Category Archives: Reasonable accommodation

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Policy regarding return-to-work medical release trumps employee’s ADA and FMLA claims.

back painOne of the questions most frequently asked by employers is whether an employee’s failure to comply with company policies regarding a return-to-work release can support termination of the individual’s employment. While courts differ on that issue depending upon judicial circuit and the specific facts of the case, the 8th U.S. Circuit Court of Appeals recently … Continue Reading

Pregnant employee terminated because of upcoming lifting restrictions may have claim for “anticipatory discharge.”

boss firing pregnant empoyeeOne federal court – the U.S. District Court for the Northern District of Illinois - recently reviewed a case in which a pregnant employee was terminated after informing her employer that she would be subject to a lifting restriction beginning at the 20th week of her pregnancy. Although the employee was only in her 15th … Continue Reading

Congratulations! It’s a . . . pregnancy discrimination guidance.

What-to-Write-in-a-Baby-Shower-CardThe Equal Employment Opportunity Commission (EEOC) has issued its first comprehensive update of a 1983 Compliance Manual chapter on the subject of the Pregnancy Discrimination Act (PDA) and related issues. The Guidance, which was not submitted for public comment prior to its issuance, also discusses the application of the Americans with Disabilities Act (ADA), as … Continue Reading

Don’t panic about your telecommuting policy . . . unless you’re in the Sixth Circuit.

A recent decision by the 6th U.S. Circuit Court of Appeals seems to have sent many employers into a tailspin on whether and how often to allow employees to telecommute to fulfill job responsibilities. EEOC v. Ford Motor Company, 6th Cir., No. 12-2484, April 22, 2014.  (FindLaw.com link.) However, at this point, it is too … Continue Reading

Employee’s speculation related to basis of his firing is insufficient to support a claim of retaliation.

To prevail on a claim of retaliation under federal law, an employee must prove he or she engaged in a “protected activity” under an anti-discrimination statute, and subsequently suffered an adverse employment action. In addition, the employee must establish that the protected activity was “causally connected” to the employer’s adverse action. The 4th U.S. Circuit … Continue Reading

EEOC challenges employer’s 12-month maximum medical leave policy.

The U.S. District Court for the Northern District of Illinois denied a motion filed by United Parcel Service, Inc. (UPS) to dismiss a claim by the Equal Employment Opportunity Commission (EEOC) on behalf of a class of individuals challenging the company’s leave policy. The challenged policy requires that employees “be administratively separated” from employment after … Continue Reading

Reasonable accommodation sought by disabled employee must enable employee to perform ‘essential functions’ of original job.

In an unpublished opinion, the6th U.S. Circuit Court of Appeals has held that an employee who was unable to complete the functions of her job while on part-time duty could not subsequently claim that ongoing part-time work was a reasonable accommodation for her disability. White v. Security First Associated Agency, Inc.,et al, 6th Cir., No. … Continue Reading

Written job description did not sufficiently indicate the essential nature of night shift in emergency dispatcher position.

One federal district court has ruled that a night-shift emergency dispatcher with diabetes and hypertension, whose doctor stated that the individual’s health would be improved by working day-shifts, could proceed on his claim that an employer’s refusal to allow him to work days violated the Americans with Disabilities Act (ADA). Szarawara v. County of Montgomery, … Continue Reading

Employer’s judgment about what constitutes an essential job function carries substantial weight.

Is the ability to be licensed to drive a commercial vehicle an “essential function” of a warehouse manager’s position, even though that manager rarely is required to drive? According to the 8th U.S. Circuit Court of Appeals, that answer depends largely upon the job description developed by the employer, and not on the employee’s specific … Continue Reading

8th Circuit upholds jury’s decision that if employee is prohibited by his doctor from engaging in the essential functions of his job, no accommodation is necessary.

The 8th U.S. Circuit Court of Appeals recently held that jury was justified in finding that an employer is not required to engage in an onsite evaluation to interactively create a reasonable accommodation for a disabled employee, if a treating physician’s restrictions would prevent that individual from performing those essential functions at all. Hohn v. … Continue Reading

“Reasonable accommodation” may include adjustments to work schedule, even beyond an agreed-upon flex-time schedule.

Employers are aware of the fact that the Americans with Disabilities Act (ADA) requires them to engage in an interactive process in order to determine whether a disabled individual can be accommodated to assist him or her in performing the essential functions of a job. In determining the essential functions of a position, most employers … Continue Reading

Employer has no obligation to provide “light duty” assignment under FMLA or ADA.

The use of light duty assignments to employees who are returning to work after recuperation from an illness or injury is an often used mechanism. The 7th U.S. Circuit Court of Appeals has held that neither the Family and Medical Leave Act (FMLA) nor the Americans with Disabilities Act (ADA) creates an obligation for an … Continue Reading

Employer not obligated to make an otherwise temporary “light-duty” position permanent to accommodate disabled employee under the ADA.

In an unpublished opinion, the 6th U.S. Circuit Court of Appeals recently upheld summary judgment in favor of an employer who refused to convert a light-duty position into a permanent job for a disabled employee.  Wardia v. Campbell County Regional Justice Dept. of Corrections, 6th Cir., No. 12-5337, January 3, 2013. In that case, a … Continue Reading

Employer’s reliance on third party assessment to determine reasonable accommodation may lead to ADA liability.

The 6th U.S. Circuit Court of Appeals recently addressed an issue of first impression, finding that the ability to hear is not necessarily an “essential function” of the job of lifeguard. Keith v. County of Oakland, 6th Cir., No. 11-2276, January 10, 2013. In addition, however, the Court made a number of other, more generally … Continue Reading

Employee’s request to move from rotating shift to straight shift not a “reasonable accommodation” under the ADA.

The 8th U.S. Circuit Court of Appeals recently addressed an issue of concern frequently raised by employers: whether allowing an employee to move from rotating shifts to straight daytime work is a required “reasonable accommodation” under the ADA. Kallail v. Alliant Energy Corporate Services, Inc., 8th Cir., No. 11-2202, September 4, 2012. In that case, … Continue Reading

An indefinite exemption from the essential functions of a job is not a reasonable accommodation under the ADA.

An issue that confounds employers on a regular basis is whether the discharge of an employee who is unable to return to work after a medical leave will violate the American with Disabilities Act (ADA). Most employers understand their obligation to engage in an interactive process to determine a reasonable accommodation that will assist the … Continue Reading

Seventh Circuit underscores a circuit split on preferential reassignment of disabled individuals to open positions.

The Federal Circuits currently are split on the issue of whether the ADA requires reassignment of disabled employees to vacant positions when a more qualified candidate exists, with the 10th Circuit and the District of Columbia Circuit holding that the ADA creates preferential treatment for disabled candidates, and the 7th and 8th Circuits holding that … Continue Reading

Employee’s inability to work overtime is not a per se disability under the ADA.

The 4th U.S. Court of Appeals has dismissed an employee’s lawsuit, holding that the individual’s inability to work overtime hours was not a substantial limitation that would entitle him to the protections of the Americans with Disabilities Act (ADA). Boitnott v. Corning Incorporated, 4th Cir., No. 10-1769, February 10, 2012. Michael Boitnott, an employee of … Continue Reading

OFCCP’s proposed revisions to regs require increased obligations and affirmative action regarding disabled individuals.

Section 503 of the Rehabilitation Act of 1973, as amended ("Section 503"), prohibits employment discrimination by federal government contractor and subcontractor employers against individuals with disabilities. It also includes affirmative action provisions that relate to both hiring and advancement of disabled individuals by those same employers. The provisions of Section 503 apply to government contractors … Continue Reading

High school diploma as pre-requisite to employment may violate the ADA.

On December 2, 2011, the EEOC posted an “informal discussion letter” on its website. The letter was in response to an issue involving individuals who are unable to earn a high school diploma because of certain learning disabilities and who therefore are ineligible for jobs that require a high school education. According to the EEOC, … Continue Reading

Plaintiff must request an accommodation that allows him to perform the essential functions of the job in order to support ADA claim.

A medical resident with Asperger’s Disorder was unable to meet his burden, in his ADA lawsuit against his hospital employer, that he was “otherwise qualified” for his position. The 6th U.S. Circuit Court of Appeals upheld summary judgment in favor of the hospital, because the resident’s requested accommodation – that the hospital physician and staff … Continue Reading

Alleging that employer views an individual as disabled from doing one type of job is not sufficient to support a “regarded as” argument under the ADA.

The ADA defines “disability” as a physical or mental impairment that substantially limits one or more major life activities, or being “regarded” as having such impairment. In order to support a “regarded as” claim under the ADA, an individual has to show that the perceived impairment limited a major life activity and that the limitation … Continue Reading

Under the ADAAA, individual with episodic disability does not have to be “substantially limited” at the time of complained-of adverse action.

The ADA Amendments Act of 2008 (ADAAA) clarified the ADA in a number of ways. In one significant clarification, the ADAAA provides that “an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.” Based upon that wording, a federal district court in the … Continue Reading
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