Articles Posted in Disability

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ADA and Burger King?!? Has someone been eating too many Whoppers? No. But I did spend a 20 minute Uber ride yesterday sucking down mustard packets.

Actually, the inspiration for this post comes from Seattle Attorney, Michael Harrington, who presented “The Wild, the Weird and the Wonderful FMLA/ADAAA Cases…And the Lessons for Employers!” with me yesterday at the Disability Management Employer Coalition (DMEC) FMLA/ADAAA Employer Compliance Conference.

(If you want a copy of our PPT, please email me. I got you.)

During the takeaways from our presentation, I went with the tried-and-true, educate your employees about the procedures for requesting FMLA/ADA accommodations, and train your managers how to spot these requests, especially where the letters FMLA or ADA are not used.

But, Mike, who killed it yesterday during our presentation — the Penn to my Teller, the Bart to Milhouse — made it real simple. He suggested that companies train managers who deal with ADA requests to think about Burger King’s old slogan, “Have it your way.”

In other words, adopt a customer service mindset. By asking an employee what the company can do to accommodate a disability, the manager immediately helps promote the goals of the ADA: a good faith interactive dialogue designed to accommodate an employee with a disability to allow that employee to perform the essential functions of the job — unless doing so would create undue hardship for the employer.

So, next time an employee requests an accommodation, extra pickles, hold the tomato, and, “have it your way.”

(Unless there is another reasonable accommodation available or the accommodation would create undue hardship. But, you get the idea).

More eagerly anticipated that the premiere of Paul Blart: Mall Cop 2, yesterday, the EEOC released its new proposed rules on wellness programs.

Although, based on the Paul Blart reviews, hemorrhoids too may be more eagerly anticipated. No strikethrough on the last sentence. Weird.

But, if you want to have an employee wellness program that complies with the Americans with Disabilities Act, here are five things the EEOC wants you to do…  Continue reading

Geez! What’s gotten into me this week? Even by The Employer Handbook editorial standards, which are lower than Title VII’s religious accommodation undue hardship test.

[I’ll be here all week. Sorry.]

First, a 1000+ word blog post on ADA telework, followed by two cheeky posts on bad interview questions and the FMLA. So, naturally, this builds up to a Thursday post about oral.

As I resist every urge to cheapen this further by resorting to silly puns and other double entendre, allow me to set the stage for you: Continue reading

If you’re in a rush, I’ll hit you with the punchline and save you the trouble of reading 1,000+ words of blog post:

Telecommuting may be a reasonable accommodation under the Americans with Disabilities Act, except where regular attendance is an essential function of the job.

For those of you with a few minutes to spare, today’s post springs from a case, a saga really, involving the the US Equal Employment Opportunity Commission and Ford Motor Company. And since I have a few good employer takeaways at the end — hey, don’t skip all the way through! — today’s post is worth the time. Continue reading

Happy Monday, everyone.

Glad to see I didn’t break some of your content filters on Friday with my filthy NLRB post. But, hey, just another day in the interesting life of an employment lawyer / HR professional, amirite?

Today, I bring you a very simple lesson, courtesy of the Third Circuit Court of Appeals, from right here in my backyard. That lesson is this:

When you terminate an employee, do not write “Health Reasons” on the employee’s termination form. Continue reading

JetBlue A320 at Orlando

One week ago today, a Germanwings plane carrying 150 people crashed and killed everyone on board. Since then, there is mounting evidence that the co-pilot, who was in great physical shape, was also suffering from mental illness which caused him to deliberately steer Flight 9525 into the French Alps.

Why didn’t Germanwings taken preventative steps? Apparently, the co-pilot hid his mental illness from his employer.

Three days after the Germanwings catastrophe, a former JetBlue airline pilot, who was locked out of the cockpit and had to be subdued by passengers, filed this lawsuit in federal court against his former employer.  He claims that the airline was negligent because it knew or should have known that he was “physically and mentally unfit to fly.” Continue reading

Well, I think we can all agree that, when an employee’s protected class motivates a company to transfer him to a less desirable position, it’s time to call the lawyers and break out the checkbook.

But, what makes a transfer position less desirable?

Yesterday, I was reading this Sixth Circuit opinion about a hospital employee, who was undoubtedly suffering from a “disability” under the Americans with Disabilities Act. However, for several years, despite what the court described as “significant cognitive and physical impairments,” this plaintiff performed well as a housekeeper. Eventually, however, the hospital transferred the plaintiff to a different housekeeping role, one which he had trouble performing. Indeed, it was his poor performance in this new position that led the hospital to terminate his employment. Continue reading

I’m a bit late to the party with this one. But, for those who haven’t read about it elsewhere. Voila!

The plaintiff originally taught at the high school, during which she informed her employer about her pedophobia, a debilitating fear of young children. Some time later, the plaintiff was transferred to the middle school, which was ok because she only feared elementary school kids, and not middle schoolers. The plaintiff taught middle school for six months, but, then she asked for a transfer back to the high school, saying that her talents were “underutilized” at the middle school and that another year there would be bad for her health. The school district informed the plaintiff that there were no openings, but would keep her request on file. Shortly thereafter, the plaintiff retired.

She then sued the school district for age discrimination, disability discrimination, hostile work environment, intentional infliction of emotional distress, and breach of contract. Continue reading

Yesterday, with my good buddies Casey Sipe and Jessica Miller-Merrell from Blogging4Jobs.com, I presented a webinar on the interplay between the Family and Medical Leave Act, state workers’ compensation laws, and the Americans with Disabilities Act. The key word in the last sentence being “interplay.”

(By the way, if you want to snag a copy of that webinar, drop me a line, and I’ll see what I can do about getting you a copy).

One point we emphasized during the webinar is that, for employees taking FMLA leave for their own serious health condition, companies need to have a plan to address the FMLA implications and the potential interplay — there’s that word again — with the ADA. Because, remember, leave may be a reasonable accommodation under the ADA. Continue reading

Yesterday, I read about a woman who alleged that her former employer violated the Americans with Disabilities Act when it fired her from her “armed security guard” position because of a medical condition.  This notwithstanding that, in her complaint, the plaintiff admitted to being presented with pictures taken of her which appeared to show her sleeping on the job. In response, the plaintiff told the company that she was taking medication that made her “sleepy.”

Does this sound familiar?

Well, it should, because we’ve covered this before. An employee who, because is a disability, may have a tendency to fall asleep at work, could still be qualified to perform the essential functions of the job.

Continue reading