Recently in Disability Category

July 22, 2014

Requesting an accommodation means more than saying, "I'm disabled."

My cold, black employment-law heart is numb to just about anything.

I remember this one time, early in my career, when I had to depose a teenage female plaintiff and ask her, with her mother present in the room, whether it offended her that her alleged male sexual harasser wanted to have a threesome with her and her mother.

Back then, it seemed salacious. Now, it's like, whatever. Most of this stuff just rolls off of my shoulders.

But I do have a soft spot for failure-to-accommodate cases under the Americans with Disabilities Act.

For, I get how hard it is for an employee to have to share with an employer -- let alone anyone -- that the employee has [insert name of disability]. It's a very vulnerable position.

Triggering a duty to accommodate.

The Americans with Disabilities Act tasks employers with providing reasonable accommodations to employees with disabilities to allow them to perform the essential functions of the job.

However, as hard as it for an employee to communicate to an employer that he/she has a disability, a recent federal court decision reminds us that merely communicating the existence of a disability is not enough to trigger an employer's duty to accommodate.

In Wallace v. Heartland Community College, the court noted that, while the plaintiff did make her employer aware that she had a disability which was causing her "stress and pain" at work, she failed to communicate how she wanted her employer to accommodate her disability.

And although "requests for accommodations need not be communicated through formal channels," and there may have been some semblance of a reasonable accommodation discussion, the court determined that the plaintiff was responsible for the breakdown of the interactive process that failed to result in identifying a reasonable accommodation.

Make it easier for employees to request accommodations.

The case provides a good lesson to employers and employees alike about the importance of open communication and cooperation in determining what accommodation(s), if any, will allow the employee to perform the essential functions of the job. Although the law may place the onus on the employee to advance the ball, at least initially, when discussing workplace accommodations, proactive employers should facilitate these discussions by educating employees, through policy and training, about the ways in which employees can make these requests.

July 17, 2014

Court: No need to accommodate employee who shows up drunk on Mike's Hard Lemonade

Hey there, United States District Court for the Northern District of Illinois, Eastern Division.

This Americans with Disabilities Act failure-to-accomodate opinion right here. You had me at "Ortiz reported to work on April 5, 2010, carrying one empty and three full cans of 'Mike's Hard Lemonade' (an alcoholic beverage), along with raw meat."

I may borrow that line for my Hangover Part IV treatment. It stars Zach Galifianakis and the rest of the crew -- cameos by Pee Wee Herman, Octomom, and Peter Dinklage (as Tyrion Lannister) -- and centers around the hi-jinx that ensue after the boys get blackout drunk following Alan's nephew's bris.

game of thrones got tyrion lannister peter dinklage gif

(Three years later...)

And the Academy Award for best adapted screenplay goes to Eric Meyer.

"First of all, I'd like to thank God. I'd also like to thank the members of the Academy, my family, and the United States District Court for the Northern District of Illinois, Eastern Division. (applause) Step up your game, Western Division (laughter)..."

Yes, friends I stole borrowed the plot from the Illinois federal court, which opined (here) that an employee who shows up to work smelling of alcohol and with a blood alcohol level of .198. (15 minutes later, the level was .203), can be fired without violating the Americans with Disabilities Act. Yes, it's true.

(The opinion; not my script idea, dummies).

It doesn't matter that alcoholism is an ADA disability (it is) or, for that matter, what other disabilities the plaintiff may have had. Reporting to work in possession and under the influence of alcohol not only renders that employee unqualified under the ADA, but is a terminable offense.

So, next time one of your employees shows up to work zooted, carrying a four-foot gravity bong and a medium rare chateaubriand, go ahead and fire that person. No ADA violation there.

And then call me. So, I can start working on my next script.

(In the meantime, nominate this blog for the ABA Blawg 100 Amici, would ya? I have a prestigious blawg title to defend. Yes, I just used the word "blawg" in two straight sentences. Ok, three).

Image credit: GifWave.com

July 8, 2014

All that for a bag of chips: Walgreens pays $180K to settle ADA claim

A few months ago, I blogged about a California federal court decision, which recognized that Walgreens may have an obligation under the Americans with Disabilities Act to accommodate one of its cashiers who opened a $1.39 bag of chips (without having paid for it first) because she was suffering from an attack of hypoglycemia (low blood sugar).

That post was entitled "The ADA may require companies to accommodate employee theft. Yep, stealing."

Unfortunately, definitive guidance on that will have to spring from another lawsuit. That is, Walgreens settled for $180,000 last week. A copy of the consent decree is embedded below (and can also be found here).

Now, I'm reasonably sure that Walgreens is right that employee theft is not a reasonable accommodation for an ADA disability. And let's assume that Walgreens has strict rules on employee theft and grazing.

But would failing to discipline this cashier really blow the lid off of Pandora's Box? Or did a Supervisor / HR Manager / Lawyer (some combination) simply overreact by failing to cut some slack to a diabetic employee who needed to eat a small bag of potato chips -- I'll draw the line at a can of Pringles -- to avoid a low blood sugar attack?

You know, it's important to train your managers how to address ADA accommodation issues. It's also important to remind your managers that using their best judgment counts for something too.

Who knows? It may only cost you $1.39, instead of $180,000.

June 19, 2014

#SHRM14: Let's grab coffee (you're buying)

shrm.jpgAnd by coffee, I mean turkey legs and frozen blueberry-mango rum lemonade.

Whoa, whoa, whoa, slow down...

You see that badge over there? You know what I had to do to get that badge?
Buy the full version of Photoshop
Spike the Kool-Aid of everyone on the SHRM Annual Conference Speaker Selection Committee
I beat out thousands (trillions?) of other speaker submissions to be selected as a SHRM 2014 Annual Conference & Exposition speaker.

And, crew, I got selected to speak not once, but twice. Know what that means? ***Ducks Lucifer's pitchfork***  Say, is it just me, or do any of you smell sulfur?

It means that SHRM trusts me to speak intelligently about: (1) social media in the workplace; and (2) tackling leave issues under the FMLA/ADA.

That's a lot of pressure. Let's just hope I remember to wear pants. Pretty sure I can pull it off. (The pants and the presentations).

But otherwise, when I'm not speaking, Your Blogness is up for whatever; not in a Bud Light "Up for Whatever" kinda way. See, turkey legs, et al, supra. Rather, I'd like to meet some of my readers -- the ones that aren't crazy stalkers.

So, if you're not a crazy stalker, and you like this blog, and you're gonna be at SHRM14, then drop me a line, and let's plan some time to meet. I look forward to catching up.

See you in Orlando.

June 16, 2014

EEOC sues a nonprofit that assists the disabled for, yep, disability discrimination

So much for that case of Monday writer's block...

From a recent EEOC press release:

According to the EEOC's suit, Disability Network denied a deaf independent living specialist reasonable accommodations and then fired him. For example, the nonprofit refused the employee his requests for TTY equipment, a video phone and the ability to use text messaging, and refused to provide him with alternate accommodations.

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"The irony in this case is incredible," said EEOC Trial Attorney Nedra Campbell. "Disability Network was formed to help and protect people with disabilities - and so was the ADA, under which we now have to sue them for violating their mandate and betraying an employee."

June 11, 2014

If you have questions today about FMLA/ADA leave issues, I've got your hook up

Thumbnail image for weknownext.pngIn two weeks, at the SHRM Annual Conference, I'll be presenting "Meeting the Challenges That Leaves of Absence and Attendance Issues Present Under the FMLA and ADA." 

The good news is that I have 75 minutes of HR greatness planned for my SHRM sesh. The bad news is that my presentation is at 7:00 AM on the day after the #SHRM14 Social Bash at the Hard Rock Cafe.

So, let's just say "Hey, thanks a lot, SHRM!" that I anticipate an intimate gathering of HR hardcore FMLA/ADAthletes for my spiel.

What do you think? Should I provide coffee or hair of the dog? Irish Coffee it is!

If, somehow, you miss my session because [insert another inappropriate comment here] or you won't be at the SHRM Annual Conference, you're not our of luck. Because...

Me, you, Twitter, today 3 pm. Your FMLA/ADA questions; my answers. Details here.

Let's do this, yo.

June 10, 2014

The firefighter afraid of fighting fires loses his ADA claim. Right, you guys? Right?!?

If I could drink up your collective skepticism when it comes to these Americans with Disabilities Act cases...

...I'd need my stomach pumped.

Let's see. There's the one about the utilityman who couldn't climb utility poles, but had an ADA claim against a utility company. And then who can forget the bridge worker with the fear of heights who presented a viable ADA claim? And what about the stripper who feared climbing the stripper pole?

Let's travel down to Texas, where everything's bigger; including the wacky ADA cases.

This latest doozy made it all the way to the Texas Supreme Court.

It involves a firefighter captain from Houston who, on two separate occasions, apparently became frightened when it came time to enter a burning building. 

The firefighter's doctor noted an episode of global transient amnesia but approved his return to work. The City, however, was all like, WTH?!? and fought the firefighter's return to active duty in court. 

The firefighter countersued, alleging that his employer had violated the ADA when it reassigned him to the training academy and refused to restore him to his prior position in fire suppression.

A jury found in the firefighter's favor  on the ADA claim and an appellate court affirmed.

Yeah, no. He's not disabled.

The Texas Supreme Court; however, reversed. It concluded that the firefighter was not disabled:

"There is no evidence from which a reasonable and fair-minded jury could conclude that Proler was disabled. The jury heard evidence of two incidents where Proler was allegedly unable to provide useful help to his firefighting team during actual fires at two residential buildings. Being unable to set aside the normal fear of entering a burning building is not a mental impairment that substantially limits a major life activity.

* * *
...If one considers the NBA, the capacity to play professional basketball is an ability; the rest of us do not suffer from a disability because we cannot play at that level. A job skill required for a specific job is not a disability if most people lack that skill."

But what about a perceived disability? Because even if the firefighter is not disabled, if the City perceived him as such, and it motivated an adverse employment action, then ka-$hing!

But alas, no, the Texas Supreme Court was not buying that argument:

"But there is no evidence from which a reasonable and fair-minded jury could find that the City perceived Proler to be suffering from a mental impairment that substantially limited a major life activity. The evidence was entirely to the contrary--indicating Proler was removed from a front-line firefighting position only because City decision-makers had received information that Proler had frozen at two fires, and he was therefore perceived to be unable to do his particular job as captain of a firefighting crew. Even Proler's mother agreed that the department acted properly in removing him from the scene of the second fire."

There's no strikethrough on that last sentence, is there?

***Evernotes reminder to raise the "mother agreed" defense next time I litigate in Texas***

Takeaways from this post:

  1. I regret not going with this song.

  2. This case was decided based on the ADA, prior to its 2009 amendment. As y'all (what I did there, you see it) know, the Americans with Disabilities Act Amendments Act now makes it hella-easy to demonstrate a disability.

  3. I SLAYED the list below. Crushed it! (First song is NSFW)

June 2, 2014

Just how badly did a federal appellate court trash extended leave as a reasonable accommodation?

Shared_Image_20140601_224905.jpegI'm feeling rather charitable this evening as I punch out this post. Maybe it's the proud feeling of crossing off my bucket list taking my four-year-old son to a Sunday early-bird at the biggest dive bar in South Jersey. (*Bonus points if you can guess the bar).

Well, I'm not sure if "proud" really captures it.

(And before you call DYFS, that's sour mix pineapple juice).

But anyway, get a load of this opinion from the Tenth Circuit Court of Appeals. If you're representing an employer and happen to be teeing up a dispositive motion where the issue is whether six months of leave is a reasonable accommodation, then look no further.

Generally, six months of leave is not a reasonable accommodation.

Here are the basic facts:

Plaintiff-employee has cancer (disability) and defendant-employer has a six-month leave policy. Employee takes six months of leave, after which, she requests an additional semester of leave, promising to return in the Summer. Employer says no and offers employee long-term disability (essentially firing her). Employee sues under the Rehabilitation Act (the equivalent of the Americans with Disabilities Act), alleging that her employer should have accommodated her with the additional leave.

Employer wins. (Although, you probably figured that out already).

But, not only did the employer win, it was on a motion to dismiss, rather than a motion for summary judgment. So, you know the lower court and the affirming appellate court came out guns blazing.

Quotables from the the 10th Circuit's blistering opinion.

So, get ready management-side lawyers, here come the money quotes from the opinion. And since I'm not sure whether Westlaw has published it yet, if you're reading this post, you'd better cite it in your brief.

(Just leave out the taking-the-four-year-old-to-the-dive-bar part, ok?)

Here we go:

  • "Must an employer allow employees more than six months' sick leave or face liability under the Rehabilitation Act? Unsurprisingly, the answer is almost always no."

  • "It perhaps goes without saying that an employee who isn't capable of working for [six months] isn't an employee capable of performing a job's essential functions -- and that requiring an employer to keep a job open for so long doesn't qualify as a reasonable accommodation."

  • "[R]easonable accommodations -- typically things like adding ramps or allowing more flexible working hours -- are all about enabling employees to work, not to not work."

  • "[I]t's difficult to conceive how an employee's absence for six months -- an absence in which she could not work from home, part-time, or in any way in any place -- could be consistent with discharging the essential functions of most any job in the national economy today."

  • "[I]t is difficult to conceive when requiring [six months of leave] from an employer might qualify as a reasonable accommodation."

  • "The Rehabilitation Act seeks to prevent employers from callously denying reasonable accommodations that permit otherwise qualified disabled persons to work -- not to turn employers into safety net providers for those who cannot work."

  • "In the first place, the EEOC manual commands our deference only to the extent its reasoning actually proves persuasive....And the sentence Ms. Hwang cites doesn't seek to persuade us of much. It indicates that an employer 'must' modify a leave policy if the employee 'needs' a modification to ensure a 'reasonable accommodation'"

  • "[T]he EEOC seems to agree with our conclusion that holding onto a non-performing employee for six months just isn't something the Rehabilitation Act ordinarily compels."

  • "[A]n inflexible leave policy can serve to protect rather than threaten the rights of the disabled -- by ensuring disabled employees' leave requests aren't secretly singled out for discriminatory treatment, as can happen in a leave system with fewer rules, more discretion, and less transparency."

  • "[T]he leave policy here granted all employees a full six months' sick leave -- more than sufficient to comply with the Act in nearly any case."

Dayyyyyyyyum!

But before you dust off those no-fault policies...

The Tenth Circuit did not go so far as to say that leave of any length is no longer a reasonable accommodation. Indeed, other parts of this opinion (and common sense) should have you re-thinking that:

"[A]n employee who needs a brief absence from work for medical care can often still discharge the essential functions of her job. Likewise, allowing such a brief absence may sometimes amount to a (legally required) reasonable accommodation so the employee can proceed to discharge her essential job duties. After all, few jobs require an employee to be on watch 24 hours a day, 7 days a week without the occasional sick day."

Also, the court pointed out that "no-fault" leave policies with very short leave periods may not comport with the ADA. Similarly, a sham policy would fail too.

But the big takeaway here is that we have another court holding that six months of leave is generally not a reasonable accommodation.

May 29, 2014

An ADA accommodation just has to be reasonable -- not the employee's first choice

This is my son's first year playing t-ball. The rules, in case you're not familiar with them, are simple: 

  • Everybody hits
  • Everybody (eventually) rounds the bases
  • Everybody scores

Some games, my son wants to lead off. Some games, he wants to hit last. Ultimately, it doesn't matter where he hits. The coach can place him anywhere in the batting order because he will hit, he will round the bases, and he will score.

The Americans with Disabilities Act is similar in that respect. It requires an employer to accommodate an employee with a disability if doing so will not create an undue hardship for the employer and will allow that employee to perform the essential functions of the job.

The ADA regulations include a non-exhaustive list of reasonable accommodations. Does the employee get to choose which one? Sure, the employee can express his/her desire. But, ultimately, the employee should get one that is reasonable, whether it is the employee's choice -- or not.

A recent case reflects this. In Bunn v. Khoury Enterprises, Inc., Mr. Bunn, who is disabled (visual impairment), sought an accommodation to allow him to perform his essential job functions. So, the employer restructured the employee's job. The accommodation worked. But, since it was not the accommodation Mr. Bunn wanted, he sued, claiming a violation of the ADA.

The lower court granted summary judgment to the employer and, on appeal, the 7th Circuit affirmed, because the the job restructuring, while not the employee's preference, nonetheless allowed the employee to perform the essential functions of the job:

"In short, it was exactly the kind of accommodation envisioned by the regulations applicable to the ADA....the undisputed facts show that Khoury did what it was required to do by law....In this area of the law, we are primarily concerned with the ends, not the means...Bunn's apparent displeasure with the way in which Khoury decided on that accommodation, or with its failure to provide the exact accommodation he would have preferred, is irrelevant."

Does this mean that employers should resort to the my-way-or-the-highway approach to workplace accommodations? Certainly not. Oftentimes, providing the employee with a preferred accommodation will not increase expense or inconvenience and, instead, will satisfy the employee.

And although the 7th Circuit underscored that an employee will not prevail on a "failure-to-accommodate" ADA claim by merely showing that the employer failed to engage in an interactive process with the employee or that it caused the interactive process to break down, an employer that goes through the interactive process should have an easier time establishing it acted reasonably when responding to an employee's request for accommodation.

Because, after all, an employer just needs to act reasonably.


May 22, 2014

Firing a sick employee just before she is FMLA-eligible is very risky

Thumbnail image for fmla.jpegSo, check this out.

I read this case yesterday about an employee who provided her company with a November 12 doctor's note, requesting that her hours be reduced due to her high-risk pregnancy. The employee would have become eligible for coverage under the Family and Medical Leave Act on November 17.

The company fired her on November 16.

Man, that is cold! But is it unlawful?

To prevail on her FMLA interference claim, an employee must show, among other things, that she is eligible for FMLA coverage.

She gives notice on November 13 when she's not eligible. But the FMLA will start on November 17, when she is eligible. And the company fires her in the interim.

Hmm.....

The Court said, under the circumstances, yes:

The determination of whether an employee . . . has been employed by the employer for a total of at least 12 months must be made as of the date the FMLA leave is to start. An employee may be on non-FMLA leave at the time he or she meets the 12-month eligibility requirement, and in that event, any portion of the leave taken for an FMLA-qualifying reason after the employee meets the eligibility requirement would be FMLA leave.
* * *
Defendant does not contend that Wages was not entitled to use sick leave, personal leave, or vacation time to cover her reduced time until she became FMLA-eligible. The only reason Wages was not able to reach her eligibility date is because Defendant fired her before she could do so. The Court therefore finds that Wages was an eligible employee under the framework established by the FMLA.

In a nutshell, can you terminate an FMLA-seeking employee just before his/her one-year anniversary with the company?

Not if that employee can bridge the gap between FMLA-ineligible and FMLA-eligible by using accrued time off.

But, under certain circumstances, yes. For example, if that employee seeks FMLA to care for a spouse with a serious health condition and the employee will run out of accrued time off before becoming FMLA-eligible, then yes.

However, if you're dealing with an employee who seeks FMLA leave for his/her own serious health condition, even if the employee will run out of accrued time off before becoming FMLA-eligible, firing that employee could run afoul of the Americans with Disabilities Act. The ADA requires reasonable accommodations for employees with disabilities. And since many serious health conditions qualify as disabilities too. And time off may be a reasonable accommodation. You smell what I'm cookin'?

Trust me, it won't end up well for you.

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If you're on LinkedIn, consider joining the discussion of news, trends and insights in employment law, HR, and the workplace, by becoming a member of The Employer Handbook LinkedIn Group. Tell 'em Meyer sent you.

May 5, 2014

FACT OR FICTION: There is such a thing as a reverse-disability claim?

Fact or Fiction?That's right folks. It's time for another edition of "Fact or Fiction" a/k/a "Quick Answers to Quick Questions" a/k/a QATQQ f/k/a "I don't feel like writing a long blog post."

Try this one for size, folks.

In this case, an employee argued that her former employer retaliated against her, by terminating her for complaining about the favorable treatment a co-worker with a special needs child received.

Oh, for the love of God, please let the answer to today's "Fact or Fiction" be the latter.

Pretty please...

The ADA prohibits an employer from discriminating against an a qualified individual (i.e., a disabled individual who can perform the essential functions of her job with or without a reasonable accommodation). However, if you are not disabled, you're not covered under the ADA.

Indeed, the ADA provides that "[n]othing in this chapter shall provide the basis for a claim by an individual without a disability that the individual was subject to discrimination because of the individual's lack of disability."

Therefore, an individual who gets all bent out of shape because her employer shows compassion toward employees with disabilities (or employees who have children with disabilities), has no claim under the ADA.

The answer to today's question is fiction.

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If you're on LinkedIn, consider joining the discussion of news, trends and insights in employment law, HR, and the workplace, by becoming a member of The Employer Handbook LinkedIn Group. Tell 'em Meyer sent you.

May 2, 2014

Withdrawing a job offer because of an applicant's prior injury may violate the ADA

Two big EEOC pet peeves right now are:

  1. employers who discriminate in the hiring process; and

  2. employers who violate the Americans with Disabilities Act based on misconceived notions about how an individual's health could impact that person's ability to perform essential job functions.

So, you've really got to be pushing your luck by betting the daily double and avoiding EEOC backlash.

Last week, Florida-based company's gamble didn't pay off as a federal court granted summary judgment in favor of the EEOC (opinion here) based on allegations that the employer violated the ADA by withdrawing a job offer because of the plaintiff's old back injury.

Here are the facts of the case (from the EEOC's press release):

"According to the EEOC's suit, ATM made a provisional job offer to Michael Matanic as a process engineer, pending a health release. The company conducted a post-offer medical examination which revealed that Matanic had a successful back surgery six years prior for which he could not provide a medical release indicating he had no restrictions. After ATM's post-offer medical examination provider, Lakeside Occupational Medical Clinic, learned this, it refused to perform a back screen and complete Matanic's physical examination. ATM, falsely regarding Matanic as disabled, withdrew the job offer and terminated his employment. In the meantime, Matanic actually performed the job at ATM for two months while he attempted to obtain the requested medical release. At the time of his termination, Matanic was in good health and had a recent medical examination showing that he had no physical limitations on his ability to perform his job."

Under the ADA, a "disability" is an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment. Here, the court concluded that, by requiring the plaintiff to provide a medical release because of a prior back injury, the defendant regarded him as disabled.

Further, the ADA requires an individualized assessment of whether a disabled employee can perform the essential functions of the job. The defendant did not make this assessment. (Much like in this case, which is one my favorites when training employers). Instead, it relied upon "myths and fears" about the prior back injury in denying employment.

Oops. 

Employers need to be very careful when getting into an applicant or employee's medical history. For more on medical-related inquiries and the ADA, check out this guidance from the EEOC.

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If you're on LinkedIn, consider joining the discussion of news, trends and insights in employment law, HR, and the workplace, by becoming a member of The Employer Handbook LinkedIn Group. Tell 'em Meyer sent you.

April 29, 2014

Teacher can't return to work two weeks after maternity leave ends, but may have an ADA claim

Recently, I gave a webinar about the interplay between the Family and Medical Leave Act and the Americans with Disabilities Act. One of the takeaways there was that, when an employee's 12 weeks of FMLA leave expire, you need to be thinking about ADA implications rather than processing a pink slip at 12 weeks and a day. This is because additional leave may be a reasonable accommodation.

The same issues can arise if you have a pregnant employee. That is, you need to consider the interplay between the Pregnancy Discrimination Act and the ADA.

A recent case shows how the ADA may apply to pregnant employees.

Trevis Reed was a Special Education Teacher in Louisiana, until she was fired from her position. Ms. Reed was pregnant and used all of her allotted leave time from August 2011 from February 2012.

Ms. Reed was scheduled to return to work on February 15, 2011, however her psychiatrist would not clear her to return until two weeks later, on February 28, 2011. The school refused to grant the extra two weeks of leave, and fired Ms. Reed when she failed to return to work on the 15th.

Ms. Reed then sued for violation of the ADA.

Two weeks of additional leave may be a reasonable accommodation.

The school did not challenge that Ms. Reed was disabled. (Note: Pregnancy is not a disability. However, postpartum depression could be). Rather, the school argued that, when it fired Ms. Reed, she was not a qualified individual within the definition of the ADA. That is, she could not perform the essential functions of her job with or without a reasonable accommodation.

Even though the plaintiff's counsel failed to address the school's argument that Ms. Reed was not qualified, the Court, on its own examination, still denied the School's motion for summary judgment. That is, it determined in this opinion that a reasonable jury could conclude that an additional two weeks of leave was a reasonable accommodation for Ms. Reed:

"The Court does not find on this record that Reed's request for the additional leave was improper, or that it fell beyond the bounds of the general rule that a reasonable accommodation may include "providing additional unpaid leave for necessary treatment." Nor does the Court find on the existing record that after February 28, 2011 Reed was inhibited from fulfilling the necessary requirements of the job."

Takeaways for employers

Unfortunately for employers, there is no magic formula to determine how much additional leave, beyond that which an employee has already been allotted, is reasonable. Each case -- and each leave scenario -- stands on its own set of facts. That said, consider these takeways:

  1. The more leave you initially provide, the tougher it will be to argue that a brief period of subsequent leave is unreasonable.

  2. Denying two weeks of additional leave to a new mom who is suffering from doctor-certified postpartum issues is cold as ice. That's a great way to earn yourself a jury trial.

  3. Many of PDA/FMLA leaves of absence will involve ADA issues and, thus, foreshadow an interactive dialogue to discuss reasonable accommodations. Don't wait until leave is about to end to broach this subject. Plan ahead. Communicate with that employee early and often.

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If you're on LinkedIn, consider joining the discussion of news, trends and insights in employment law, HR, and the workplace, by becoming a member of The Employer Handbook LinkedIn Group. Tell 'em Meyer sent you.

April 25, 2014

I ran my mouth for an hour and six minutes about the FMLA/ADA interplay

tlnt.pngOnly the dorkiest of HR/Lawyers dorks could appreciate this webinar.

Here is the recording.

Here are the slides.

Happy dork day!

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Want to dork-out even further? If you're on LinkedIn, consider joining the discussion of news, trends and insights in employment law, HR, and the workplace, by becoming a member of The Employer Handbook LinkedIn Group. Tell 'em Meyer sent you.

April 23, 2014

Sixth Circuit redefines the "workplace" when considering attendance as an ADA essential job function

Thumbnail image for telecommute.jpgThese blogging fingers have had much to say about telecommuting as a reasonable accommodation under the Americans with Disabilities Act.

Now, if you'll excuse me, these blogging fingers are going to dunk broccoli into spinach dip.

Ok, I'm back.

Whether telecommuting is a reasonable accommodation was a business decision.

Most notably, last September, in this post, I addressed a case in Michigan in which the U.S. Equal Employment Opportunity Commission argued that Ford Motor Company should be required to accommodate an employee with irritable bowel syndrome (an ADA disability) by allowing her to telecommute several days per week.

Ford's managers concluded that the plaintiff could not work from home on a regular basis for up to four days a week. Choosing not to second-guess Ford's business judgment, federal court hearing the case granted summary judgment to Ford.

Now, the modern workplace is more than just the office.

Yesterday, the Sixth Circuit Court of Appeals reversed (opinion here).

Once again, Ford argued that attendance at work was an essential job function and, by telecommuting several days per week, the plaintiff could not meet that requirement.

The appellate court agreed that attendance may be an essential job function. However, the Sixth Circuit recognized that technology has extended the workplace beyond the office's brick and mortar, such that "attendance" may include telecommuting:

"When we first developed the principle that attendance is an essential requirement of most jobs, technology was such that the workplace and an employer's brick-and-mortar location were synonymous. However, as technology has advanced in the intervening decades, and an ever-greater number of employers and employees utilize remote work arrangements, attendance at the workplace can no longer be assumed to mean attendance at the employer's physical location. Instead, the law must respond to the advance of technology in the employment context, as it has in other areas of modern life, and recognize that the 'workplace' is anywhere that an employee can perform her job duties."

But, whether "physical" attendance at work is an essential job function is a "highly fact specific" question. It depends on factors such as the need for face-to-face interaction with customers and clients. And while the company's business judgment on these issues is important, it is not dispositive. Rather, if in reality, an employee can demonstrate that he/she can effectively perform her job while telecommuting, a court will give that assessment some weight.

So, what is an employer to do with this decision?

  1. Even though it only controls in the Sixth Circuit, the court's 21st century analysis of the workplace should appeal to other courts throughout the country. Therefore, I would expect that this commonsense view of how technology impacts the workplace will soon become the rule, rather than the exception. So, says the blogger.

  2. Reassess your job descriptions and determine whether a physical presence in the office is an essential job function. And, if you update the job description accordingly, make sure that it accurately reflects how job duties are actually best discharged. Get feedback your managers and employees.

  3. If you are going to allow some employees to telecommute, courts may assume that telecommuting would be a reasonable accommodation for other disabled employees. just be prepared for that.

I'll lay 2-1 that Jon Hyman will have a post on this case today at his blog. So, be sure to check that out.

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