ADA in the News: August 8, 2014

According to the EEOC's suit, MPW Industrial Services terminated Todd Semko from his position as a laborer before his first day of work after it learned during a fitness-for-duty evaluation that he has an implanted Transcutaneous Electrical Nerve Stimulation (TENS) unit in his lower back for a back impairment. The EEOC said MPW Industrial Services fired Semko because a company occupational nurse feared that he would not be able to charge the TENS unit at the Dravosburg, Pa., worksite to which he might be assigned even though Semko explained that he did not need to charge the unit at work or during working hours. Semko was not under any medical restrictions and the company never requested any additional medical documentation from Semko's doctor or explored providing a reasonable accommodation instead of terminating him.
Such alleged conduct violates the Americans with Disabilities Act (ADA), which prohibits employers from refusing to hire or firing a qualified individual because the individual is disabled or the employer incorrectly perceives the individual to have a disability. The ADA also requires an employer to provide reasonable accommodation to an employee or job applicant with a disability, unless doing so would cause significant difficulty or expense for the employer. The EEOC filed suit (EEOC v. MPW Industrial Services, Inc., Civil Action No.2-13:cv-01011) in U.S. District Court for the Western District of Pennsylvania after first attempting to reach a pre-litigation settlement through its conciliation process.
Corporate Counsel
Here’s a gratis tip for all employees: if you need a workplace accommodation, it’s best to ask for one before suing a company for failing to provide it. According to Eric Meyer over at the Employer Handbook, although amendments to the Americans with Disabilities Act in 2009 made it more employee-friendly, employers are not yet required to intuit the needs and constraints of their staff.
He cites a recent case out of the U.S. District Court for the Southern District of Ohio, where an employee had physical restrictions because of epilepsy. Part of his job required him to drive and make deliveries, but when he told his employer about the epilepsy, it restructured his job, and eventually placed him on leave via the Family and Medical Leave Act. When the FMLA time expired, he was terminated because the company determined he couldn’t perform essential job functions, explains Meyer. The worker sued for a failure to accommodate.
The thing is he never actually requested any accommodation from his employer. The court ruled, “A plaintiff must propose an accommodation and show that it is objectively reasonable.” Good news for accommodating (but nonomniscient) employers throughout the country.
JD Supra
Two recent court decisions considered whether employees who had permanent lifting restrictions were “qualified individuals” entitled to relief under the Americans with Disabilities Act (ADA).
JD Supra
In This Issue:
·         EEOC Issues New Guidance On The Pregnancy Discrimination Act
·         N.Y. Federal Court Allows ADA Suit To Proceed
Why it matters: In an employee-friendly opinion emphasizing the need for “active participation” in the interactive process of finding a reasonable accommodation under the Americans with Disabilities Act (ADA), a federal court judge in New York allowed a suit brought by a former employee with post-traumatic stress disorder (PTSD) to move forward. The plaintiff’s PTSD was triggered by the September 11 attacks and worsened when his employer relocated his team to a building near the site of the World Trade Center. Although the employer pointed out that it proposed multiple accommodations for the employee – such as a cube without a view of the site and a white noise machine – the court said the proposed accommodations did not address the employee’s “consistently stated fear of being near the site” of the World Trade Center. The employer also denied the worker’s suggested accommodations to work from a different Manhattan building or telecommute from home. The breakdown of the reasonable accommodation process could result in liability for the employer under the statute, the court said, as “the interactive process of the ADA demands active participation by both parties in creating a reasonable accommodation, not just occasional employer reactions as a mentally ill employee works his way through the resources structure.”
Due to the ever changing laws surrounding the legality of marijuana, many of our hospitality clients have recently asked us whether it is lawful to terminate an employee who has tested positive for marijuana.  The answer varies greatly depending on the state in which you are located. 


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