Tag Archives: ADA

Overtime Can Be An Essential Job Function

By Heather C. Panick on Posted in: ADA, Uncategorized
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

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

By Jackson Lewis P.C. on Posted in: ADA, Alcoholism
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

By Tasos C. Paindiris on Posted in: ADA, Disability Accommodation, Leave
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

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

By Heather C. Panick on Posted in: ADA, GINA, Uncategorized, Wellness
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

By Tasos C. Paindiris on Posted in: ADA, Disability Accommodation
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

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

By Tasos C. Paindiris on Posted in: ADA, Disability Accommodation, FMLA, Leave
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

New Mexico Court Rules Employee Is Entitled To Nationwide Discovery in FMLA Case

By Heather C. Panick on Posted in: ADA, FMLA
On October 10, 2017, Judge Ritter issued the Memorandum Opinion and Order which granted a former employee’s Motion to Compel and held that the former employee was entitled to information from the company’s nationwide offices relating to other employees fired under the company’s 100% healed policy and other FMLA or ADA complaints. Matthew Donlin (“Donlin”) worked as a general manager … Continue Reading

ADA Compliance Challenges: Navigating the Over-accommodation Conundrum

By Katrin U. Schatz on Posted in: ADA
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 recent … Continue Reading

Who’s Responsible for Providing Disability-Related Workplace Accommodations to Temporary Employees?

By Joanne Braddock Lambert on Posted in: ADA, EEOC Guidance
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 wages, provide any benefits, … Continue Reading

When Is Reassignment to an Intermittent Position Required as an ADA Accommodation?

By Katrin U. Schatz on Posted in: ADA
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 to … Continue Reading

What Should I Tell Employees on Leave About Their FMLA Usage? Everything!

By Katrin U. Schatz on Posted in: ADA, FMLA, Leave
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, … Continue Reading

EEOC and Orion Energy Systems, Inc. Settle Wellness Case

By Heather C. Panick on Posted in: ADA, Wellness
On April 5, 2017 the Equal Employment Opportunity Commission (EEOC) announced that it had reached a settlement with Orion Energy Systems, Inc. (Orion) relating to the EEOC’s claims that Orion’s wellness program violated the American with Disabilities Act (ADA) because participation was involuntary, and that Orion retaliated against an employee who objected to the program. … Continue Reading

House Legislation Seeks to Harmonize Wellness Programs with ADA and GINA

By Heather C. Panick on Posted in: ADA, GINA, Wellness
On March 2, 2017, in an attempt to clear the murky waters surrounding wellness programs, Rep. Virginia Foxx, chairwoman of the House Committee on Education and the Workforce, introduced the Preserving Employee Wellness Programs Act (the “Act’) (H.R. 1313). In an effort to protect wellness plans, the Act reaffirms existing law which permits employee wellness … Continue Reading

Breaks and Flexible Hours Not a Reasonable ADA Accommodation for Frequently Absent Employee, Court Holds

By Katrin U. Schatz on Posted in: ADA, Leave
Employers can easily feel overwhelmed when it comes to enforcing employee attendance standards while providing reasonable accommodation to employees with chronic health conditions. Increasingly, however, court decisions such as Williams v. AT&T Mobility Services LLC are providing much-needed guidance regarding the scope of an employer’s duty to accommodate. The Williams case illustrates how carefully-designed policies, frequent communication, … Continue Reading

Supreme Court Nominee Has Put “Reasonable” into Reasonable Accommodation Obligations

By Patricia Anderson Pryor on Posted in: ADA, Leave
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 … Continue Reading

Appellate Court Holds that ADA Does Not Require Reassignment Without Competition

By Tasos C. Paindiris and Paul Patten on Posted in: ADA
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 held … Continue Reading

Court Again Approves Safety-Based Medical Examination without Individualized Assessment

By Katrin U. Schatz on Posted in: ADA
Does an employer violate the Americans with Disabilities Act (ADA) if it requires an entire class of employees to undergo a medical examination without assessing each class member’s individual characteristics? Filling a relative void in case law, the Eighth Circuit recently said no – at least where the employer has credible safety concerns and seeks … Continue Reading

The EEOC Settles its “Direct Threat” Lawsuit Against Georgia Power Co. for $1.6 Million

By Heather C. Panick on Posted in: ADA
According to the Consent Decree filed on November 15, 2016, Georgia Power Company (“Georgia Power”) has agreed to pay $1.6 million and to revise its seizure and drug and alcohol policies in order to settle the lawsuit brought by the EEOC which claimed that the utility company violated the Americans with Disabilities Act (“ADA”) when … Continue Reading

EEOC Explains ADA Interference – Employers Take Note

By Kristin L. Bauer and Paul Patten on Posted in: ADA, EEOC Guidance, Health Management, Pregnancy, Work-Related Injuries
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 … Continue Reading

Finding the “Implicit” Accommodation Request

By Katrin U. Schatz on Posted in: ADA
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 … Continue Reading

What is a Disability? The DOJ’s Final ADAAA Rule is Here.

By Monica Harris on Posted in: ADA
Today, after a two year wait, the Department of Justice will publish its final rule amending the ADA regulations to incorporate the 2008 statutory changes set forth in the ADAAA, which took effect on January 1, 2009. The ADAAA, signed into law by President George W. Bush, was Congress’s response to multiple Supreme Court decisions they … Continue Reading

Fear of Firing May Be ADA Disability

By Jackson Lewis P.C. on Posted in: ADA
Denying a school district summary judgment on the plaintiff’s ADA claim, a court held that plaintiff’s anxiety and depression, “likely stemming from her concerns about possibly getting fired,” may be a disability under the ADA. Huiner v. Arlington School District, (D.SD, Sept. 26, 2013). The plaintiff, a teacher, had been placed on a performance improvement … Continue Reading
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