “spouse” for FMLA purposes.  

For additional information on making that determination, click here.
 

A terminated sheriff’s failure to refute a psychologist’s claim that he had lingering psychological deficits from a stroke that would interfere with his ability to perform his job led the Tenth Circuit Court of Appeals to affirm summary judgment for the County on the sheriff’s ADA claims. 

The sheriff’s doctor had cleared him to return to work following recovery from a stroke. After he had returned, co-workers reported concerns about his behavior, such as that he became flustered at a traffic stop because he could not remember a word, that he would lose his temper and that he left work at least once because of blood pressure problems.

The County ordered the sheriff to have an fitness for duty exam from a neurologist; the neurologist cleared him to return to work “from a neurological standpoint” but suggested that his cognitive functioning be investigated.  A psychologist evaluated his cognitive functioning and concluded that the plaintiff’s symptoms of “mild to moderate fatigue, episodes of lightheadedness and episodes of emotional disinhibition (weeping)” could interfere with the performance of some of his patrol officer duties and recommended that he be placed in a low-stress position, one in which he did not have regular contact with the public.

Relying on the psychologist’s report, the County terminated the sheriff’s employment, stating that it did not have any available position for which he had been medically cleared to perform.  The Court held that the plaintiff was unable to establish that he could perform the essential functions of his job either with or without an accommodation because he failed to present any evidence contradicting the psychologist’s assessment that he should not be placed in a position here he could be exposed extreme stress, a restriction which disqualified him from patrol duty. Koessel v. Sublette County Sheriff’s Department et al (10th Cir. May 14, 2013).

 

An essential function of full time work is that an employee actually work full time!  The U.S. Court of Appeals for the Sixth Circuit recently concluded that an individual who requested that she be allowed to continue working part time did not request a reasonable accommodation under the ADA.  White v. Standard Insurance Co., (6th Cir. June 28, 2013). The employer established that full time work was an essential function of the position: the employer had never employed anyone in the employee’s particular position on a part-time basis; the written job description stated that the position was full time; and the plaintiff admitted during her deposition that she was unable to complete the job requirements in a four-hour shift.  Other employees had to work overtime to cover her work.

The plaintiff had a back injury in September 2007 and took a leave through December 2007.  In mid-December, she returned to work part-time for four hours a day but, beginning in mid-January, she had trouble working even four hours.  She did not work or left early 6 days in January and then left early on February 6 and called off on February 7.  As a result, the employer terminated her employment but held the position open until the end of March in case she could return to work.

The court concluded that a request to continue working part time was not a request for a reasonable accommodation under the ADA because the plaintiff was not able to perform the essential functions of the job while working part time and the employer was not required to create a new part time position.

This case reminds employers how important a well-drafted job description can be.  It also reaffirms the necessity of the individualized inquiry.  The particular facts of each case will determine whether an accommodation is reasonable under the particular circumstances.

 

Relying on the employer’s “honest belief” that the plaintiff had engaged in fraudulent conduct, the U.S. Sixth Circuit Court of Appeals rejected the FMLA retaliation claim of an employee who had requested leave to attend the funeral of her granddaughter, when it was actually her step-granddaughter who had died. The collective bargaining agreement governing the plaintiff’s employment granted paid funeral leave for a grandchild but not a step-grandchild. Hall v. The Ohio Bell Telephone Company (6th Cir. June 17, 2013).   Employers relying on the “honest belief” defense where there is suspected leave abuse have prevailed in numerous cases, which we have reported here, here, here and here. To rely on this defense, before terminating an employee for leave abuse, an employer must investigate thoroughly and identify those “particularized facts” on which it will rely.

The plaintiff had claimed that she was terminated in retaliation for taking FMLA leave, noting that the employer’s first investigation into her conduct occurred soon after her first FMLA request. Beginning in September, 2007, the plaintiff had 80 hours of FMLA leave per month due to anxiety disorder.  While working for the employer, the plaintiff wrote and self-published two novels.  In a newspaper interview a month after she began this FMLA leave, the plaintiff was quoted as saying that publishing a book “takes hard work perseverance, and determination…. [A]re you ready to give up your Saturday or Friday or take off of work to make your dream come true?”  The employer investigated the suggestion in the article that the plaintiff may have taken paid FMLA leave to write her book.

Noting that “[n]othing in the FMLA prevents employers from ensuring that employees who are on leave from work do not abuse their leave,” the Court held that the employer “articulated particularized facts” to support each of its investigations into the plaintiff’s FMLA leave.      
 

Oregon has amended its Family Leave Act (OFLA) to allow an eligible employee to take leave to “deal with the death of a family member” by attending the funeral (or alternative service), making arrangements, and grieving the death.  Under the OFLA, a “family member” includes a spouse, parent, child, parent-in-law, grandparent, grandchild, same-gender domestic partner or parent or child of same-gender domestic partner.

An employee may take up to two weeks of OFLA leave for each death of a family member. Leave must be completed within 60 days of the date on which the employee receives notice of the death.  Bereavement leave is counted toward the maximum OFLA leave of 12 weeks per 12 month period.  The bereavement amendment is effective January 1, 2014.
 

On July 11, 2013, the U.S. Access Board and the ADA National Network will host a free webinar providing a “walk thru” of the Web Content Accessibility Guidelines (WCAG), also known as WCAG 2.0.  The WCAG are published and maintained by the World Wide Web Consortium (W3C) and are the internationally recognized standards for web accessibility.

As we mentioned in a previous blog post, the U.S. Department of Justice (DOJ) plans to issue proposed regulations under Titles II and III of the ADA concerning web content requirements for websites to be accessible to disabled users.  WCAG 2.0 Level AA has been proposed as the standard for the DOJ to adopt in pending Title II and Title III regulations.  WCAG is a somewhat intimidating document and can be confusing for a first time reader.  Thus, this webinar can be a highly valuable resource for state and local governments covered by Title II of the ADA and private entities covered by Title III of the ADA to become familiar with this cutting edge accessibility issue.

 

Add the New York City patch to the patchwork of paid sick leave laws developing around the country. We wrote about this development in an earlier post.

The NYC law, called the Earned Sick Time Act, was passed June 27, 2013, when the New York City Council overrode the mayor’s veto of the bill. NYC joins Portland, OR, Seattle, San Francisco, the District of Columbia and Connecticut in requiring private sector employers to provide paid sick leave.

The Earned Sick Time Act goes into effect on April 1, 2014 and requires private sector employers with 20 or more employees to allow employees to earn an hour of paid sick time for every 30 hours worked, to a maximum of 40 hours per year.  Effective October 1, 2015, an employer with at least 15 employees must provide paid sick leave. Employers who do not have sufficient employees to be required to provide paid sick leave must provide unpaid sick time.

Employees may use accrued sick time to care for their own health conditions or those of a spouse, parent, child, domestic partner, parent in law, or parent of a domestic partner.

For additional information about the provisions of the  Earned Sick Time Act, click here.
 

The Supreme Court held this week that a plaintiff bringing a retaliation claim under Title VII must establish that the adverse employment action would not have occurred “but-for” an improper motive on the employer’s part, rejecting the lesser “motivating factor” standard.  University of Texas Southwestern Medical Center v. Nassar, (USSupCt,  June 24, 2013.  This heightened standard is likely to carry over into other federal laws, such as the ADA.

The Court held that Title VII retaliation claims must be proved according to traditional principles of but-for causation, not the “motivating factor” standard outlined in section 2000e-2(m) of the statute.  The “motivating factor” standard is the standard required to establish impermissible consideration of race, color, religion, sex, or national origin in employment practices, the Court noted. However, this standard is not in the section regarding retaliation, 2000e-3(a), which states that “it shall be an unlawful employment practice for any employer to discriminate against any of his employees…because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” (emphasis added).Given the statute’s use of the word “because,” the Court found that the analysis must be a “but-for” analysis.

Similarly, the ADA’s retaliation provision states that “no person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.” (emphasis added). Since the Supreme Court has established the but-for standard as the default standard absent explicit reference to the lower, “motivating factor” standard, the but-for standard is likely to apply to retaliation claims under the ADA as well.

This decision is likely to mean that fewer ADA retaliation cases will go to trial since it will be more difficult for a plaintiff to survive an employer’s summary judgment motion.