Tag Archives: ADA

Is Attendance An Essential Function Of The Job?

In E.E.O.C. v. Ford Motor Co., 2014 WL 1584674 (6th Cir. 2014), the Sixth Circuit Court of Appeals weighed on the issue of essential functions of a job under the American Disabilities Act.  Specifically, whether physical presence was one of these.  The Sixth Circuit remanded the summary judgment decision because it found that there is a genuine issue of whether this was the case.  The Court noted that courts should consider that while physical presence is required for some jobs, it is not required for all positions.

In this case, the plaintiff suffered of irritable bowel syndrome, which often made her unable to control her bowel. The plaintiff requested accommodations by allowing to telecommute. Since this was denied, the plaintiff had to take FMLA leave, which caused her to miss work and her work suffered.  Consequently, she was terminated.

It reasoned:

When we first developed the principle that attendance is an essential requirement of most jobs, technology was such that the workplace and an employer’s brick-and-mortar location were synonymous. However, as technology has advanced in the intervening decades, and an ever-greater number of employers and employees utilize remote work arrangements, attendance at the workplace can no longer be assumed to mean attendance at the employer’s physical location. Instead, the law must respond to the advance of technology in the employment context, as it has in other areas of modern life, and recognize that the “workplace” is anywhere that an employee can perform her job duties. Thus, the vital question in this case is not whether “attendance” was an essential job function for a resale buyer, but whether physical presence at the Ford facilities was truly essential. Determining whether physical presence is essential to a particular job is a “highly fact specific” question.

Id. at *6 (emphasis added).

The reach of the opinion is unclear.  The Court also noted:

It is important, at this juncture, to clarify that we are not rejecting the long line of precedent recognizing predictable attendance as an essential function of most jobs. Nor are we claiming that, because technology has advanced, most modern jobs are amenable to remote work arrangements. As we discussed above, many jobs continue to require physical presence because the employee must interact directly with people or objects at the worksite. See, e.g., Melange, 482 F. App’x at 84 (custodian). We are merely recognizing that, given the state of modern technology, it is no longer the case that jobs suitable for telecommuting are “extraordinary” or “unusual.” Vande Zande, 44 F.3d at 545; Smith, 129 F.3d at 867–68. When we decided Smith in 1997, we responded to the world as it then existed; however, in the intervening years, communications technology has advanced to the point that it is no longer an “unusual case where an employee can effectively perform all work-related duties from home.”

Id. at *11 (emphasis added).

This decision is interesting in many different levels.  First, the use of technology is being considered as a reasonable accommodation. Second, it adds to the trail of cases focusing on electronic communications.

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AMA declares obesity a disease

The American Medical Association (AMA) declared that obesity is a disease and not a condition.  AMA board member Patrice Harris stated in a statement,

Recognizing obesity as a disease will help change the way the medical community tackles this complex issue.

As background, the U.S. has been consistently rated as No. 1 in obesity.  Recently, Mexico took the No. 1 spot and the U.S. moved to No. 2.  See Huffington article, Mexico Obesity Rate Surpasses The United States (July 9, 2013).  Mexico was reported to have 32.8% obesity rate while the U.S. has a rate of 31.8%.

This new definition may have an unknown impact in disability claims.  The ABA Journal reports:

Although the AMA’s action was intended to affect medical treatment for the obese, “there’s a high probability it will make it easier for an obese employee to argue that he or she is disabled,” said partner Myra Creighton of Fisher & Phillips.

“It may be easier for employees to prove disability discrimination,” Creighton, who represents employers, told the newspaper. “And, if classified as a disease, it will be difficult for employers to argue that any level of obesity is not an impairment.”

The EmploymentEmployment Opportunity Commission (EEOC) has previously defined a “morbid” obese individual as disabled.  Seee.g.JD Supra, Morbid Obesity as a Covered Disability under the ADA (July 30, 2012)EEOC Press Release (July 24, 2012); EEOC Press Release (Apr. 10, 2012), EEOC Press Release (Sept. 27, 2011).

It would be interesting to see if the EEOC will change its definition of obesity as a disability.

via Obesity is a disease, AMA says, aiding weight-related disability claims – ABA Journal.

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EEOC’s First GINA Suit Settlement

The first settlement between the EEOC and an employer over GINA is important because it brings attention to this relatively new law.  EEOC charges alleging GINA violations have increased each year.  Consequently, it is important for employers to ensure their policies and procedures are compliant with GINA procedures.

The Genetic Information Nondiscrimination Act (GINA) went into effect in 2009.  Some of GINA’s regulations are as follows.

  • It is illegal for employers to discriminate against employees or applicants based on their genetic information.
  • Employers cannot request or obtain genetic information, which includes any information about an employee or an applicant’s family history.
  • GINA also applies to third parties.  So, employers cannot request or obtain family medical history, even through a third-party medical provider or examiner.
  • There are exceptions for voluntary health risk assessments.  However, if the employee is receiving an incentive for completion of the Health Risk Assessment, the employer must make clear that an employee need not answer any of the questions about family medical history in order to obtain the incentive.

On May 7, 2013, the U.S. Equal Employment Opportunity Commission (“EEOC”) reached a milestone of sorts as it filed – and then settled – its first complaint ever alleging genetic discrimination under the Genetic Information Nondiscrimination Act of 2008 (“GINA”).

The EEOC filed suit in Oklahoma federal court against Fabricut Inc., one of the world’s largest distributors of decorative fabrics, alleging that Fabricut violated GINA and the Americans With Disabilities Act (“ADA”) by unlawfully asking a job applicant for her family medical history in a pre-employment, post-job offer medical examination, and allegedly rescinding her job offer based on the belief that she had carpal tunnel syndrome.

The EEOC and Fabricut reached a settlement, which is the first settlement in a GINA case.  In the consent decree, Fabricut agreed to pay $50,000 but did not admit to violating GINA or the ADA.

via EEOC’s First GINA Suit Serves As Reminder of Pre-Employment Exam Pitfall | Proskauer Rose LLP – JDSupra.

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DOL clarifies expansion of FMLA due to ADAAA

The DOL published Administrator’s Interpretation No. 2013-1, which clarifies the expansion of FMLA.  The DOL explained that the ADA Amendments Act (“ADAAA”) expanded more than just employer liability for disability claims, but also expanded the scope of FMLA coverage for children.

The DOL clarified the following.

  • The DOL adopted the ADA’s definition of disability to define “mental or physical disability” for purposes of defining a son or daughter 18 years or older.  See 58 Fed. Reg. 31794, 31799 (June 4, 1993).  The 2008 FMLA Final Rule explicitly adopts the ADAAA’s changes to the ADA’s definition of disability;
  • The definition of a “son or daughter” is defined by the definition of a disability under the ADAAA, which “shall be construed in favor of broad coverage;”
  • The determination of whether an adult son or daughter is incapable of self-care under the FMLA focuses on whether the individual currently needs active assistance or supervision in performing three or more activities of daily living (or ADLs) including “grooming, hygiene, bathing, dressing and eating;” or instrumental activities of daily living (or IADLs) including “cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, using telephones, and using a post-office, etc.;”
  • A serious health condition is an illness, injury impairment, or physical or mental condition that involves inpatient care or continuing treatment by a healthcare provider; and
  • For a parent to take FMLA leave to care for an adult son or daughter, the parent must be “needed to care” for that son or daughter due to the serious health condition.

In the Administrative opinion, the DOL provides examples.

via Department of Labor Clarifies When an Employee May Take FMLA Leave to Care for Adult Children | Orrick – Global Employment Law Group – JDSupra.

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FMLA and Adult Children?

On January 14, 2013, The Department of Labor issued a new interpretation that clarifies its position on the ability of employees to take leave under the FMLA to care for an adult child who has a disabling medical condition.  You can read the DOL’s guidance for adult children here.

The FMLA allows employees to take leave to care for a son or daughter with a serious health condition.  However, the scope of allowable leave narrows once an employee’s son or daughter reaches 18 years old.  At that point, a parent is entitled to take FMLA leave when all four of the following occur:

(1) the adult child has a disability as defined by the ADA;

(2) the child is incapable of self-care due to that disability;

(3) the child has a serious health condition; and

(4) the child is in need of care due to the serious health condition.

Prior to this interpretation, there was some question as to whether the adult child’s disability must have developed before the child reached 18 years of age for the parent to be eligible for FMLA leave.  The Department of Labor has now clarified that the age of onset of the disability is immaterial so long as the child at issue has a disability under the ADA.

This interpretation reflects the impact of the ADAAA’s expansion of the definition of “disability” on the FMLA and will enable more parents to take FMLA-protected leave to care for their adult sons and daughters with disabilities.

via New Department of Labor Interpretation on FMLA Leave for Adult Children | Baker, Donelson, Bearman, Caldwell & Berkowitz, PC – JDSupra.

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Who is a “supervisor” in a sexual harassment case? Supreme Court will decide

On November 26th, the Supreme Court will hear arguments in the case Vance v. Ball State University (11-556) coming from the 7th Circuit.  The issue in this case centers around the word “supervisor.”

In Faragher/Ellerth, as decided by the Supreme Court, the Court stated there is vicarious liability when the sexual harasser is the victim’s supervisor.  In other words, if the harasser is the supervisor, the employer is immediately liable unless two exceptions (described in Faragher/Ellerth) are met.

The issued posited to the Supreme Court is whether the supervisor liability rule is limited to those who have the authority to direct and oversee the victim’s daily work, or limited to those who have the power to hire, fire, demote, promote, transfer or discipline.

What’s so interesting about this case, you may ask?  The fact that courts all throughout the US are split on this definition.  Will this definition be broadly construed, narrowly construed?  If so, what would the consequences be of this decision.  Will sexual harassment claims be significantly reduced?  Will attorneys think of these claims as incredibly risky, and be less likely to pursue these claims?

As it is, civil rights have traditionally been limited.  The purpose of Title VII is to be broadly construed in order to provide civil rights protection.  The purpose of Title VII appears to be eaten away slowly.  It really does remind me of ADA before Congress enacted the ADAA.

In the ADA situation, Courts continuously narrowed the definitions and limited the extent to which a disability was covered by the Act.  Under the ADA, a disability was not covered if medical treatment reduced its impairment whereby the impairment was no longer significant.  When the ADAA was passed, Congress sternly pointed out to the extent the Courts had gone out of their way to prevent coverage under the Act for disabilities. In the ADAA, Congress specifically pointed to Supreme Court cases narrowing coverage under the Act.

Is it time for Congress to act once again?

via Vance v. Ball State University : SCOTUSblog.

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EEOC Guidance on Title VII, the ADA, and Domestic Violence, Sexual Assault, Stalking

The EEOC has issued a new fact sheet explaining how employment decisions related to employees who are victims of domestic violence, sexual violence, or stalking might violate Title VII or the ADA. From the fact sheet:

Because [Title VII and the ADA] do not prohibit discrimination against applicants or employees who experience domestic or dating violence, sexual assault, or stalking as such, potential employment discrimination and retaliation against these individuals may be overlooked.  The examples provided in this publication illustrate how Title VII and the ADA may apply to employment situations involving applicants and employees who experience domestic or dating violence, sexual assault, or stalking.

The examples cover ways that treating victims in a particular way might constitute either disparate treatment, disparate impact, or retaliation. It’s a good summary.

via Workplace Prof Blog: EEOC Guidance on Title VII, the ADA, and Domestic Violence, Sexual Assault, Stalking.

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No Fault Attendance Policies

A nationwide class disability lawsuit against telecommunications giant Verizon Communications has been settled for $20 million and significant equitable relief, the U.S. Equal Employment Opportunity Commission (EEOC) was no doubt happy to announce today – it’s the largest single disability bias settlement in the agency’s history. The EEOC filed suit against 24 named subsidiaries of Verizon Communications, alleging the company unlawfully denied reasonable accommodations to hundreds of employees and disciplined and/or fired them pursuant to Verizon’s “no fault” attendance plans.

via Verizon will pay $20 million to settle EEOC nationwide disability bias suit over inflexible attendance policy | Employment Law Daily.

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EEOC on GINA and ADA

Maintaining employees’ personal and occupational health information in a single electronic medical record (EMR), particularly one that permits individuals with access to the EMR to view any information in the record, “presents a real possibility” that the ADA or the Genetic Information Nondiscrimination Act (GINA), or both, will be violated, according to an EEOC informal discussion letter released on June 30, 2011.

An agency letter, dated May 31, 2011, and signed by EEOC Legal Counsel Peggy R. Mastroianni, addresses two issues:

1. whether an employer or its agent should have access to an employee’s personal health information without the employee’s consent; and

2. the manner in which employers must safeguard employees’ medical information.

Title I of the ADA and Title II of the GINA both limit employer access to medical information. The letter provides a roadmap to when personal health information about applicants or employees may be accessed, regardless of whether an employer or an occupational health provider maintains information in paper or electronic files.

via Keeping employees’ personal and occupational health information in one file poses risk of ADA and GINA violations, EEOC letter warns | Employment Law Daily.

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