Recently in Disability Category

April 9, 2014

Playing golf and having sex are major life activities under the ADA

golfhole.jpgWhen Congress enacted the Americans with Disabilities Act Amendment Act, which went into effect on January 1, 2009, it indicated that one of its purposes was to "convey that the question of whether an individual's impairment is a disability under the ADA should not demand extensive analysis."

I vaguely recall some of the floor discussion in anticipation of the passage of the ADAAA:

"I yield to the Senator."

"Thank you, Senator. With all this discussion about amending the Americans with Disabilities Act to more broadly define the definition of disability, I wonder aloud whether we need to explicitly include playing golf and -- err -- making whoopie in that list of major life activities that includes with sleeping, walking, standing, lifting, and bending. I'm just sayin is all..."

(silence)

"Yeah, probably not necessary. I yield the floor..."

Well, guess what?

In this federal appellate decision issued late last month, that's basically what the court said.

A plaintiff sued his former employer alleging a violation of the ADA. The employer claimed that the plaintiff's back injury did not constitute a disability. Except, the plaintiff's physician submitted an affidavit, which stated that the the back issues impacted the plaintiff's ability to walk, bend, sleep, and lift more than ten pounds.

Noting that each of these activities is specifically enumerated in the list of ADA major life activities, the court had little trouble concluding that the plaintiff was, indeed, disabled.

But, then, there was that sex and golf thing. Although not specifically listed as major life activities, they're kind've a big deal:

"Second, although Mr. Mazzeo testified at his deposition that his back problems only affected his ability to play golf and have sex, the district court read that testimony too broadly. The questions that were posed to Mr. Mazzeo did not contain a specific time frame, making it unclear whether his answers referred to how he felt before his operation in March of 2009, or after his operation...We therefore do not think that Mr. Mazzeo's deposition testimony warranted summary judgment in favor of CRI."

The implication here is that if the plaintiff's pre-operation back trouble substantially limited his ability to [insert one of many golf double entrendres here], then he is disabled.

So, learn from this case. No, I'm not saying [insert one of many golf double entrendres here]. What I am saying; however, is that if an employee comes to you requesting an accommodation for a purported disability, don't expend a lot of brain cells contemplating whether the employee is disabled.

Instead, focus your energy on discussing with the employee what reasonable accommodation(s) will allow that employee to perform the essential functions of the job.

* * *

P.S. - If you're on LinkedIn, consider joining the discussion of news, trends and insights in employment law, HR, and workplace, by becoming a member of The Employer Handbook LinkedIn Group. It's practically a major life activity.*

*Not really. Actually, not at all.

April 2, 2014

A post about David Crosby, alcohol, and the ADA

davidcrosby.jpg

On Monday, it was public urination.

Yesterday, we had indecent proposals.

And today, the blogging gods, in which I hold a sincerely-held belief, serve me up this federal court opinion about an alcoholic named David Crosby -- not that David Crosby, but still --  who sued his former employer for supposedly violating the Americans with Disabilities Act, as a result of his termination of employment after a 30-day stint in rehab.

Oh, sweet child! Someone catch me; I do believe I have the vapors.

Let us rejoice in the bounty together, after the jump...

* * *

Continue reading "A post about David Crosby, alcohol, and the ADA" »

March 31, 2014

The guy who was fired for peeing in a cup in front of his co-worker claims disability discrimination

peecup.JPGI'm pretty sure Larry David had this written into the Seinfeld Parking Garage episode before making a last-minute script change to uromysitis.

I would have stuck with the former. But, Mr. David is a comedic genius and I just write this crappy blog. 

How bad is this blog, you ask? I was contemplating using the words "wicked pissah" in the lede, only to realize that I'd already used them.

Then again, you're the ones reading this. Go ahead. Click through to read more after the jump...

* * *

Continue reading "The guy who was fired for peeing in a cup in front of his co-worker claims disability discrimination" »

March 25, 2014

Court reasons that unreasonably withdrawing a reasonable accommodation is reason for employee to win ADA suit

timeclock.jpgLet's say that you have an employee whom the Americans with Disabilities Act would consider disabled and to whom you have afforded a reasonable accommodation for a long time.

Maybe it's a few years of light duty to accommodate your employee's bad back. Maybe it's keeping your employee with medically-documented sleeping issues off of the graveyard shift.

Or maybe, like in this case, it's allowing an employee who takes morning meds for ADD and bipolar disorder to arrive to work a late, so the meds can kick in. Indeed, for 2 1/2 years, the employee in this particular situation was accommodated with modified start time.

But following a change in management at the company, without explanation, the employer unilaterally withdrew the accommodation. Just like that. 

So, the employee brought a failure-to-accommodate claim under the ADA.

Now, you may be thinking, can an employer really do that? Can it just stop accommodating an ADA-disabled employee without some sort of justification or demonstrating undue hardship?

Funny, that's what a federal judge was thinking when he not only denied the employer's motion for summary judgment, but also granted the plaintiff's cross motion:

"Crane had already made a reasonable accommodation to enable Isbell to do her job -- for some 2-1/2 years it had accommodated the later-starting work schedule that she had requested to meet her special needs for the performance of her job responsibilities. No real reason has been proffered by Crane as to why a new management broom, who (not incidentally) had no prior knowledge of Isbell's special arrangement or of the needs that had prompted it, should be entitled to start by subjecting her to a one-size-fits-all timing sweep. Indeed, as already indicated in the preceding paragraph, such uniformity of treatment is precisely what the underlying purpose of the ADA rejects."
* * *
Because the undisputed facts, even when construed in Crane's favor, demonstrate that Isbell could and did adequately perform her essential duties for over two years with the reasonable accommodation of a 10 a.m. start time, Crane's sudden replacement of that start time with a more onerous schedule without considering her known disability plainly constituted an unreasonable failure to continue to accommodate that disability under the ADA.

Does this mean that employers who offer long-term accommodations are stuck providing them for life? No. One option is for the employer and employee to re-engage in a good-faith interactive dialogue to determine what other accommodation(s) may allow the employee to perform the essential functions of her job.

But, to discontinue an accommodation altogether, an employer will have to demonstrate that the existing accommodation has become an undue hardship.

Image credit: Eyemage on Flickr

February 21, 2014

"May it please the Court. Being overweight is just like having a neon-green mohawk."

greenmohawk.jpgThat's how I start my next oral argument when defending a claim made under the Americans with Disabilities that one of my employer clients regarded an overweight plaintiff as disabled.

So, who wants some of what I'm drinking today?

Hey, it's peppermint tea, jerk! And I'm not pulling this blog lede out of my butt. Well, not completely, I'm not.

Check out this recent federal court decision in which a plaintiff alleged that her former employer violated the ADA by firing her because it regarded her as morbidly obese.

Now, for those of you who are a little rusty on the "regarded as" ADA claims...

*** pulls collar ***

The ADA covers those individuals whom an employer regards as having a disability, even if they don't actually have one. A plaintiff establishes a "regarded-as" claim by showing "that he or she has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity."

(More on "regarded as" here)

So, getting back to this recent case, in the context of a "regarded as" ADA claim, the judge likened being overweight to having a neon green mohawk, neither of which qualifies as a disability:

"Plaintiff's argument improperly equates a physical characteristic (i.e., overweight status) with an impairment. However, plenty of people with an 'undesirable' physical characteristic are not impaired in any sense of the word. To illustrate the point, suppose plaintiff wore her hair in a neon green mohawk. Such an unconventional hairstyle choice might be viewed as unprofessional, and might well impede her efforts to sell hospice services to physicians and senior living facilities, but it obviously is not a physical impairment. The same goes for weight. An overweight sales representative may have difficulty making sales if the prospective customer perceives her appearance to be unprofessional, but that does not render her weight a 'physical or mental impairment' within any rational definition of the phrase. At most, plaintiff's evidence is that Merrell perceived that Gentiva customers were less likely to purchase hospice services from an overweight sales representative (just as they would be less likely to purchase such services from a sales representative sporting a green mohawk). Neither the hairstyle nor the weight is an actual or perceived impairment in that scenario. Yet that is all plaintiff offers on summary judgment."

Now, of course, there may be situations in which morbid obesity could be an actual disability, where it affects a major life activity. Similarly, an employer could perceive an overweight employee to be disabled. 

Just don't let that perception motivate you to fire the employee. 

Then, you'll have more problems than the dude in the neon green mohawk.

Image Credit: Alechemy Overload on Flickr

(h/t Disability, Leave & Health Management Blog)

February 19, 2014

Does the ADA require accommodating a graveyard shift employee with insomnia?

mrsandman.jpgLet's assume that you run a factory in which employees are scheduled on one of two shifts: (1) 6:00 AM - 6:00 PM; or (2) 6:00 PM to 6:00 AM.

One of your employees comes to you with a doctor's note which states that working the graveyard shift will cause the employee to suffer migraine headaches and insomnia.

The Americans with Disabilities Act requires that employers accommodate employees with disabilities if doing so will allow the employee to perform the essential functions of her job without creating undue hardship for the employer. One way in which an employer can reasonably accommodate an employee is through schedule adjustment or shift change.

So, if the employee who is susceptible to migraines and insomnia at night asks to stay on the day shift, must you oblige?

This recent federal court opinion describes a situation in which the answer is yes:

Construed in a light most favorable to Plaintiff, the evidence shows that Plaintiff notified Defendants of her extreme insomnia and migraine headaches through a doctor's note, a letter, and verbally alerting them to her conditions. Defendants also were aware that her conditions were triggered if she worked a graveyard shift past 12:00 a.m. Aware of Plaintiff's conditions, Defendant Lopez scheduled Plaintiff for standby, including the possibility that Plaintiff would be called to cover graveyard shifts.

* * *
Defendants do not present evidence that allowing Plaintiff to be excused from working the graveyard shift on April 6, 2011, would have caused them an undue hardship.

Indeed, the employer admitted that it scheduled Plaintiff to work the graveyard shift because of other employees' concerns that Plaintiff was working only day shifts. Thus, working the graveyard shift, in this particular setting, was not an essential job function. Plus, any alleged hit to employee morale caused by allowing the Plaintiff to continue to work the day shift could hardly be construed as undue hardship to the employer.

Now, there may be situations in which the economics or the overall impact in readjusting schedules could present undue hardship for an employer. But, remember that the burden is on the employer to show undue hardship and a court is not just going to accept the employer's say-so if it raises that defense. So, be prepared to back up that undue-hardship defense with numbers and facts.

Otherwise, make the accommodation for your disabled employee.

January 27, 2014

FACT OR FICTION: A temporary disability may be an ADA disability

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."

Let's assume that your employee breaks his leg. Doctors tell your employee that he won't walk normally for seven months. Without surgery, bed rest, pain medication, and physical therapy, he "likely" won't be able to walk for more than a year after the accident.

Bottom line: The employee will heal, but it will take some time.

But is your employee disabled under the Americans with Disabilities Act, as amended by the Americans with Disabilities Act Amendments Act?

According to this decision last week from the Fourth Circuit Court of Appeals, yes:

The amended Act provides that the definition of disability shall be construed in favor of broad coverage of individuals under this chapter, to the maximum extent permitted by its terms....Although impairments that last only for a short period of time are typically not covered, they may be covered if sufficiently severe....Summers alleges that his accident left him unable to walk for seven months and that without surgery, pain medication, and physical therapy, he "likely" would have been unable to walk for far longer. The text and purpose of the ADAAA and its implementing regulations make clear that such an impairment can constitute a disability.

The decision should resonate with employers for several reasons:

  1. It is the first appellate court to apply the ADAAA's expanded ´┐╝´┐╝definition of "disability." And this is a typically conservative, employer-friendly court.
  2. This decision is consistent with the hidden message when you play Kanye West's Yeezus album backwards EEOC guidance providing that an impairment lasting less than six months can constitute a disability.
  3. This really isn't that close a call because the effects of the injury should have lasted more than six months.

So, the answer to today's QATQQ is fact, and employers need to be more receptive than ever to accommodating employees with temporary injuries.

January 9, 2014

ADA leave requests may be verbal or written, just not telepathic

Sorry, Aquaman. You're SOL, son.

But Aquaman does love to get down to MGMT, I'm told. So here you go...

Same goes for the plaintiff in this case -- the telepathy part, not MGMT -- in which the employer had a leave policy which dictated that employees may take up to six months of leave if unable to perform his/her job with or without reasonable accommodation. After that, it's sayonara, unless prohibited by law, or if the employee requests a leave extension.

In this particular case, the plaintiff was out on leave for back surgery. The plaintiff's doctor told him that he probably wouldn't return to work for a year. However, the plaintiff never informed either the employer or the third-party administrator. 

The plaintiff did not request to extend his medical leave of absence in accordance with company policy. He also did not ask to return to work in a different position because he knew his doctor had not released him to work. 

Ultimately, the plaintiff's doctor did clear him to return to work, at which time the plaintiff returned with note in hand. Unfortunately, he came back three days after his six month leave expired. His company had already followed its own policy and terminated the plaintiff immediately after he failed to return at the six-month mark. 

The Court ruled in favor of the employer on the plaintiff's failure-to-accommodate claim under the Americans with Disabilities Act, because the employer followed its own policy and was under no obligation to reconsider its decision when the plaintiff reappeared in the workplace three days after the six month deadline. 

So, learn from this case and practice two takeaways:

  1. Have an ADA policy that emphasizes that the onus is on the employee to communicate the need for leave, or some other form of accommodation under the ADA.

  2. Stick to the policy and limit the number of exceptions. Exceptions water down the policy and lead to lawsuits.
December 30, 2013

The most clicked, hella-best HR-compliance updates from 2013!!!

Ah, it was a good year at the ole Handbook.

Total web traffic was up over fifty percent from 2012. And average time per visit was down over 20%, which is fine by me. I pad my important stats, while discouraging loitering.

five.pngAnd we got our first visitor from Uzbekistan. And the fifth most common search phrase that brought visitors to the site was "Kenny Powers."

Swish!

(6th was "excuses for missing work" -- yikes!)

And, thankfully, our servers have recovered from the beating you pervs HR/Lawyer laureates administered on the recent Facebook groping photo post. Yeah, don't worry. A little hair of the dog, and the blog is back in business.

And, to think, that post didn't even make the Top 5 from 2013. Here's what did:

5. "Feeling 'maybe overworked' is not an FMLA 'serious health condition'"

4. "Court holds that anxiety from possibly getting fired is an ADA disability."

3. "New federal bill would expand FMLA to cover part-time employees"

2. "Employee gets fired for tweeting complaints about discrimination"

1. "When a hostile work environment isn't a hostile work environment"

Dudes, thank you for making 2013 a banner year for The Employer Handbook.

Wishing you all a happy and prosperous 2014!

Eric

P.S. - No post tomorrow, but this Vine of my 1-year-old and I doing "Lollipop" should hold you over until we return in 2014:

December 17, 2013

Telling an employee her "big fat ass needs to concentrate on losing weight" is not discrimination

Let's talk (alleged) big butts and discrimination after the jump...

(Sir Mix-a-Lot is gonna be feelin' this post).

Continue reading "Telling an employee her "big fat ass needs to concentrate on losing weight" is not discrimination" »

December 9, 2013

Must an employer ask if a disability is causing poor job performance?

youarefired.jpg

You've got an employee with performance issues. Big time! Initially, rather than fire her, you make fun of her behind her back put her on a series of performance improvement plans. But, that doesn't result in -- oh, what's the word I'm looking for? -- improvement.

So, you fire her.

Ah, but here's the little wrinkle for today's post. The poor performer experienced frequent migraine headaches and struggled with pain and other symptoms caused by endometriosis. As a result of these conditions, she frequently requested medical leave under the Family Medical Leave Act, which you afforded her.

Given the poor performer's medical issues, before firing her, did you have an obligation to engage in an interactive dialogue with her, consistent with the Americans with Disabilities Act to determine whether her health issues caused her performance issues?

The answer follows after the jump...

Continue reading "Must an employer ask if a disability is causing poor job performance?" »

December 3, 2013

Pregnancy isn't a workplace disability, but how about morning sickness?

morningsickness.jpegAn employee-plaintiff who claims that she was discriminated against under the Americans with Disabilities Act due to her pregnancy alone, will lose her ADA claim 10 times out of 10. This is because pregnancy is not a disability under the ADA.

But what if that same employee plaintiff with an ADA claim alleges that the discrimination relates not to her pregnancy, but rather to her morning sickness?

Hmmm....

The answer after the jump...

Continue reading "Pregnancy isn't a workplace disability, but how about morning sickness?" »

November 20, 2013

Welcome to the Employment Law Blog Carnival: Hollywood Villains Edition

Welcome everyone to the Employment Law Blog Carnival. What you'll find after the jump is the best, recent posts from around the employment-law blogosphere all organized around a common theme.

So, yeah, we need a theme.

[Lousy blog rules]

Two years ago, we spun some tunes with the "Employment Law Blog Carnival: Jukebox Edition." That featured such hits like "If You Love HIPAA, Let Me See You Twerk It" and a Sex Pistols B-side hidden track about social media policies.

Last year, I went with the "Employment Law Blog Carnival: Hollywood Casting Call Edition." To the casual internet user, my writing in that post may have seemed, oh, what's the word, "deranged"? Here is an actual quote:

Stuart Rudner blogs "When trust has been destroyed: Just cause for dismissal." The Canadian adaptation, "Haste Makes Waste," is set for release next year and stars Dustin Diamond as Wayne Gretzky. No, not that Wayne Gretzky. Just some guy who plays a total screw-up and happens to have the same name as the "Great One," which, in turn, helps him to keep his job.

But, to you, my fans, you recognize it as something more than the product of some bad salmon I ingested just before a marathon two-finger typing session. It's gold!

So, mainly since my brain is fried from churning out this drivel -- free drivel -- every weekday, let's stick with the Hollywood theme. How about the Employment Law Blog Carnival: Hollywood Villains Edition? Hannibal Lechter would approve, I'm sure. You may even see him after the jump.

So grab some liver, fava beans and nice chianti and click through to read the carnival offerings...

* * *

Continue reading "Welcome to the Employment Law Blog Carnival: Hollywood Villains Edition" »

November 11, 2013

The ADA still requires a plaintiff to show that he has a "disability"

wheelchair.jpegWhen the Americans with Disabilities Act Amendments Act ("ADAAA") went into effect on January 1, 2009, the changes to the Americans with Disabilities Act ("ADA") emphasized construing the definition of "disability" to provide broad coverage of individuals to the maximum extent permitted by the terms of the ADA.

In other words, nowadays we're all disabled.

However, if you're going to take your employer to trial on a disability discrimination claim, you still need to show a "disability."

Otherwise, the Americans with Disabilities Act would be the "Americans with Act" and that would be more confusing than the Royal Tenenbaums.

Just ask the Fifth Circuit Court of Appeals in this recent opinion:

Although the text of the ADAAA expresses Congress's intention to broaden the definition and coverage of the term "disability," it in no way eliminated the term from the ADA or the need to prove a disability on a claim of disability discrimination. In other words, though the ADAAA makes it easier to prove a disability, it does not absolve a party from proving one.

But, just because the Fifth Circuit is a stickler for the details, doesn't mean that you should be in the workplace. If an employee comes to you complaining of a bad back, or a sore wrist, or the like, sure, you can make them establish it medically. But, know that the burden of establishing a "disability" is low. So, instead, focus on discussing with that individual a reasonable accommodation that will allow the employee to perform the essential functions of the job.


October 17, 2013

An employer is not required to change supervisors as an ADA accommodation

yellingboss.jpgWork got you anxious and depressed? Well then, you may be disabled under the Americans with Disabilities Act. But if you think that the ADA requires your employer to transfer you away from the supervisor who is giving you a hard time, think again.

In Lu v. Longs Drug Stores (opinion here), Ms. Lu claimed that her supervisor discriminated against her based on her national origin and then retaliated against her after she complained. She further alleged that the abuse caused her to develop anxiety, depression, shingles, and diabetes.

On Ms. Lu's behalf, her treating physician requested that the employer transfer her away from her supervisor. The employer declined and, ultimately, terminated Ms. Lu after she missed over a year of work to treat for her various disabilities.

Ms. Lu sued then under the ADA only, claiming that the employer had failed to reasonable accommodate her. The employer admitted that Ms. Lu was both disabled and had suffered an adverse employment action. However, it argued that the transfer request was unreasonable because the law does not require an employer to transfer a disabled employee away from a supervisor.

The court agreed:

The law forecloses Ms. Lu's arguments that a transfer to a different Longs store would have been a reasonable accommodation in this case.... Regardless, ... there is no question of fact that the communications from Dr. Wu failed to convey to Longs that Ms. Lu could return to work if she obtained the accommodation of a transfer.... Accordingly, a transfer would not have been a reasonable accommodation in the specific circumstances of this case because there is no evidence to suggest that a transfer would have allowed Ms. Lu to return to work and perform the essential functions of her job.

Now, while the employer here prevailed on the ADA transfer issue, it may have dodged a bullet when Ms. Lu elected not to pursue claims of national origin discrimination and retaliation.

Don't forget that while the ADA may not require a transfer away from a supervisor, Title VII charges employers with taking steps that are reasonably designed to end discrimination in the workplace. One way this can be done is by transferring the harasser. Another is by transferring the victim.

So, slow down and remember the interplay between anti-discrimination laws...