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
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
ADA Compliance Challenges: Navigating the Over-accommodation Conundrum
Make no mistake about it: ADA compliance can be challenging. This is especially true when it comes to providing reasonable accommodation. Not uncommonly, managers wanting to do the right thing actually provide more than the law requires. Although well-intentioned, this practice often leads to conflict if more generous accommodations are later scaled back. Thankfully, a
Who’s Responsible for Providing Disability-Related Workplace Accommodations to Temporary Employees?
Many businesses use temporary workers placed by staffing agencies. But who is responsible when a temporary worker requests a disability accommodation? The staffing agency and the business could both be responsible if they are acting as “joint employers” under the Americans with Disabilities Act (ADA).
Staffing agencies commonly “employ” temporary workers: hire the workers, pay
When Is Reassignment to an Intermittent Position Required as an ADA Accommodation?
The Americans with Disabilities Act (“ADA”) generally requires employers to provide reasonable accommodation to disabled employees so that they can perform the essential duties of their jobs. This is not news. But what if no feasible accommodation can be identified in an employee’s existing position? Employers are often uncertain about whether they must offer reassignment
What Should I Tell Employees on Leave About Their FMLA Usage? Everything!
When it comes to FMLA leave administration, “don’t sweat the details” is rarely a wise axiom. Details matter. A lot.
A recent decision by an Illinois federal court reinforces that lesson. In March 2015, Amanda Dusik contacted her employer, Lutheran Child and Family Services (LCFS), to request time off for knee surgery. She explained that,
Supreme Court Nominee Has Put “Reasonable” into Reasonable Accommodation Obligations
In case your news and twitter accounts are down, and you otherwise have not heard the news… President Trump has nominated Judge Gorsuch from the U.S. Court of Appeals for the Tenth Circuit to fill Justice Antonin Scalia’s vacant Supreme Court seat. There are surely countless articles about his nomination hitting the airwaves even as I type this, but for employers who struggle with leave management issues, a quick review of the Hwang v. Kansas State University decision, authored by Judge Gorsuch, may provide employers with hope that leave management law could move in the right direction.
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Appellate Court Holds that ADA Does Not Require Reassignment Without Competition
The Equal Employment Opportunity Commission (EEOC) suffered a setback in its attempt to establish that the Americans With Disabilities Act (ADA) requires an employer to reassign an employee to an available position without having to compete with other candidates for that position. In EEOC v. St. Joseph’s Hospital, the Eleventh Circuit Court of Appeals
EEOC Explains ADA Interference – Employers Take Note
On August 25, 2016, the EEOC issued its Enforcement Guidance on Retaliation and Related Issues. In addition to outlining expanded definitions of “opposition” and “participation” activity with respect to retaliation claims, the EEOC also addressed section 503(b) of the ADA. Section 503(b) makes it unlawful to “coerce, intimidate, threaten or interfere” with an individual who attempts to exercise ADA rights or one who assists or encourages others to do so.
What Makes ADA Interference Different
In its guidance, the EEOC notes the interference provisions of the ADA are broader than the statute’s anti-retaliation provisions. Specifically, actions that may not be materially adverse for a retaliation claim may suffice for an interference action. Another distinguishing feature of an ADA interference claim, according to the agency, is that an individual pursuing relief need not be a qualified person with a disability.
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Finding the “Implicit” Accommodation Request
It is common gospel that when a qualified disabled employee requests accommodation under the Americans with Disabilities Act (“ADA”), both employer and employee must engage in an interactive dialogue to discuss the options. But what happens when an employee merely identifies a disability but never asks to be accommodated? In a recent decision, a sharply divided Eighth Circuit held that an employer who learns an employee cannot perform essential duties without accommodation due to a medical condition may need to treat the information as an “implicit” accommodation request. Such an implicit request can trigger the interactive process even though the employee never specifically asked to be accommodated. The opinion can be found here.
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