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
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
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,
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.
Continue Reading Supreme Court Nominee Has Put “Reasonable” into Reasonable Accommodation Obligations
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
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.
Continue Reading EEOC Explains ADA Interference – Employers Take Note
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.
Continue Reading Finding the “Implicit” Accommodation Request
Recall the deaf applicant for a lifeguard position who was the subject of our post here. Most memorable there was the comment by the employer’s doctor to the applicant and his mom that “[h]e’s deaf. He can’t be a lifeguard.” The court there resuscitated the lifeguard’s ADA claim.
Now comes a deaf applicant for a
A Coast Guard analyst unable to maintain regular and predictable attendance due to various debilitating conditions was not entitled to her requested accommodations of telecommuting and a later start time, according to a decision by the U.S. Court of Appeals for the District of Columbia Circuit. Doak v. Johnson, Sec’y US Dep’t of Homeland Security