ADA in the News January 4, 2019

The do's and don'ts of ADA accommodations: 3 new rulings

Hr Morning

Employers are facing more disability discrimination lawsuits than ever – despite their best compliance efforts. 
In the past year alone, over 25,000 ADA charges were filed by the EEOC.

The right way to accommodate

One area that’s often a point of contention? The accommodation process. Workers and employers can have a very different idea of how a disability should be accommodated.

And while each disability needs to be evaluated on a case by case basis, several recent court rulings shed further light on employers’ ADA accommodation responsibilities.

1. In Brumley v. United Parcel Service, a court ruled that ADA accommodations don’t necessarily have to be given to employees immediately.

Melissa Brumley delivered packages for UPS when she hurt her back lifting a heavy box from her truck.

She took leave to heal, and her doctor said when she returned to work she could no longer lift packages or drive. Since these were two essential functions of her job, Brumley’s manager put her on leave while waiting on more information from her doctor.

After beginning the interactive process and considering a reassignment, Brumley’s doctor cleared her to go back to her old job, and UPS ended the process.

But Brumley sued the company for failing to accommodate her during those weeks she was on leave, which resulted in loss of pay.

A district court ruled in favor of UPS, and on appeal the 6th Circuit agreed. It said just because the company didn’t accommodate the employee immediately didn’t mean it violated the ADA.

UPS began the interactive process and only stopped once Brumley was cleared to go back to her old job without an accommodation.

The key things the company did? Beginning the process and requesting additional info from Brumley’s doctor – this showed the court a good faith effort to comply with the ADA.

2. In Sharbono v. Northern States Power, a court ruled a company that failed to find an accommodation didn’t fail to fulfill its ADA duties.

After a foot injury, James Sharbono wasn’t able to wear the steel-toed boots required by his company’s safety procedures.

HR worked with Sharbono and suggested several accommodations, such as altering his boots and getting a custom pair made, but none worked out. Sharbono was forced to retire, and he sued for ADA violation.

But the 8th Circuit ruled the company acted in good faith. It worked with Sharbono and suggested several accommodations. It was only after exhausting all options that Sharbono was forced to retire. The court said the company fulfilled its ADA responsibilities, despite finding no accommodation for Sharbono.

3. In Stokes v. Nielsen, a court decided companies can be required to make accommodations that cover more than just essential job functions.

Jacqueline Stokes had impaired vision and received multiple accommodations that allowed her to do her job. Stokes then requested special meeting handouts, printed in large letters, that she could read beforehand.

Despite many promises from HR, Stokes never received her requested handouts. She sued, claiming to be denied a reasonable accommodation under the ADA.

While the company argued it gave Stokes everything she needed to do her job, therefore fulfilling its ADA responsibilities, the Fifth Circuit disagreed.

“Our circuit has explicitly rejected the requirement that requested modifications must be necessary to perform essential job functions to constitute a reasonable accommodation,” it said. And Stokes’ request was deemed reasonable.

This case shows if an employee makes a reasonable request for their job, it’s easier to just grant it.

Drugs, trucking, the law and your rights

American Trucker

Opioid use and abuse has reached epidemic levels in our country. This crisis is far-reaching, affecting virtually all industries and geographic areas, including truck drivers. Studies have shown that fatally injured motor vehicle drivers who tested positive for prescription opioids rose from 1% in 1995 to over 7% in 2015.

Opioids are particularly dangerous for vehicle operators as they can cause drowsiness, slower reaction time, and diminished alertness. Perhaps in response to this epidemic, the Department of Transportation (DOT) revised its drug screening procedures effective Jan. 1, 2018 to include testing for several opioids such as Hydrocodone (aka Vicodin), Hydromorphone (aka Dilaudid), Oxymorphone, and Oxycodone (aka Oxycontin and Roxicodone). But what happens if you are a motor carrier who becomes aware that a current truck driver employee who previously passed drug testing is now using or abusing opioids, or other controlled dangerous substances? Can you simply fire the driver? Or can your employee claim protection under the Americans with Disabilities Act (ADA)?

The ADA prohibits employers from terminating a “qualified individual” on the basis of disability. In order to be successful on an ADA claim, a plaintiff employee must show that: (1) he is disabled; (2) he is a qualified individual; and (3) he suffered unlawful discrimination because of his disability. According to the Equal Employment Opportunity Commission (EEOC), individuals who are addicted to drugs, but are no longer using drugs illegally and are receiving treatment for drug addiction, are protected by the ADA. So while drug addiction itself may be considered a disability under the ADA, the current use of illegal drugs bars an employee from ADA protection.

But the answer doesn’t end there. In fact, for employers in the commercial trucking industry, a disability analysis under the ADA may not even be necessary. Rather, a trucking company employer may answer this question by simply examining whether the driver employee is a “qualified individual” under the law. Because, simply put, if the driver is not qualified, there is no ADA protection.

Can You Be Fired for Being Pregnant? Blog 

Workers are surprised to hear that, in many cases, employers can terminate you on the spot at almost any time. It is called at-will termination, and it allows employers to fire individuals without issuing any kind of warning and without notice.

At-will termination is usually reserved for extreme situations, such as a violent act, insubordination, fraud, stealing, or comparable acts. When at-will terminations occur for lesser offenses, like an accident or a mistake, employers risk looking unfair or capricious. Sometimes terminations lead to lawsuits.

What About Pregnancy?
Under the law, pregnancy does not constitute an extreme situation. It is a natural part of life, and employers must respect it. Termination for being pregnant is specifically forbidden by the Pregnancy Discrimination Act (PDA). It forbids employers with 15 or more employees from discriminating against workers because of pregnancy, childbirth, or related medical conditions. Pregnant women are to be treated just like any other employee in terms of their ability or inability to work. Employers may not ask a pregnant worker to do more than any other employee with a medical condition.

Pennsylvania’s Human Rights Act likewise forbids discrimination based on pregnancy, pregnancy-related medical conditions, and childbirth. Unlike the federal PDA, Pennsylvania’s law covers all employers with four or more employees. New Jersey law goes even further, forbidding discrimination based on pregnancy or childbirth for employers of any size.

Pregnant Workers Have Rights
The Americans with Disabilities Act (ADA) adds additional rights for some women. Under ADA, employers must provide reasonable accommodations to employees dealing with a pregnancy-related disability, such as gestational diabetes or pregnancy-enhanced migraines.

If your employer has 50 or more employees, you may also be entitled under the Family and Medical Leave Act (FMLA) to unpaid family leave for medical issues relating to pregnancy and childbirth. It also provides time for either parent to bond with the child. Eligible employees may take up to 12 weeks off work for medical needs and caretaking responsibilities.

Service dog request denied

Log Cabin Democrat

A federal judge in the U.S. District Court of the Eastern District of Arkansas in Little Rock ruled Wednesday against a 16-year-old student and her family’s request for the use for a service animal at Conway High School.

Angelia Pettus and her daughter, both Conway residents, originally filed a lawsuit against the Conway School District in November under the Americans with Disabilities Act (ADA) claiming the school violated the girl’s rights to use the animal for her disability — she suffers from severe anxiety and depression disorder.

On Wednesday, Chief U.S. District Judge Brian S. Miller denied a preliminary injunction request by Thomas Nichols, an attorney for Disability Rights Arkansas, on behalf of the student and her family to allow the 16-year-old to return to school with her miniature Australian shepherd dog, Dobbie.

The groups met in court Dec. 19 for a motion hearing where Miller heard arguments from both sides.

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