Tag Archives: Disability

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

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

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

Alabama Court Decides an Individual with a Partially Amputated Foot is not Disabled Under the ADA

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

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

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 recent … Continue Reading

Is Crying at Work Sufficient Notice of an FMLA Covered Condition?

It is well established that an employee need not specifically request leave under the Family and Medical Leave Act (“FMLA”) in order to benefit from the Act’s protections.  Rather, the law requires the employer to take action to notify an employee of FMLA rights when the employer acquires knowledge that an employee’s leave may be … Continue Reading

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 … Continue Reading

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 held … Continue Reading

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 … Continue Reading

New York City Council Passes Law Requiring Pregnancy-Related Accommodations, Legislation Awaits Mayor’s Approval

On September 24, 2013, the New York City Council unanimously approved legislation that requires most New York City employers to provide reasonable accommodation for an employee’s pregnancy, childbirth or related medical conditions. While the legislation must be approved by the Mayor to become law, the City Council passed the measure by a seemingly veto-proof 47-0 … Continue Reading

U.S. DOL Announces New Section 503 Disability Regulations

The U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) today announced a Final Rule that makes historic changes to the regulations implementing Section 503 of the Rehabilitation Act with regard to the employment of individuals with disabilities, referred to in the Rule as “IWDs.” As explained in the DOL’s announcement, “Section 503 … Continue Reading

The ADA Conundrum from Cleveland: Analyzing an Employee’s Inconsistent Statements About the Ability to Work

In Cleveland v. Policy Management Systems Corp., the United States Supreme Court created a framework for analyzing how inconsistent statements on applications for disability benefits concerning a plaintiff’s ability to work affect an ADA claim.The analysis focuses on whether the plaintiff’s statements “genuinely conflicted with her ADA claim” and if so, whether the plaintiff has … Continue Reading

State Courts Disagree on Whether Morbid Obesity is a Disability

Appellate courts in two neighboring states—Kentucky and West Virginia—have reached different conclusions on whether obesity is a disability. In the Kentucky case, the plaintiff, who was approximately five feet four inches in height and weighed four hundred twenty-five pounds, claimed that her employer had unlawfully discriminated against her due to her morbid obesity in violation … Continue Reading

EEOC’s Record Jury Verdict of $240 Million in ADA Turkey Farm Case Reduced to $1.6 Million

In what the EEOC has called “one of its finest moments” in its effort to “combat employment discrimination,” a jury awarded $240 million to 32 individuals in an ADA case brought by the EEOC. It was the EEOC’s largest jury verdict ever. The award for compensatory and punitive damages amounted to $7.5 million per individual. … Continue Reading

Mammography Tech with Epilepsy Unqualified under ADA Because Unconscious During Seizures

A mammography tech with epilepsy is not a qualified individual with a disability under the ADA because she cannot perform the essential functions of her job "during the indefinite periods in which she was incapacitated," according to the Eighth Circuit Court of Appeals. Olsen v. Capital Region Medical Center (8th Cir. May 7, 2013). We … Continue Reading

Housing Complex Designed For, Occupied By, Those With Hearing Impairments Discriminates Against Those Without Hearing Impairments

A federally subsidized housing complex designed by a deaf architect, with such features as video phones, lights that flash when the phone or doorbell rings, and wiring that sends announcements to residents’ hearing aids, is being accused by the federal government of discrimination against those who are not deaf, according to a New York Times … Continue Reading

A Mega Leave-and-Attendance Patchwork on its Way!

If you look out toward the leave-and-attendance legislation horizon, and you might have to squint a bit but not much, you can see yet another patchwork beginning to take shape. This one is on paid sick days. Multi-state employers need to watch this carefully since it is certainly heading for full-fledged “patchwork” status which, when … Continue Reading

Swine Flu Snafu: Court Tosses ADA Perceived Disability Claim Based on Employer’s Mistaken Perception

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 … Continue Reading

Plaintiff With Many Chemical and Other Sensitivities Not Qualified Under Rehab Act

A plaintiff with chemical or other sensitivities alleging disability discrimination is not unusual. The typical claim is that such a plaintiff, despite such sensitivities, is a qualified individual with a disability and the employer failed to accommodate those sensitivities.  The pro se plaintiff in an Eleventh Circuit case making that claim, a nurse in a … Continue Reading

It Depends on Your Definition of “Has”: Connecticut Appellate Court Rejects State Law “Perceived Disability” Claim.

The Connecticut law prohibiting discrimination against an individual who has a “physical disability” does not create a cause of action for discrimination by someone who does not have, but is perceived to have, a physical disability, according to the Connecticut Appellate Court. Desrosiers v. Diageo (Aug 14, 2012).  The Court noted that the state law … Continue Reading

Working Through the Workplace Haze from Connecticut’s New Medical Marijuana Law

 Under a new Connecticut law, a “qualifying patient” with a “debilitating medical condition” may obtain a supply of marijuana from a licensed dispensary to alleviate symptoms or effects of such symptoms.  The statute lists eleven “debilitating medical conditions” and gives the Department of Consumer Protection the ability to add others. The act also gives guidance to address the … Continue Reading

Oktoberfest Jaunt Leads to Disability Fraud Firing

The Sixth Circuit has affirmed summary judgment for an employer who terminated an employee on FMLA leave based on its “honest belief” that the employee had “over-reported” his restrictions to avoid doing light duty work. Seeger v. Cincinnati Bell Telephone, (6th Cir. May 8, 2012). Under the labor contract, an employee on otherwise unpaid FMLA … Continue Reading
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