Articles Posted in Disability

Work 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.

New York City.

As Jay-Z and Alicia Keys sang, it’s the “concrete jungle where dreams are made of. There’s nothin’ you can’t do.”

That includes taking indefinite leave as a “reasonable” accommodation under the New York City Human Rights Law.

To receive the protections of the Americans with Disabilities Act, an individual with a disability must be qualified to perform the essential functions of the job with or without reasonable accommodation. Absent undue hardship, an employer must provide a reasonable accommodation.

So, you’d think that the ADA would require a link between a requested accommodation and an essential job function. Well, not so much according to this recent decision from the Fifth Circuit Court of Appeals, a case in which the Attorney General’s office refused to accommodate one of its attorneys who requested a parking spot close to the office.

Noting that the text of the ADA specifically contemplates “making existing facilities used by employees readily accessible to and usable by individuals with disabilities,” without any indication that an accommodation must facilitate the essential functions of one’s position, the Fifth Circuit held that the ADA does not require a nexus between the requested accommodation and the essential functions of the position.

Let me tell you about a teacher in South Dakota. In 2010, she received a letter communicating concerns about her performance. Subsequent evaluations of the teacher’s classes noted several deficiencies. So, the school placed the teacher on a performance improvement plan.

It was right around this time that the teacher met with a physician’s assistant, who diagnosed the teacher with “anxiety and depression, likely stemming from her concerns about possibly getting fired.”

So, at the teacher’s request, the physician’s assistant wrote a letter to the school seeking a laundry list of accommodations, including:

Last week, I talked about reasonable accommodations under the Americans with Disabilities Act, and the importance of having an open-minded, respectful conversation with a disabled employee who requests an accommodation to perform the essential functions of the job. Ultimately, as I’ve discussed before, the employer (and not the employee) may insist upon a particular accommodation as will enable the employee to perform the essential functions of his job.

But is that always the best move?

Consider this recent case, in which a diabetic service technician requested that his employer provide him with an air conditioned vehicle to keep his insulin cold. Providing an air conditioned vehicle seems pretty reasonable to me. Instead, however, the company had a policy, which allowed all employees “take breaks at restaurants or other establishments to cool off on hot days.” Thus, the company claimed that this policy would be a accommodation and; therefore, the employee should not have refused it.

Rather, it’s just being — oh what’s that word — ‘human.’

Like in this case, in which a supervisor with breast cancer was disciplined — yes, folks, you can reprimand an employee with an ADA “disability” or FMLA “serious health condition” — for allegedly calling other employees names such as “idiot,” “moron,” and “dumbass;” and also striking a few of them on the head for good measure. The supervisor-plaintiff was then demoted and given a pay cut commensurate with the other deputy clerks at her position. When told of the demotion and pay cut, her boss also mentioned that “she should probably focus on her health rather than worry about the stress of supervising people.”

My heavens! I’ve caught the vapors. A boss who expresses concern for the welfare of his employees. Sounds like a terrible place to work!

About two years ago, the EEOC sued a Texas company, alleging that the company engaged in disability discrimination, in violation of the Americans with Disabilities Act, when it fired a 680-pound worker because he was morbidly obese. The EEOC alleged that the employee’s immense weight interfered with his ability to walk, stand, kneel, stoop, lift and breathe. Consequently, he was disabled, as defined under the ADA.

Since then, at least one court has recognized that morbid obesity may be a disability, while another court held that, under state law, morbid obesity is not a disability. It was right around this time that the American Medical Association adopted a new policy that officially labels obesity — not morbid obesity, but obesity — as a disease.

So how does employee obesity impact employers under the ADA? 

Kolja Vraniskoska worked as an Environmental Services Technician for Franciscan Communities, Inc., a nursing home. Ms. Vran– (eh, let’s go with Ms. V) — had several responsibilities as an ES Tech, one of which was pushing and unloading a linen cart. Franciscan required that each ES Tech take a linen cart stocked with fresh linens and transport it from the laundry to their unit by pushing or pulling it down the hall. During the day, the linen cart remained stationary as the ES Tech took fresh linens from the cart. At the end of the day, the ES Tech had to push the linen cart back to the laundry. Transporting the linen cart took approximately fifteen minutes each day.

Ms. V gets hurt

During the course of her employment, Ms. V suffered a wrist injury. Initially, during recovery, her doctor advised that Ms. V should not use her left hand at all. So, Franciscan allowed Ms. V to perform light duty. Eventually, Ms. V’s wrist improved to the point where should could lift up to five pounds. But, her condition never improved. So, Franciscan, which had a policy of providing temporary light duty during recovery, told Ms. V that she had 45 days in which to find another suitable position within the company, or be fired.