ADA in the News: March 10, 2017

ADA and FMLA Claims Fail for Call Center Employee Who Dropped Calls

JD Supra

In a published opinion, the Tenth Circuit Court of Appeals recently ruled that the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA) do not require employers to excuse an employee’s misconduct even though the conduct was related to the employee’s disability. As a result, the Tenth Circuit affirmed summary judgment in the employer’s favor on the employee’s disability discrimination claim and FMLA retaliation claim. DeWitt v. Southwestern Bell Telephone Company, No. 14-3192, Tenth Circuit Court of Appeals (January 18, 2017).

Costco Cleared on Discrimination Claims of Worker With Tourette's

Bloomberg BNA

Costco Wholesale Corp. won’t have to stand trial on the disability bias and retaliation claims of a longtime employee who has Tourette syndrome and obsessive compulsive disorder (  Fox v. Costco Wholesale Corp. , 2017 BL 68220, E.D.N.Y., No. 15-439, 3/6/17 ).

Christopher Fox, a greeter and assistant cashier at a Costco warehouse in Holbrook, N.Y., said co-workers harassed him because of his disabilities and that he was retaliated against for sending an email to Costco’s chief executive officer complaining about the behavior.

But the alleged derogatory comments and behavior don’t rise to the level of “severe or pervasive” harassment that would violate the Americans with Disabilities Act, Judge Denis R. Hurley of the U.S. District Court for the Eastern District of New York said March 6.

A Cancer Diagnosis May Not Provide Disability Employment Protections

Huffington Post

A Cancer Diagnosis May Not Provide Disability Employment Protections

This comment briefly notes eight US Courts of Appeal decisions involving cancer that affirmed a grant of summary judgment (a decision without a trial) in favor of the employer when the employee claimed that disability rights under the Americans with Disabilities Act (ADA) were violated. Always consult an experienced attorney in all disability situations.

The Americans with Disabilities Act (1990) broadly prohibits disability based discrimination when an employer has 15 or more employees. In overview, the employee must demonstrate a disability, that she was otherwise qualified for the position in question, and that the exclusion from the position was solely because of the disability. “Disability” is defined under the ADA as a physical or mental impairment that substantially limits one or more of a person’s major life activities, or that one has a record of such impairment, or one is regarded as having such an impairment. If the applicant or employee is otherwise qualified for the position, the employer must provide a reasonable accommodation unless such accommodation will cause the employer an undue hardship.

United States: Do You Have A Gap In Your Benefit Eligibility Procedures? Issues Raised By Non-FMLA Reduced Schedules And Leaves Of Absence

Mondaq News Alerts

Most employers have procedures in place to ensure that an employee who takes leave under the Family and Medical Leave Act (FMLA), whether as a reduced schedule or an extended leave of absence, retains his or her eligibility under the employer-sponsored health plan. But many employers have gaps in their procedures when an employee's reduced schedule or leave of absence occurs when the employee is not yet eligible for FMLA leave or after FMLA leave has been exhausted. Typically, the gap in procedures exists when the non-FMLA reduced schedule or extended leave arises from a work injury or as an accommodation under the Americans with Disabilities Act (ADA).

Former Houma police officer alleges wrongful termination

The Louisiana Record

A former law enforcement officer alleges he was terminated following time off for a surgery.

Michael Toups filed a complaint on March 2 in the U.S. District Court for the Eastern District of Louisiana against the Terrebonne Parish Consolidated Government, Houma Police Department, Dana Coleman and Donna Wedgeworth citing the 14th Amendment and the Americans with Disabilities Act.

According to the complaint, the plaintiff alleges that on March 21, 2016, despite his release back to work following a surgery from his doctor, he was terminated from his employment without due process. The plaintiff holds Terrebonne Parish Consolidated Government, Houma Police Department, Coleman and Wedgeworth responsible because the defendants allegedly made no effort to engage in interactive process to determine whether or not the plaintiff could be accommodated.

The plaintiff requests a trial by jury and seeks reinstatement to employment, an order to issue an identification care identifying him as a retired law enforcement and reimbursement of all costs and attorney's fees expended for this case. He is representing himself.

U.S. District Court for the Eastern District of Louisiana Case number 2:17-cv-01821

Smelly Workplace? A Case Of 'Extreme Gas' In The Ol' Factory

Above the Law

Is there a more uncomfortable – and unpleasant – situation than sitting in a crowded car when a certain odor is detected emanating from someone in the car? There is an awkward silence – what can one say? – until or unless someone asks to crack open the window, or makes a half-hearted, stupid “joke,” and everyone squirms and eyes each other subtly.

Eventually, however, the odor disappears.

But what if it doesn’t disappear, and this happens in the workplace and worsens by the day, due to someone’s disability?  Big problem.

This became a real lawsuit, and it was no joke – either to the sufferer or the employer.

7th Circ. Tosses Ill. Employee's Disability Bias Suit

The Seventh Circuit on Wednesday affirmed a lower court's ruling dismissing a suit brought against the Illinois Department of Human Services by an employee alleging he was subject to disability discrimination, holding that the lower court properly found the claims to be time-barred.

Focus the ADA Where it's Needed

Creators Syndicate

Before the Americans with Disabilities Act was passed, many Floridians struggled to survive in a world of barriers, like curbs and stairs impassible to wheelchair users or menus that a blind person couldn't see. And passage of the law has opened doors for millions of people shut out of activities that most Americans take for granted — things as crucial as holding a job, or as simple as looking in a mirror

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