That ain't legal, yo.
I'll tell you why after the jump...
That ain't legal, yo.
I'll tell you why after the jump...
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...
Hey, I don't make this stuff up. I just blog about it.
More after the jump...
Filed under: duh!
More on this one after the jump...
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.
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.
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.
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...
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.
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.
(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.
Image credit: GifWave.com
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.
And 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?
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.
So much for that case of Monday writer's block...
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.
* * *
"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."
In 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.