Disability, Leave & Health Management Blog

EEOC Does Not Issue ADA Attendance Guidance, Yet Again

Michael Soltis — Fri, 27 Apr 2012 03:51:55 -0800

The extent of an employer’s obligation to extend leave and excuse absences as a reasonable accommodation under the ADA is perhaps the most vexing ADA issue for employers. In June 2011, the EEOC held a public hearing on leave as a reasonable accommodation, and suggested it might issue guidance on the topic in 2011. When EEOC Commissioners were scheduled to speak at a December 2011 webinar entitled “ADA: Guidance from the EEOC,” guidance-watchers were agog since the timing was right for some hint of when this attendance guidance might be issued, and perhaps even a sneak peak at what it might say. Alas, not a single mention of this guidance during the webinar. The year ended, guidance-less.

Guidance-watchers waited with great anticipation for the EEOC’s April 25, 2012 meeting. Among the agenda items to be considered was “Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act,” a topic broad enough to encompass guidance on attendance issues. Also, for Commission Member Stuart Ishimaru, whose resignation from the Commission is effective April 30, if he were going to have an opportunity to weigh in publicly on the guidance, this was likely his last opportunity. Guidance hopes were dashed the morning of the hearing, when the EEOC’s website noted that this agenda item had been removed. Alas, no guidance, yet again. In the words of Beckett’s Estragon, “such is life.”

Employees not coming to work is something nearly all employers deal with regularly. Employers need guidance on the amount of leave they must grant disabled employees, and need assurance that they can require regular and predictable attendance, regardless of the reason for the absence.

It is unclear when, or even if, the EEOC will issue the much-needed and much-awaited guidance. Waiting for the guidance has become like waiting for Beckett’s Godot. Those waiting come to the realization at the end of each day that it is not coming today, it might come tomorrow.

Mammography Tech with Epilepsy Not Qualified under ADA and a Direct Threat of Harm

Michael Soltis — Mon, 23 Apr 2012 17:47:58 -0800

An ADAAA “rule of construction” is that an episodic impairment is a disability if it would substantially limit a major life activity when active. A Missouri federal district court has held that whether an employee with an episodic impairment is a qualified individual with a disability is also determined when the impairment is active. The court held that a mammography technician who had fourteen epileptic seizures in two years was not a qualified individual with a disability “because she could not perform the essential functions of her position while she was experiencing an uncontrolled and unpredictable seizure.” Olsen v. Capital Region Med. Ctr. (W.D. Mo. April 12, 2012).

The court also held the plaintiff was not qualified because she posed a direct threat of harm to herself and others. A “direct threat” exists when there is a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation. During seizures, the plaintiff suffered numerous injuries to herself, including cuts and abrasions, bites to her tongue and cheek and, on one occasion, an interruption of her breathing. She would lose consciousness for several minutes during a seizure.

Twice she had a seizure while conducting mammogram examinations on patients. “[I]t is not hard to imagine what harm a patient could potentially suffer if the mammography machine was in full compression and plaintiff experienced a seizure or if plaintiff were to fall on a patient while she was positioning [her] in the machine,” the court said.

In granting summary judgment to the employer on plaintiff’s disability discrimination claims, the court concluded that the defendant’s actions were not motivated by discrimination based on plaintiff’s disability but “were in response to the unpredictable and severe consequences caused by plaintiff’s seizures.”

Eternal Tribute to Deceased Ex-Employee Required in Severe Obesity ADA Case

Michael Soltis — Sun, 22 Apr 2012 09:03:21 -0800

When a 527 pound employee at a residential drug and alcohol treatment center was terminated, she filed an ADA charge with the EEOC, claiming her severe obesity was the reason. She died while her charge was pending. The EEOC sued her former employer and the parties have resolved the lawsuit with a Consent Decree. EEOC v. Res. For Human Dev. Inc. d/b/a Family House of La. (E.D. La. April 4, 2012).

The Consent Decree requires Family House to create and maintain a tribute to the ex-employee at her former workplace. Family House must “permanently name a children’s room” in her memory and “memorialize the room” with a plaque at least 9 X 12 inches in size, with the inscription specified in the Decree. The plaque must also include a color copy of the former employee’s photograph, attached to the Decree, at least 8 X 10 inches and “printed on archival quality paper.” The plaque and photograph shall state on the back that it is posted pursuant to the court’s order.

The Decree requires that Family House post the plaque and photograph for as long as Family House of La. operates the facility and, should it no longer operate the facility, the plaque and photo shall be “permanently placed” at a prominent location at its headquarters.

The Consent Decree also requires Family House to pay $125,000.

Hunter Tracked Into Woods; FMLA Claim Survives

Michael Soltis — Thu, 19 Apr 2012 18:06:51 -0800

A man walks into the woods with a gun and sits in a comfortable chair already set up in a blind. An hour earlier that Monday, 2 ½ hours into his shift, he told his employer he was in severe pain and could not perform his work duties. Because the employee’s FMLA requests tended to straddle weekends and holidays, the employer had hired a private investigator to tail him. The investigator tracked the man’s entry into the woods. The investigator had also reported observing the employee hunting one day the prior week while on FMLA leave for a strained back.

The company terminated the hunter for fraudulently claiming FMLA leave. The hunter sued, claiming interference with his FMLA rights and retaliation against him for exercising those rights. He denied abusing FMLA and hunting after he left work that Monday. Turner v. Parker-Hannifin Corp. (W.D. MI, April 12, 2012).

The hunter survived his employer’s motion for summary judgment. The court said that the investigator’s report did not indicate whether the hunter’s activities were inconsistent with his doctor’s restrictions that he not bend, twist or lift heavy objects. “The determination of whether it was reasonable for the Company to simply equate hunting with the ability to work without considering what was involved in either activity is a question of fact” for the jury, the court said.

Regular Attendance is Essential Function of ICU Nurse Post; Request for Unlimited Absences Unreasonable

Michael Soltis — Thu, 12 Apr 2012 03:48:53 -0800

Whether and to what extent attendance is an essential job function is perhaps the most vexing ADA issue. In Samper v. Providence St. Vincent Medical Center (9th Cir April 11, 2012), the plaintiff, an ICU neo-natal nurse with fibromyalgia, asked to “opt out” of the employer’s unplanned absence policy as an accommodation.

In a remarkably refreshing opinion likely to be cited regularly for its analysis of whether regular attendance is an essential function, the Ninth Circuit affirmed summary judgment for the hospital, noting that plaintiff’s job “unites the trinity of requirements that make regular on-site presence necessary for regular performance: teamwork, face-to-face interaction with patients and their families, and working with medical equipment.”

Applying the Supreme Court’s infrequently applied US Airways, Inc. v Barnett analysis, the Court stated that plaintiff’s request to “miss work whenever she felt she needed to and apparently for so long as she felt she needed to” is “not reasonable on its face.” The hospital “was under no obligation to give [plaintiff] a free pass for every unplanned absence,” the Court said. Her request would exempt her from an essential function and “would gut reasonable attendance policies,” the Court noted, adding that in a hospital, such an accommodation could “quite literally, be fatal.”

The Worst Case Scenario: Discussing Performance and FMLA Leave at the Same Time

Michael Soltis — Fri, 06 Apr 2012 03:47:07 -0800

Worst v. Glynn County School District (S.D. Ga. March 29, 2012) reminds employers that the best case scenario is to avoid connecting performance issues and leave. Worst, a third grade teacher, told her principal she would need leave for surgery beginning a month hence. Before Worst’s leave began, her principal spoke with her about her performance and told her that she would be placed on a performance development plan (PDP) when she returned from leave.

When Worst returned, the principal instituted the PDP, which Worst considered to be “intense scrutiny.” When her request to transfer to another school was denied, Worst resigned and brought FMLA interference and retaliation claims, including a constructive discharge claim.

The court granted summary judgment to the school district on all claims except the FMLA retaliation claim. The court held that implementing the PDP was an adverse action and that there were issues of fact concerning whether her behavior and performance were the real reasons for the PDP. These factual issues arose from both the “temporal proximity” between the onset of the PDP process and Worst’s leave, and the multiple instances where medical leave was discussed in conjunction with the PDP.

These instances, or “documented connections,” included: a letter from Worst’s principal stating “It is my hope that when you return to work after medical leave that you will be able to rectify the aforementioned concerns”; an email from the principal stating “[Worst] is having yet another surgery and will be out for 6 weeks….When she returns, I am going to put her on a PDP….”; a letter to Worst in response to her transfer request which notes that “[w]e sincerely hope that your health will improve, but missing 24.5 of the current 76 days of schools (sic), we are very concerned about the education of the ... students.”

While the school still may prevail at trial, since these “documented connections” were one of the reasons summary judgment was denied, eschewing them is best to avoid the Worst case scenario.

Gimme Shelter--and Summary Judgment--in the ADA 501(c) "Safe Harbor"

Michael Soltis — Sun, 01 Apr 2012 14:16:41 -0800

When dealing with ADA claims relating to benefit plans, make sure to plot the coordinates for the ADA’s Section 501(c) “safe harbor.” Sections 501(c)(2) and (3) protect employers from liability for conduct that would otherwise violate the ADA if it were taken pursuant to an insured or self-insured benefit plan so long as the plan is not “a subterfuge to evade the purposes of the ADA.”

Some courts have relied on the “safe harbor” to reach favorable results for employers. As we reported previously, a district court granted summary judgment to Broward County, FL, upholding the County's $20 bi-weekly surcharge for employees who did not participate in a "voluntary" wellness program requiring biometric testing for glucose and cholesterol, and completion of a health risk assessment. Seff v. Broward County. Also, a Minnesota district court granted summary judgment to an employer who had terminated an employee for failing to answer health history questions requested by the employer’s insurance broker. Barnes v. Benham Group, Inc.

A plaintiff invariably argues that the purported “safe harbor” is merely a “subterfuge” to evade the purposes of the ADA. The EEOC argues that if a benefit plan contains disability-based distinctions, the plan is a subterfuge unless the sponsor can establish that the distinction is justified by cost justifications and/or risk classification, such as such as age, occupation, personal habits (e.g., smoking), and medical history.

A federal district court has reiterated the rejection of the EEOC’s “subterfuge” analysis. In granting summary judgment on a claim brought by a paraplegic employee who was denied standard coverage for long term care insurance, the court noted that “[t]he D.C. Circuit and every other circuit to have considered the issue have rejected the contention that the ADA safe harbor provision applies only to plans with terms that are actuarially justified.” Instead, the court said, “subterfuge” must be given “its ordinary meaning as ‘a scheme, plan, stratagem, or artifice of evasion.’’ (citation omitted. Rouse v. Berry (March 24, 2012). To establish “subterfuge,” a plaintiff must establish the “actual intent to use the terms of the benefit plan as a means of discriminating against a disabled individual in protected aspects of employment,” the court added.

U.S. Supreme Court Sharply Divided On FMLA Application to States: Two Decisions, Ten Opinions, One Constitutional Thicket

Michael Soltis — Sun, 25 Mar 2012 08:12:59 -0800

On the issue of whether states, as employers, may be liable for damages for violating the FMLA, it is fair to say that the U.S. Supreme Court lacks a consensus. On March 20, 2012, the Court said states cannot be sued for damages for violating the self-care provisions of the FMLA, i.e., those provisions dealing with an employee’s own serious health condition. Coleman v Court of Appeals of Maryland. That decision has five opinions: four justices joined the plurality opinion; two wrote concurring opinions; two dissented; and two justices joined in not quite all of that dissent.

In 2003, the Supreme Court said states may be sued for damages for violating the family leave provisions of the FMLA. Nevada Dept of Human Resources v. Hibbs, 538 U.S. 721 (2003). That decision has five opinions as well: five justices joined the majority opinion; three joined in a concurring opinion; one wrote a separate concurring opinion; three joined in a dissent; one justice filed a separate dissent.

The different outcomes are due to the Court’s evaluation of whether Congress had the authority to abrogate states’ sovereign immunity from suits for damages. Congress may abrogate that immunity to remedy or prevent state conduct which violates the equal protection clause of the Fourteenth Amendment.

In Coleman, the Court held that Congress could not abrogate State immunity for suits for damages under the self-care provision of the FMLA because “[t]here is nothing in particular about self-care leave, as opposed to leave for any personal reason, that connects it to gender discrimination.”

In Hibbs, the majority held that Congress appropriately abrogated states’ sovereign immunity because Congress had evidence that states had family leave policies that differentiated on the basis of sex and administered neutral family leave policies in ways that discriminated on the basis of sex.

An unresolved issue in Coleman is whether a plaintiff may sue a state for an FMLA violation and obtain injunctive relief. Two dissenters stated that since the FMLA was also an exericise of Congressional authority under the Commerce Clause, a plaintiff may obtain equitable relief, even if not money damages.

Flexible Work Schedule for All: Greater Challenge or Greater Profits?

Michael Soltis — Mon, 12 Mar 2012 07:49:13 -0800

Employers challenged with scheduling modifications due to reasonable accommodation requests under the ADA, intermittent leave requests under the FMLA, and paid sick leave requests in some jurisdictions, but looking to increase their profitability, might want to keep an eye on H.R. 4106, the Working Families Flexibility Act (WFFA).

Introduced in the House of Representatives on February 29, 2012, WFFA gives employees the right to make an annual request to change his or her work schedule (both number of hours and work times), where the employee works, and the amount of notice an employee receives of work assignments. The employee does not need to give the employer any reason to justify the request.

While the bill imposes what appears to be the benign obligation that an employer merely “consider” such requests, the bill includes procedural requirements for that consideration process, akin to the interactive dialogue under the ADA, and penalties for interfering with, restraining or denying the exercise of rights under the law, or discriminating or retaliating against an individual who has exercised rights under the law.

According to the bill, giving employees the right to request changes in their work hours, times and place will improve the employer’s business. One of the bill’s “findings” states that flexible work arrangements “improve the bottom line” for businesses “by helping businesses to attract and retain key talent, increase employee retention and reduce turnover, reduce overtime and absenteeism and enhance employee productivity, effectiveness, and engagement.”

While flexible work schedules may be practical in some workforces, some employers struggling to manage schedules under FMLA, ADA, and PTO or sick leave policies may see this as adding to that challenge.

Last Word on Accommodation of Last Resort Yet To Be Spoken

Michael Soltis — Sat, 10 Mar 2012 05:02:55 -0800

When an employee cannot perform the essential functions of his or her position, with or without an accommodation, due to a disability, an employer must consider “the accommodation of last resort”—transfer to a vacant lateral or lower position for which the employee is qualified.

The circuit courts have split on whether an individual with a disability is entitled to that vacant position or must compete for it. The Tenth and D.C. Circuits have held that an individual is entitled to it. The Seventh and Eighth Circuits have held an employer may require the disabled employee to compete for it. In 2007, the United States Supreme Court agreed to review an Eighth Circuit decision on the issue, but the Court dismissed the case when the parties settled their dispute. Huber v. Wal-Mart (8th Cir.2007).

In 2009, the EEOC sued United Airlines over its policy which required individuals with a disability to compete for a vacant position. Likely seeking a favorable venue and perhaps to avoid Seventh Circuit precedent, the EEOC sued in San Francisco but that court granted United’s motion for a change of venue to Illinois. The EEOC urged the Seventh Circuit to reverse its position. Rejecting the EEOC’s argument, the Seventh Circuit panel reiterated, yet again, that a policy requiring a disabled employee to compete for a vacant position does not violate the ADA, but urged the EEOC to request an en banc review. EEOC v. United Airlines, Inc. (7th Cir. 3/7/12).

Eventually, this issue will percolate up to the Supreme Court again. Until then, circuit matters.

Employee With Migraines Not Disabled--There's Hope for the "Coverage" Obsessors!

Michael Soltis — Tue, 06 Mar 2012 18:44:21 -0800

In 2011, an EEOC Commissioner noted that one aim of the ADAAA was to have the parties “stop obsessing about coverage”, i.e., about who is “disabled,” and move to the merits of the substantive claim.

A Tenth Circuit decision suggests that there is still value in obsessing about ADA coverage. In Allen v. SouthCrest Hospital (10th Cir. 12/21/11), a medical assistant claimed her migraine headaches substantially limited her ability to care for herself and to work. Her employer argued that she was not disabled and the court agreed.

The plaintiff had claimed that she would “crash and burn” when she got home from work with a headache by taking medication and going to sleep, rather than caring for herself. Rejecting this argument, the court held that plaintiff did not present any evidence about how her need to “crash and burn” compared to the average person’s ability to care for herself after work or that will permit a comparison of the effects of her sleep disturbance to those experienced by the average person.

Also, since plaintiff said her migraines only affected her ability to do her job for one doctor, the court rejected her claim that she was substantially limited in working because her impairment did not prevent her from working in a class or broad range of jobs.

Who Cares? A Son Deciding Whether to Remove His Mother From Life Support Cares

Michael Soltis — Tue, 21 Feb 2012 19:58:40 -0800

Courts have struggled to determine who “cares for” a covered family member under the FMLA and who seeks leave for compassionate reasons which fall short of the “caring for requirement. See, e.g., Who Cares, Where? ; Who Cares? And Who Merely Assists Under the FMLA? The Sixth Circuit has held that an employee who sought leave to go to the hospital to decide with his sister whether his mother should continue on life support was “caring for” his mother under the FMLA. The Court cited the FMLA regulation which states that family members are entitled to leave “to make arrangements for changes in care….” Romans v. Michigan Dep’t of Human Services (6th Cir. February 16, 2012).

In reversing summary judgment for the employer, the Court also rejected the district court’s holding that because plaintiff’s sister was at the hospital caring for the mother, the plaintiff was not entitled to FMLA leave as well. The Court stated that "[t]o be sure, [deciding whether to remove the mother from life support] is the kind of decision…that few people would relish making without the help of other family members, and the regulations do not force them to do so.”

Terminated Employee Who Made Pre-Eligibility Request for Post-Eligibility Leave May Pursue FMLA Interference and Retaliation Claims; Court Rejects FMLA Loophole

Michael Soltis — Tue, 24 Jan 2012 18:25:14 -0800

A terminated employee who had made a “pre-eligibility request” for a ”post-eligibility leave” can pursue FMLA interference and retaliation claims, according to the United States Court of Appeals for the Eleventh Circuit. The Court reversed the district court decision, which had dismissed both claims because the plaintiff was not FMLA-eligible at the time of her termination. Pereda v. Brookdale Senior Living Communities, Inc., (1/10/12).

Eight months into her employment, the plaintiff told her employer she was pregnant and would need FMLA leave for her child’s birth, which would occur after she had met the FMLA eligibility requirements. The employer discharged plaintiff before she had completed 12 months of employment.

The Eleventh Circuit held that because the FMLA requires notice prior to leave, employees are protected from interference prior to the occurrence of the triggering event such as the birth of a child. If it were to hold otherwise, the Court said, the advanced notice requirement “becomes a trap for newer employees.” The court added that because “ a full term pregnancy takes nine months to complete, not affording pre-eligible expecting parents any protection would leave them exposed to adverse action by their employer.”

The Court also held that a pre-eligible request for post-eligible leave is protected activity sufficient to support an FMLA retaliation claim. Quoting an Oklahoma federal district court decision, the Court noted that “if courts were to read the FMLA to allow employers to dismiss ineligible employees who give advance notice of their need for FMLA leave, it would open a large loophole in the law…”

FMLA Claim Must Be Arbitrated Due to Union Contract Waiver of Judicial Forum

Michael Soltis — Sun, 22 Jan 2012 17:09:17 -0800

An employee must arbitrate his FMLA claim where the labor contract governing his employment waived his right to pursue employment claims in court, according to the United States Court of Appeals for the Eighth Circuit. Thompson v. Air Transport Int’l LLC (12/28/11). The Court relied on the Supreme Court’s 2009 decision in 14 Penn Plaza LLC v. Pyett, which held that a mandatory arbitration clause in a labor contract required an employee to arbitrate his age discrimination claim.

"Severe Obesity" is a Disability Under the ADA, Federal District Court Rules

Michael Soltis — Mon, 16 Jan 2012 06:25:57 -0800

“Severe obesity” is a disability under the ADA and a plaintiff need not prove an underlying physiological basis for it, according to a Louisiana federal court. The court denied the employer’s motion for summary judgment. EEOC v. Resources for Human Dev., E.D. La., 12/7/11).

Noting that there is no federal law prohibiting discrimination based on obesity, the court reviewed decisions by courts of appeals which had previously considered whether obesity is a disability under federal laws prohibiting discrimination on the basis of a disability. The Second and Sixth Circuits had held in ADA cases that morbid obesity was not an impairment, and thus not a disability under the ADA, except where the obesity related to a physiological disorder. The First Circuit had held in a Rehabilitation Act case that morbid obesity was a physical impairment.

The plaintiff oversaw a day care program for children. When hired, she weighed more than 400 pounds; when terminated eight years later, she weighed 527 pounds. She died while her discrimination charge was pending; the EEOC filed this suit on behalf of her estate.

Exacerbation, Causation and Retaliation under the FMLA

Michael Soltis — Wed, 09 Nov 2011 09:23:32 -0800

Whether a supervisor mistreated the plaintiff after he returned from his second leave of absence, causing him to need a third leave, is irrelevant to his FMLA retaliation claim because “[e]xacerbation is not a valid theory of liability under the FMLA” according to the Seventh Circuit. Breneisen, Jr. and Lineweaver v. Motorola, Inc. (7th Cir. Sept. 2, 2011). The cause of a medical condition is irrelevant to whether an employee is entitled to FMLA leave, the court added.

The employee had exhausted his FMLA leave and had been granted a second leave for five months. The plaintiff alleged that when he returned, hissupervisor’s mistreatment caused him stress, high blood pressure and stomach reflux, requiring him to take a third leave from which he never returned, which led to his losing his job.

The court rejected plaintiff’s claim, holding that the FMLA does not recognize “an exacerbation theory,” and that if an employee cannot work due to a serious health condition after exhausting FMLA leave, the FMLA no longer applies, regardless of the cause of the infirmity.

The plaintiff’s argument seems to be an attempt to juxtapose the standard for an employee to receive workers compensation benefits, i.e., has suffered an illness or injury out of or in the course of employment, onto the FMLA. Because the medical condition causing the need for leave arose out of or in the course of my employment, the plaintiff’s argument would go, the plaintiff is entitled to even more than 12 weeks of FMLA leave if necessary. The court’s rejection of this argument removes the negligence concepts of “cause” and “exacerbation” from FMLA analysis, at least in determining the amount of FMLA to which an employee is entitled.

Swine Flu Snafu: ADA Claim Dismissed, Even if Plaintiff Had Swine Flu

Michael Soltis — Wed, 21 Sep 2011 16:51:16 -0800

A plaintiff who thought she had the swine flu, and thought she had an ADA claim when she was terminated after four days of absence for the flu, had neither. Lewis v. Florida Default Law Group,P.L. (M.D. FL Sept. 15, 2011).

The plaintiff was diagnosed with “seasonal flu” but “understood” she was diagnosed with the H1NI virus, the swine flu. Her doctor testified that he never diagnosed her with H1N1. When she returned to work after the four days, the company terminated her because her absences were “just too much.” She had “substantial attendance issues” prior to these four days, according to the court.

The plaintiff claimed she was terminated because she had or was perceived as having been infected with the H1N1 virus. The court rejected plaintiff’s claim that her flu, whether seasonal or swine, was an actual disability, noting that even if her symptoms were impairments, they were of short duration and, as a result, did not substantially limit any major life activity.

The court also dismissed her “regarded as” claim because her impairments were transitory and minor. The symptoms of the 2009 H1N1 virus included fever, cough, sore throat, runny or stuffy nose, body aches, headache, chills, fatigue and, for some, vomiting and diarrhea, “specifically the type of impairments that the ‘transitory and minor’ exception’ was intended to cover,” the court added.

Whether particular flu strains are disabilities under the ADA has been an intriguing issue since the avian and swine flu outbreaks a few years ago. The Lewis case is one of the few decisions to do this analysis.

Second Circuit Applies Title VII Retaliation Standard to FMLA Retaliation Claims

Michael Soltis — Mon, 19 Sep 2011 03:33:06 -0800

Add the Second Circuit to the chorus of circuits to apply the Supreme Court’s standard for Title VII retaliation claims to FMLA retaliation claims as well. In its 2006 Burlington Northern & Santa Fe Railroad Co v. White decision, the Supreme Court expanded the definition of “materially adverse employment action” for purposes of Title VII retaliation. The Supreme Court held that such an action is one that well might have dissuaded a reasonable employee from making or supporting a charge of discrimination. In Millea v. Metro North R.R. Co., the Second Circuit held that this same “materially adverse” standard applies to FMLA retaliation claims, citing similar determinations by the 3rd, 4th, 5th, 7th and 10th Circuits.

The Burlington Northern standard is a much broader standard, more favorable to plaintiffs, than the definition of “adverse employment action” applicable in non-retaliation cases. This expanded definition has contributed to an increasing number of retaliation charges. During the EEOC’s most recent fiscal year, more than one third of all charges filed with the agency included a retaliation claim.

Testing Protocol for Lawful Drugs Illegal ADA Exam and Inquiry

Michael Soltis — Mon, 12 Sep 2011 15:40:41 -0800

A drug testing protocol for both legal and illegal drugs was an unlawful medical examination, and the follow up questions about lawful drug use were unlawful disability-related inquiries, according to a federal district court in Tennessee. Bates v. Dura Automotive Systems, Inc., (Aug. 29, 2011). The court rejected the company’s motion to set aside a jury verdict for the plaintiffs. The jury had found that the examination and inquiries were not “job-related and consistent with business necessity,” as required by the ADA.

Rejecting Dura’s arguments that the punitive damage award should be set aside, the court cited testimony that “the most likely explanation” for the policy was that the company “was attempting to ‘run off’ older employees with higher medical and prescription drug costs;” that the company refused to consider individual circumstances or medical authorizations stating that the plaintiff could work safely while on the prescription medications; and that a plaintiff who failed the initial panel test was allowed to continue working on an important project but was terminated after failing a random test following completion of the project.

A test to determine the illegal use of drugs is not a medical examination under the ADA and inquiries concerning current use of illegal drugs are not unlawful inquiries. An employer who ventures beyond the “illegal use” parameter must establish that its examinations and inquiries are “job related and consistent with business necessity.” An employer should ensure its drug testing protocol tests for illegal drugs only and that its drug testing vendor is following that protocol.

Rotating Assignments as an Essential Job Function under the ADA: The Cases of the Acrophobic Bridge Worker and Incontinent Court Reporter

Michael Soltis — Sun, 11 Sep 2011 05:21:26 -0800

Recall the incontinent court reporter. She had a steady assignment compatible with her medical condition until the chief judge required court reporters to rotate through all courtrooms. In the lawsuit challenging the court reporter’s termination, the court held that rotating was an essential function of the court reporter’s job and because she could not do this with or without an accommodation, she was not a qualified individual with a disability. Gratzl v. Office of the Chief Judges of the 12th, 18th, 19th and 22nd Judicial Circuits (April 7, 2010).

Now consider the bridge worker for the Illinois Department of Transportation, Miller, who developed acrophobia, or fear of heights. Bridge workers have various responsibilities, some of which are performed at significant heights. Initially, the employer allowed other members of his team to do the bridge work at heights. Assigned to change a bulb while standing on a bridge beam wearing a lifeline, Miller had a panic attack. IDOT denied his request that he be excused from working on bridge beams and other extreme places over 20-25 feet. When discharged for an unrelated reason, Miller sued, claiming that IDOT failed to accommodate his disability. The district court granted IDOT’s motion for summary judgment, holding that working at heights above 25 feet was an essential function of Miller’s job. The Seventh Circuit reversed and remanded the case for trial. Miller v. Illinois Dep’t of Transportation (May 10, 2011).

Why did the acrophobic bridge worker fare better than the incontinent court reporter? The key is how work was assigned. The court required all court reporters to rotate through all positions and the ability to do so was an essential function. But the bridge workers worked as a team, reassigning tasks among themselves according to abilities, preferences, and limitations. The court held that a reasonable jury could conclude that while some members of the bridge crew needed to be able to work at heights in exposed or extreme positions so that that bridge crew—as a unit—could do its job, each member of the bridge crew did not have to be able to do every task.

The message from this case is clear: if an employer believes that an employee’s ability to do all of the tasks involved in a position is essential, the employer should communicate this requirement, and then enforce it. Conversely, if employees work as a team, it may not be essential that each member of the team be able to perform each assignment.