From time to time, I ruminate about the relationship between common sense and the ADA. It might be when cogitating about whether showing up for work is an essential function of a job. Or when pondering whether a bridge worker with agoraphobia is a qualified individual with a disability. In framing arguments on such issues
Arriving to Work on Time Might Not be An Essential Job Function under ADA
By Jackson Lewis P.C. on
Posted in ADA
Arriving to work on time might not be an essential function if the late employee would still be able to complete his work in a timely manner, according to the Second Circuit Court of Appeals. McMillan v. City of New York (2nd Cir. March 4, 2013).
The plaintiff, a case manager for NYC’s Human Resources…
Common Sense Prevails: Driving a Fire Engine is an Essential Function of a Firefighter’s Position
By Jackson Lewis P.C. on
Posted in ADA
Sometimes common sense seems to provide the answer to an “essential function” question, but not always. For example, we posted recently about a case where the issue was whether hearing was an essential function of a lifeguard position. Common sense may suggest the answer is “of course” but then we noted that the lifeguard with…
Relying on Poor Performance Caused by Disability to Deny ADA Accommodation “Troubling”; Turns “Reasonable Accommodation on its Head”
By Jackson Lewis P.C. on
Posted in ADA
To what extent may an employer deny a requested accommodation because of on an employee’s poor performance which is caused by a disability?
The Federal Reserve Bank of New York denied an employee’s request to telecommute or to relocate his office to a different Fed building because the employee had been rated as “below standards” in…
Who Cares? DOL’s Roadmap on “Caring for” an Adult Child under FMLA
By Jackson Lewis P.C. on
A parent otherwise eligible for FMLA leave can use that leave to care for a child 18 years of age or older, if that child (1) has a “disability” under the ADA; (2) is incapable of self-care due to that disability; (3) has a “serious health condition” under the FMLA; and (4) needs care due…
Appeals Court Resuscitates Deaf Lifeguard’s ADA Accommodation Claim
By Jackson Lewis P.C. on
Posted in ADA
Is a deaf person qualified to be a wave pool lifeguard? Before answering, consider that the lifeguard holding the record for most “saves”–more than 900–is Leroy Columbo, who was a deaf man.
In Keith v. County of Oakland (6h Cir. January 10, 2013), the plaintiff, deaf since birth, had completed the County’s lifeguard training…
And Yet Another Multi-Million ADA Settlement Involving an Inflexible Leave Policy
By Jackson Lewis P.C. on
Posted in ADA
There was this one, this one, and now yet another multi-million dollar settlement with the EEOC involving allegations that an employer had an inflexible leave policy. The EEOC announced that Dillard’s had agreed to pay $2 million as part of a consent decree to resolve the agency’s allegations relating to the company’s medical…
Temporary and Rotating Position Not “Vacant” for Purposes of ADA’s Accommodation of Last Resort
By Jackson Lewis P.C. on
Posted in ADA
We haveposted previously about the ADA’s “accommodation of last resort”: 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 transferring the employee to a vacant lateral or lower position for which the employee is qualified.
Whether a …
ADA Accommodation of Last Resort Heading to Court of Last Resort Again?
By Jackson Lewis P.C. on
Posted in ADA
We posted previously about the Seventh Circuit holding in EEOC v. United Airlines that, in deciding whether a disabled employee who cannot perform the essential functions of his or her position is entitled to a vacant position as an accommodation under the ADA, the employer must disregard its policy of awarding positions to the best-qualified…
Swine Flu Snafu: Court Tosses ADA Perceived Disability Claim Based on Employer’s Mistaken Perception
By Jackson Lewis P.C. on
Posted in ADA
The company told the plaintiff he was being terminated because it “feared that he had contracted swine flu while in Mexico for his sister’s funeral.” For a time, swine flu had been declared a public health emergency and medical authorities feared the worst. We now know that the swine flu hospitality and mortality profile is very similar…