A man walks into the woods with a gun and sits in a comfortable chair already set up in a blind. An hour earlier that Monday, 2 ½ hours into his shift, he told his employer he was in severe pain and could not perform his work duties. Because the employee’s FMLA requests tended to
Regular Attendance is Essential Function of ICU Nurse Post; Request for Unlimited Absences Unreasonable
By Jackson Lewis P.C. on
Posted in ADA
Whether and to what extent attendance is an essential job function is perhaps the most vexing ADA issue. In Samper v. Providence St. Vincent Medical Center (9th Cir April 11, 2012), the plaintiff, an ICU neo-natal nurse with fibromyalgia, asked to “opt out” of the employer’s unplanned absence policy as an accommodation.
In a remarkably refreshing…
The Worst Case Scenario: Discussing Performance and FMLA Leave at the Same Time
By Jackson Lewis P.C. on
Posted in ADA
Worst v. Glynn County School District (S.D. Ga. March 29, 2012) reminds employers that the best case scenario is to avoid connecting performance issues and leave. Worst, a third grade teacher, told her principal she would need leave for surgery beginning a month hence. Before Worst’s leave began, her principal spoke with her about her…
Gimme Shelter–and Summary Judgment–in the ADA 501(c) “Safe Harbor”
By Jackson Lewis P.C. on
Posted in ADA
When dealing with ADA claims relating to benefit plans, make sure to plot the coordinates for the ADA’s Section 501(c) “safe harbor.” Sections 501(c)(2) and (3) protect employers from liability for conduct that would otherwise violate the ADA if it were taken pursuant to an insured or self-insured benefit plan so long as the plan…
Flexible Work Schedule for All: Greater Challenge or Greater Profits?
By Jackson Lewis P.C. on
Employers challenged with scheduling modifications due to reasonable accommodation requests under the ADA, intermittent leave requests under the FMLA, and paid sick leave requests in some jurisdictions, but looking to increase their profitability, might want to keep an eye on H.R. 4106, the Working Families Flexibility Act (WFFA).
Introduced in the House of Representatives on…
Last Word on Accommodation of Last Resort Yet To Be Spoken
By Jackson Lewis P.C. on
Posted in ADA
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…
Employee With Migraines Not Disabled–There’s Hope for the “Coverage” Obsessors!
By Jackson Lewis P.C. on
Posted in ADA
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.
“Severe Obesity” is a Disability Under the ADA, Federal District Court Rules
By Jackson Lewis P.C. on
Posted in ADA
“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…
Swine Flu Snafu: ADA Claim Dismissed, Even if Plaintiff Had Swine Flu
By Jackson Lewis P.C. on
Posted in ADA
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…
Testing Protocol for Lawful Drugs Illegal ADA Exam and Inquiry
By Jackson Lewis P.C. on
Posted in ADA
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…