Articles Posted in Disability

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.

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I tell you, folks.

When a school janitor, the plaintiff in this case, claimed that the school principal uttered the words in the lede above, I felt a stirring within.

Literally, the second those words (allegedly) formed on the principal’s lips, my Spidey Bloggy-senses told me that I’d be able to usher in the new year with a fine blog post.

Comin’ atcha after the jump…

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Whether you have a disability under the Americans with Disabilities Act — so, like, all of us — or not, work can suck. Bosses can be jerks. 

But, if an employee with a disability requests a transfer away from a jerk boss, must the company provide it? 

Find out after the jump…

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If you entered a time machine a few months ago and came out today to read this post, you missed a lot.

The Kansas City Royals made the World Series. Grammy Award winning rapper Eve wed entrepreneur Maximillion Cooper at Cala Jondal Beach in Ibiza, Spain. And a big-time Ebola scare.

Yeah, that Ebola scare was really something. But, it kinda just came and went, didn’t it? We haven’t had a new Ebola case in the U.S. in months, which makes the timing of Monday’s release of “Public Guidance on Protecting Civil Rights While Responding to the Ebola Virus” from the U.S. Department of Justice a bit off.

Still, do heed the three tips from the Guidance:

  1. Ensure that there is no bullying, harassment or other unlawful discrimination directed at people who are or are perceived to be from an African country, of African descent or against people who have the Ebola virus or are perceived as having the virus.
  2. Provide information in languages other than English.
  3. Provide access to information and services to people with disabilities.

Of course, if you reasonably suspect that an employee has Ebola, recently traveled to a high-risk area, or came into contact with someone with Ebola or returning from a high risk area, you should follow the applicable state and CDC control measures to protect both your workplace. If you are concerned about a disability-discrimination claim, as long as you act reasonably, you should ok. But you may want to consult the EEOC’s pandemic guidelines and a lawyer.

Just seems like common sense to me, especially where the employee seeking the accommodation would have to operate a motor vehicle.

Wait a minute!

Did an employee with a disability under the Americans with Disabilities Act really think it would be reasonable for his employer to allow him to take narcotic pain medication so that he could operate a company vehicle pain free?

More after the jump…

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The U.S. Equal Employment Opportunity Commission is obsessed with wellness programs.

Or, as the EEOC likes to describe them “‘so-called’ wellness programs.” And not in a “yay, so-called wellness programs are super” kinda way.

No, in recent months, the EEOC has initiated litigation against companies (example, example, example) claiming that they violate the Americans with Disabilities Act and the Genetic Information Non-Disclosure Act by both requiring medical examination and penalizing employees who decline to participate.

Back in May 2013, one of the panel experts invited to speak at an EEOC public meeting on wellness programs lamented that, while the ADA allows employers to ask for medical information in connection with voluntary wellness programs, the meaning of “voluntary” merits further clarification.

EEOC Commissioner Lipnic too stressed that the EEOC has a “responsibility where possible to let stakeholders know the Commission’s position on these important questions.”

And Senate Republicans, well, they don’t exactly see eye-to-eye with the EEOC on this issue.

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Have you cast your vote for The Employer Handbook as the top Labor and Employment blog in the ABA Journal’s Blawg 100? If not, please take a few secs and do it here.

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And so the EEOC has announced (here), that in February 2015, it will provide wellness-program guidance to employers “to address numerous inquiries EEOC has received about whether an employer that complies with regulations implementing the final Health Insurance Portability and Accountability Act (HIPAA) rules concerning wellness program incentives, as amended by the Affordable Care Act (ACA), will be in compliance with the ADA.”

The EEOC believes that its new guidance “will benefit entities covered by title I of the ADA by generally promoting consistency between the ADA and HIPAA, as amended by the ACA, and result in greater predictability and ease of administration,” while imposing “no new or additional risks to employers.”

As former EEOC Chair Berrien recognized at the EEOC’s public meeting in May, there has been “broad, bipartisan support for the expanded use of wellness programs to reduce health insurance and healthcare costs.” So, hopefully, the EEOC can strike a reasonable balance between the intent of these programs and federal anti-discrimination laws.

The Americans with Disabilities Act requires that companies provide a reasonable accommodation to an employee with a disability, if doing so will allow the employee to perform the essential functions of the job.

The ADA contemplates a number of different types of reasonable accommodations. One such accommodation is a transfer into an open position for which the disabled employee is qualified. But what happens when there is no vacancy. Must an employer bump another non-disabled employee to accommodate the one with the disability?

As an Ohio federal court reminds us in this recent opinion that the answer is no, unless special circumstances exist:

Arthur claims that special circumstances exist here, and that ASI should have given him another employee’s job, and transferred that employee to the machining job Arthur was offered. …But Arthur has not shown that ASI permitted employees whose jobs were eliminated [like Arthur’s] to “bump” other regular employees out of their jobs. The only evidence in the record shows that ASI’s internal transfers were to open positions, or to positions that were filled with temporary employees. And Arthur has not identified any open positions or positions occupied by temporary employees, in any of the departments that he contends he should have been transferred to, such as operating a forklift or working in the rackroom.

What are the special circumstances that may arise? A pattern and practice of bumping employees could suffice. An established seniority system is another example. But absent special circumstances, disabled employees enjoy the same rights as other employees, no more; no less.