Employer made 'ample efforts' to accommodate caregiver, 7th Cir. rules
Dive Brief:
- A chemist was not subjected to discrimination by association under the Americans with Disabilities Act (ADA) when he was fired while out on leave and his employer twice modified his work schedule so he could take care of his ailing grandfather, the 7th U.S. Circuit Court of Appeals has ruled (Pierri v. Medline Industries, Inc., No. 19-3356 (7th Cir. Aug. 6, 2020)).
- Medline Industries terminated Frank Pierri's employment after he took leave under the Family and Medical Leave Act (FMLA) and failed to return to work. Pierri had asked for accommodations that would allow him to take care of his grandfather who had been diagnosed with liver cancer. "Medline was receptive," the court said, and offered a number of accommodations, including granting Pierri FMLA leave one day per week. When he began this schedule, his supervisor "began harassing him" and, citing stress and anxiety, Pierri asked for full-time leave. When his leave began, Pierri sued, claiming discrimination by association under the ADA.
- A district court granted summary judgment to the employer, and the 7th Circuit affirmed the trial court's decision. Pierri failed to establish a prima facie case of associational discrimination under the ADA, the appeals court said. The employer made "ample efforts" to accommodate Pierri's need to care for his grandfather, the court said. The court also noted that even if Pierri could make a claim for associational discrimination, he failed to show that he suffered an adverse employment action.
Dive Insight:
The ADA protects qualified individuals with a disability from workplace discrimination. The federal law also protects workers against bias with a "known relationship or association" with someone who has a disability. Employers are prohibited from making "adverse employment decisions based on unfounded concerns about the known disability of a family member, or anyone else with whom the applicant or employee has a relationship or association," according to the U.S. Equal Employment Opportunity Commission (EEOC).
For instance, an employer may not refuse to hire the applicant best qualified for the job because it learned the applicant has a child with a disability during the interview process. "The employer violates the ADA if it refuses to hire [the applicant] based on its belief that his need to care for his child will have a negative impact on his work attendance or performance," EEOC says in guidance.
Additionally, it's worth noting that while an adverse employment action that occurs soon after, or during, a protected leave can appear suspicious, employers that act for legitimate reasons and have good documentation are often able to successfully defend their actions.
Strict medical restrictions disqualified employee for her job, court says
When an employee has an injury or disability, the ADA requires employers to grant reasonable accommodations.
But what happens when the employee’s injury prevents them from performing an essential part of their job?
Lifting requirement
Janet Kotaska worked for FedEx in Illinois when she injured herself. Kotaska eventually returned to work, but she was unable to lift more than 15 pounds over her head.
Her job description required her to lift up to 75 pounds. Since Kotaska couldn’t do this, and there was no accommodation available, FedEx terminated her.
Kotaska sued, claiming an ADA violation. She argued that while the official job description required delivery people to lift up to 75 pounds, most packages she delivered were around 15 pounds.
However, the 7th Circuit ruled against Kotaska. It said the debate over the lifting requirement was irrelevant. Kotaska’s lifting restrictions were so stringent she wasn’t ADA-protected, the court said.
The 7th Circuit agreed with the company that there was no reasonable accommodation for Kotaska. Her firing didn’t violate the ADA.
This case reinforces that employers aren’t expected to remove or alter essential job functions to accommodate an injured worker.
Cite: Kotaska v. Federal Express, 7/17/20.
When Street Design Leaves Some People Behind
Expanding road space for bikes can limit accessibility for others — a balancing act for street planners and disability advocates.
Marlee Matlin flabbergasted Trump doesn’t have ASL interpreter for COVID-19 hearings
Although sign-language interpreters are a non-presence during the federal updates, they’re common on state and local levels.
Now, fed-up deaf advocates are turning to the courts in their demand for interpreters.
On Aug. 3, the National Association of the Deaf filed a lawsuit against the White House.
“The White House’s failure to provide ASL interpreters during COVID-19-related briefings, including press briefings, is against the law,” the advocacy group has argued.
EEOC Expands Guidance on Disability Discrimination Coverage for Opioid Users
As the war with COVID-19 rages on, the United States continues its battle against another dangerous opponent—the opioid epidemic. The last decade has taught us that opioid use and abuse knows no boundaries; its impact has been felt among families, friends, households and workplaces alike. To that end, the Equal Employment Opportunity Commission (EEOC) issued new guidance on August 5, 2020 requiring employers to consider the Americans with Disabilities Act (ADA) when managing its employees who are either lawfully using opioids or who are working through recovery. The EEOC defines opioids to include prescription drugs, such as morphine, OxyContin, Percocet and Vicodin, as well as Suboxone and methadone, which are commonly prescribed to treat opioid addiction during the course of Medication Assisted Treatment (MAT).
Despite the new guidance, employers may take adverse action against employees engaged in the unlawful use of opioids regardless of whether such use presents any performance or safety issues. The EEOC makes it clear, however, that with regard to lawful opioid use, including MAT, employers must consider whether reasonable accommodations exist for the employee to perform the job safely and effectively. The guidance contemplates accommodations for medical conditions associated with opioid addiction, such as depression and post-traumatic stress disorder, as well as the addiction itself, a diagnosable condition referred to as Opioid Use Disorder. For example, an employee may qualify for an altered work schedule, if reasonable, in order to attend therapy or support group meetings, such as Narcotics Anonymous, necessary to avoid relapse.
The EEOC issued separate, though related, guidance for health care providers to assist them in navigating their patients’ needs for workplace accommodations as a result of opioid addiction. The guidance offers examples of potential accommodations like unpaid time off for treatment (which may intertwine with the Family and Medical Leave Act) or a temporary reassignment of duties.
Sufficient documentation is integral to the ADA’s interactive process and deficient paperwork is frustrating for both employers and employees. As such, the EEOC has used its newly-issued guidance as an opportunity to provide tips and best practices for health care providers when completing requests for reasonable accommodations:
· Briefly outline professional qualifications as well as the nature and length of the relationship with the patient;
· Identify the nature of the patient’s condition;
· Explain the need for the reasonable accommodation and how the patient’s functionality is limited in the absence of treatment; and
· Suggest potential accommodations, if possible.
The guidance documents are available in full on the EEOC’s website, though employers are encouraged to seek legal advice in administering and ensuring full compliance with the ADA. As always, Ice Miller is here to help.
EEOC Says Employees in Opioid Treatment Are Protected by the ADA
On August 5, 2020, the EEOC released technical assistance documents for employees and health care providers on opioid addiction and employment. The documents provide questions and answers about how the Americans with Disabilities Act (ADA) protects employees who use legal opioid medications or have past addiction to opioids. Of particular significance, the EEOC asserts that employees currently in treatment for opioid addiction are protected by the ADA – thereby officially endorsing a position that they have previously asserted on a less formal basis.
Under the ADA, current drug users are not protected but rehabilitated drug users are. This leads to the question of when someone can be considered to be rehabilitated. In a 2019 blog post, I reported on comments made by a Senior Attorney Advisor at the EEOC during a training seminar. The EEOC attorney stated that participation in a Medication Assisted Treatment (“MAT”) program for opioid addiction that requires the employee to take opioid medication, such as buprenorphine and methadone, would be considered evidence of rehabilitation. This, in turn, would require employers to engage in an individualized assessment to determine whether the employee can perform the essential functions of the job, with or without a reasonable accommodation. The EEOC attorney also stated that the agency would be bringing cases under this premise in order to establish a body of legal precedent. I wrote another blog post about one such case, in which the federal court agreed with the EEOC’s position, earlier this year.
Now, the EEOC’s new guidance for employees explains that the ADA allows employers to terminate and take other employment actions based solely on an employee’s illegal use of opioids. The guidance makes clear that “[i]f you are using opioids, are addicted to opioids, or were addicted to opioids in the past, but are not currently using drugs illegally,” the ADA may apply. Thus, if an employee is participating in a MAT program for opioid addiction, then the employee has a valid prescription for an opioid-based medication and their use of the medication is legal. As such, the ADA prohibits an employer from denying a job or terminating an employee because they are in a MAT program, unless the employer has objective evidence that the employee cannot do the job or poses a direct threat to their own health and safety or to others that cannot be eliminated by reasonable accommodation. An employer cannot take an employment action because of remote or speculative risks. The guidance states that an employer may want an employee to undergo a medical evaluation to make sure it has enough objective evidence about what the employee can safely and effectively do.
The guidance for health care providers provides information on reasonable accommodations and how to address an employer’s safety concerns. Reasonable accommodations include an altered break or work schedule, a change in shift assignment, or a temporary transfer to another position. However, an employer never has to lower production or performance standards, eliminate essential functions of a job, pay for work that is not performed, or excuse illegal drug use on the job as a reasonable accommodation.
With respect to employers determining whether an employee poses a direct threat to themselves or others, the guidance states that it is not enough for health care providers to provide the employer with restrictions such as “no operating heavy machinery.” The guidance explains that employers need information that will help them assess the level of risk posed by the disability, taking into account the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur, and the imminence of the potential harm. This information should include relevant medical events or behaviors that could occur on the job, the probability that they will occur, and whether any safety precautions would reduce the chances that the medical event or behavior will occur.