Articles Posted in Disability

What could possibly go wrong with a sham workplace investigation?

August 16, 2013 | by Eric B. Meyer

Well, if it means that the employee diagnosed with anxiety and depression — the one who requested a reasonable accommodation to perform her job — gets fired. Well, then, a lot.

That’s basically what happened in this recent federal court case out of Kentucky.

You see, normally, a court won’t second guess an employer’s decision to terminate an alleged sexual harasser, following a complaint and investigation. And when the alleged sexual harasser later sues the employer for retaliation, well, I don’t care if she belongs to every protected class on the EEOC’s checklist, court’s tend not to sympathize with sexual harassers.

When it comes to ADA accommodations, reasonable is good enough

August 15, 2013 | by Eric B. Meyer

Under the Americans with Disabilities Act, an employer must make reasonable accommodation to the known physical or mental limitations of an individual unless the employer can show that doing so how cause it undue hardship.

Generally, an employee will initiate the process by advising her employer that she is disabled and needs an accommodation to perform the essential functions of her job. What then ensues is an interactive dialogue in which both sides work together in good faith to decide on what that accommodation may be.

But here’s the rub:

It’s THIS easy to be considered disabled under the ADA

August 7, 2013 | by Eric B. Meyer

When the Americans with Disabilities Act Amendments Act went into effect in 2009, it significantly lowered the bar for proving a “disability.”

How low did it go?

[cue ironic music, you’ll see in a sec…]

An employee who sleeps on the job may still be qualified under the ADA

July 30, 2013 | by Eric B. Meyer

That George Costanza was definitely on to something.

A federal court in Virginia (here) recently denied an employer’s attempt to dismiss the complaint of a former employee who claimed that his rights under the Americans with Disabilities Act were violated when his employer failed to accommodate him by waking him when he fell asleep on the job.

The ADA requires that an employer accommodate a disabled employee, if doing so will not cause undue burden to the employer, but will still allow the employee to perform the essential functions of his job.

Obesity as a workplace disability? One court bucks the trend and says no.

July 10, 2013 | by Eric B. Meyer

In mid-June, the American Medical Association concluded that obesity is a disease “requiring a range of medical interventions to advance obesity treatment and prevention.” This news led Jon Hyman at the Ohio Employer’s Law Blog to conclude that classification of obesity as a “disease” has huge employment law implications; namely, that under the Americans with Disabilities Act, employers would have to consider allowing for reasonable accommodations for obese employees. Indeed, even before the AMA guidance, a Louisiana court determined that morbid obesity was a disability under the ADA, thus requiring reasonable accommodation.

Well, last month, a state court in West Virginia concluded otherwise. More on this decision and its impact on employers after the jump…

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The ADA way to require psych counseling for an employee

June 18, 2013 | by Eric B. Meyer

The Americans with Disabilities Act (ADA) limits when an employer can require an employee to take a medical examination. Specifically, the ADA forbids employers from requiring medical exams (and cannot otherwise inquire into the nature or severity of a disability) unless the exam or inquiry is shown to be “job-related and consistent with business necessity.”

The U.S. Equal Employment Opportunity Commission (EEOC) advises (here) that an exam is permissible where the employer “has a reasonable belief based on objective evidence, that: (1) an employee’s ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition.”

So, let’s assume that you have an employee about whom you receive multiple reports of emotionally-erratic workplace behavior. At what pointy can you require that employee to seek counseling?

Can height be a disability under the Americans with Disabilities Act?

June 14, 2013 | by Eric B. Meyer

Barbara Joy McElmurry worked for the Arizona Department of Agriculture. In a Complaint she filed in federal court, she alleged that her supervisor forced her into a field work position in which she would not be able to drive vehicles because she was too short (4’10”). So, McElmurry asserted a claim for discrimination on the basis of disability, namely, her short stature.

So, could height (or lack thereof) be a disability?

Well, under the Americans with Disabilities Act, a person is disabled if she suffers from “a physical or mental impairment that substantially limits one or more of the major life activities of such individual.” An employer could also regard an employee as disabled, even if she isn’t; that too would bring the employee within the scope of the ADA.

Tough HR issues: ADA and extending a leave of absence

June 5, 2013 | by Eric B. Meyer

Alright smarties. One of ABC Company’s employees suffers from post-partum depression. She’s been out of work for over a month, and the company wants to replace her. But, first, it wants your advice.

Read all the facts below:

Emily Employee is an HR Coordinator at ABC Company. ABC provides short-term disability benefits for regular full-time employee like Emily. Last year, Emily began a 12-week maternity leave under the FMLA, during which time she received STD benefits. She returned to work with no restrictions.

Supreme Court passes on ADA transfer accommodation case

June 3, 2013 | by Eric B. Meyer

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Here’s the scenario: You have a disabled employee who seeks an accommodation. Mindful of the Americans with Disabilities Act, and being the compliant company that you are, you engage that employee in an interactive dialogue to discuss reasonable accommodations — options to allow the employee to perform the essential functions of the position.

Ah yes! You recall that there is another vacant position for which the employee is qualified — albeit barely. That’s a reasonable accommodation. But, oh no! You remember seeing the resume of the perfect candidate for that position.

Question: If there is no other reasonable accommodation available, do you have to offer that open position to the barely-qualified disabled employee? Or can you fill the position with the more qualified candidate?

I’ll discuss after the jump…

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EEOC talks employer wellness programs; provides an ADA Q&A

May 23, 2013 | by Eric B. Meyer

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Consistent with its strategic plan to provide up-to-date guidance on the requirements of antidiscrimination laws, last week, the United States Equal Employment Opportunity Commission issued this press release in which it announced that it had revised guidance on how the Americans with Disabilities Act applies to applicants and employees with cancer, diabetes, epilepsy, and intellectual disabilities. You can find links to that revised guidance here.

And earlier in the month, the EEOC held a public meeting on employer wellness programs and how they may be impacted by not only the ADA, but also the Genetic Information Non-Discrimination Act (GINA). You can view a copy of the press release here. Suffice it to say that, until the EEOC offers further guidance on these issues — and even when it does — consult with an employment lawyer before implementing or updating one of these programs.

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