Recently in Disability Category

October 29, 2014

HR CHEATSHEET: When an employee texts you from an Ebola quarantine tent

Five minutes ago, after taking the obligatory selfies and between games of Candy Crush, one of your employees texted (because, calling in, as if!) from an Ebola quarantine tent to alert you that she will be out of work for 21 days, while under observation for Ebola.

As an employer, what are your obligations? What workplace laws are implicated?

And, of course, because half of you are thinking it, can you just fire her?

Because this post has nothing to do with clicks or SEO -- nothing whatsoever -- click through for the answers...

* * *

Continue reading "HR CHEATSHEET: When an employee texts you from an Ebola quarantine tent" »

October 28, 2014

Tweet today with the EEOC about the Americans with Disabilities Act #EEOC4NDEAM

I'll be at the SHRM Lehigh Valley Annual Conference today presenting "What's Hot at the EEOC...and How to Avoid Getting Burned!" with the EEOC's Mary Tiernan.

If you're at the conference, stop by with pizza and beer and say hello with pizza and beer.

However, if you can't make it, Domino's delivers, and you still want to get your Equal Employment Opportunity learn on, then there's this from the from the EEOC:

The U.S. Equal Employment Opportunity Commission (EEOC) will hold a live Twitter chat on Tuesday, Oct. 28, from 2:00 to 3:00 pm (EDT). In commemoration of National Disability Employment Awareness Month (NDEAM), the interactive online forum will focus on the federal government as a model employer of people with disabilities. EEOC Chair Jenny Yang and Commissioner Chai Feldblum will answer questions during the hour-long chat. 
Members of the public are encouraged to participate by submitting questions using the hashtag #EEOC4NDEAM. The EEOC invites queries regarding the hiring, promotion and retention of people with disabilities in the federal government and suggestions on how agencies can increase the number of people with disabilities in the federal workforce.

Here's my question: "When will the #EEOC issue guidance on leave as a reasonable accommodation? #EEOC4NDEAM #HurryUpAlready #PrettyPlease #DorkiestPrettyPleaseEver"

social_media_at_work_btn_dLRG.PNG

October 23, 2014

Court gives cold shoulder to frostbite as an ADA disability

See that lede right there! That's journalism, baby!

After the jump, let's talk about what it means to have a disability under the Americans with Disabilities Act Amendment Act.

* * *

Continue reading "Court gives cold shoulder to frostbite as an ADA disability" »

October 7, 2014

Remember that a duty to accommodate may exist after childbirth

Seems one employer may not have received the memo. Now, the EEOC is taking aim. More on this and some tips for employers to avoid pregnancy-accommodation traps, after the jump...

* * *

Continue reading "Remember that a duty to accommodate may exist after childbirth" »

September 19, 2014

A company so concerned about an employee with cancer....it fired her?!?

That ain't legal, yo.

I'll tell you why after the jump...

* * *

Continue reading "A company so concerned about an employee with cancer....it fired her?!?" »

September 10, 2014

EEOC takes on fitness-for-duty medical releases; how to avoid the crosshairs.

Congratulations!

Your fitness-for-duty employee medical examinations are job-related or consistent with business necessity. So, they pass muster under the Americans with Disabilities Act. But, what about the medical information you request from employees in connection with those exams? 

Oh yeah, there's that too...

Ask for too much info and you might you be violating not only the ADA, but also the Genetic Information Non-Discrimination Act.

Rut roh! More after the jump...

* * *

Continue reading "EEOC takes on fitness-for-duty medical releases; how to avoid the crosshairs." »

September 8, 2014

Apparently, the ADA requires accommodating an employee's anger issues with a Shih Tzu named "Sugar Bear"

Hey, I don't make this stuff up. I just blog about it.

More after the jump...

* * *

Continue reading "Apparently, the ADA requires accommodating an employee's anger issues with a Shih Tzu named "Sugar Bear"" »

August 21, 2014

Yes, you can fire an employee who discloses a disability at his termination meeting

Filed under: duh!

More on this one after the jump...

* * *

Continue reading "Yes, you can fire an employee who discloses a disability at his termination meeting" »

August 13, 2014

An employer-defendant argued that cancer -- CANCER!!! -- is not an ADA disability

How do you think that worked out? (I've got a pretty good guess too).

After the jump, let's see if we're right.

* * *

Continue reading "An employer-defendant argued that cancer -- CANCER!!! -- is not an ADA disability" »

August 8, 2014

Court says having to pee uncontrollably is not an ADA disability

Talk about a pissed-off plaintiff. 

I'll be here all week. (Thank God it's Friday).

More on this interesting Americans with Disabilities Act decision after the jump...

* * * 

Continue reading "Court says having to pee uncontrollably is not an ADA disability" »

August 7, 2014

Guess why dude lost his ADA failure-to-accommodate claim. (Hint: he didn't ask for one).

When the new amendments to the the Americans with Disabilities Act took effect in 2009, the law became more employee-friendly by expanding the definition of what constitutes a disability.

That said, the law doesn't (yet) require an employer to have a sixth sense about whether a disabled employee requires a reasonable accommodation.

Generally, an employee has to ask for it. Or, as we find out after the jump, an ADA failure-to-accommodate lawsuit is pretty much doomed.

* * *

Continue reading "Guess why dude lost his ADA failure-to-accommodate claim. (Hint: he didn't ask for one)." »

August 1, 2014

FACT OR FICTION: The ADA requires all employers to offer light duty.

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."

Peep this ADA failure-to-accommodate case. Plaintiff is disabled and requests light duty. However, the evidence presented showed that there were no light duty positions available and the plaintiff presented no evidence to the contrary.

In denying the plaintiff's ADA claim, the court underscored that it's the plaintiff's burden to show that a requested reasonable accommodation exists and is available. Otherwise, my friends, if it's not available, then it's not reasonable.

The answer to today's QATQQ is fiction.

July 31, 2014

Disclosing an employee's medical info on Facebook is hella-stupid

Plus, it may violate the Americans with Disabilities Act too.

How one company's alleged blunder turned into an ADA lawsuit and a blog post at TheEmployerHandbook.com...after the jump...

* * *

Continue reading "Disclosing an employee's medical info on Facebook is hella-stupid" »

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