Settlement Agreement: Lexington Chinese School
Judge allows state to intervene in ADA cases
East Valley Tribune
A Maricopa County Superior Court judge approved a bid by the Attorney General’s Office to intervene in a case filed by a foundation in an attempt to enforce the Americans With Disabilities Act through civil litigation.
Judge David Talamante’s ruling makes it possible for the court to rule on whether 1,222 cases filed against mostly Mesa businesses by the Advocates for American Disabled Individuals eventually should be dismissed.
The National Law Review
In Knight v. Barry Callebaut USA Service Company, Inc., the United States District Court of the Eastern District of Pennsylvania denied an employer’s motion for summary judgment on claims brought by a terminated employee under the Americans with Disabilities Act (“ADA”) and the Family and Medical Leave Act (“FMLA”). During the work day, the employee sought “brief periodic breaks” of ten to sixty minutes each, up to three times per day, due to his medical condition. As the result of a condition flare up, the employee went to the hospital after spending hours unsuccessfully trying to locate a supervisor to notify the company that he had to leave. (Brief rest breaks generally are compensable work time so time not working would be paid time until it reached about 30 minutes; five to twenty minutes off clearly being described as compensable in the regulations under the Fair Labor Standards Act.)
After the employee left for the hospital, the employer terminated the employee days later when he returned to work after his release from the hospital. The employer’s stated reason for termination was that another worker who was injured while the employee was hospitalized had complained that the employee was frequently gone for long periods during his shifts. The employer also claimed that there was no justifiable reason for the plaintiff to take numerous breaks.
The Court found a triable issue as to whether the employee suffered from a disability or was regarded as having a disability under the ADA. The employee’s FMLA interference and retaliation claims survived as well. The Court found the close temporal proximity between the employee’s e-mail stating that he was going to the hospital and his termination created a question of fact. Further, the Court held the employee provided sufficient evidence that the employer did not advise him of his FMLA rights.
This case serves as a reminder to employers that termination of an employee who is known to have a medical condition can suggest discriminatory intent. The employer’s substituting its judgment for that of medical providers is a dangerous practice.
Lexology
In an end-of-year “user friendly” publication entitled Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights, the Equal Employment Opportunity Commission has underscored its commitment to workers with mental disabilities. The publication (described by the EEOC as a “Resource Document”), speaks directly to applicants and employees, provides them with information about their rights under the Americans With Disabilities Act of 1990 (ADA), and offers them practical advice.[1] Emphasizing the significance of mental disability discrimination, the EEOC notes that charges of discrimination based on mental health conditions are on the rise. Further, preliminary statistics separately released by the Commission show that it obtained approximately $20 million for individuals with mental health conditions during 2016.[2]
The Resource Document instructs employees how to secure an accommodation and emphasizes the role of the EEOC in enforcing their rights. It also refers readers to a related EEOC Fact Sheet issued earlier in 2016, The Mental Health Provider’s Role in a Client’s Request for a Reasonable Accommodation at Work, which briefly explains the law of reasonable accommodation and the mental health provider’s role in the accommodation process.[3] These publications, the preliminary charge data for 2016, and the Commission’s enforcement-related recoveries strongly suggest that the rights of applicants and employees with mental health conditions will be among the EEOC’s higher priorities during 2017. Employers should be prepared.
Q&A with Paula Williams: Guidelines allow voluntary employer wellness programs
JD Supra
Q: A federal court recently heard a case involving a corporate wellness program. What was the basis for the Equal Employment Opportunity Commission (EEOC) lawsuit in this case?
A: Orion Energy Systems implemented a “wellness program,” which asked employees to participate in a heath assessment to improve the health of Orion's workforce and, as a result, reduce Orion's health care spending. Participation wasn't mandatory. However, if employees chose not to participate, they had to pay their own monthly health insurance premiums. The EEOC brought this lawsuit claiming Orion's program violated the Americans with Disabilities Act, (ADA), which generally prohibits employers from asking about disabilities or requiring employees to submit to medical examinations. And, because Orion terminated an employee who refused to participate in, and publicly criticized, the wellness program, the EEOC also claimed Orion retaliated in violation of the ADA.
ADA Defense Lawyer on hotel mixed use: Tenants not liable for common areas
4Hoteliers
ADA Hospitality Defense and Compliance Lawyer: Hotel mixed-use projects have proliferated over the past decade or two — projects that combine a hotel with retail, residential, entertainment, office and other uses.
Not Phoning It In: Telecommuting Accommodations and the ADA
Lexology
In Quentin Tarantino's classic film, "Pulp Fiction," two hitmen, Jules and Vincent (played by Samuel L. Jackson and John Travolta), find themselves in a farcical and escalating "mess" – requiring the advice of a "fixer" known as "The Wolf" (played by Harvey Keitel). The Wolf arrives at the scene, assesses the situation with cool detachment, and develops a detailed plan to extricate Jules and Vincent from their unsavory dilemma. Imagine "The Wolf" insisting on phoning in his assistance instead of working in person with Jules and Vincent. Would he have been as effective? In this podcast, we discuss how agile work and employee requests to work from home implicate obligations under employment laws – specifically the Americans with Disabilities Act and other non-discrimination laws.
Washington Post
I have taken a number of airplane trips over the past month or so, and I noticed, on each of the flights I took, that there were dogs on board — not in carriers, but sitting on the laps, or in the arms, of their owners. It struck me as odd, and now, thanks to an interesting and informative article by Karen Elliott and Rebecca Lightle in The Washington Post a few weeks ago, I have an idea about what’s going on.
They’re all, apparently, “service dogs” — though from the look of it, they didn’t appear to be performing (or capable of performing) any particular service, nor did their owners appear to be disabled in any way. As Elliott and Lightle explain, the Americans With Disabilities Act requires places of public accommodation such as restaurants and transportation carriers to allow service animals — which can be dogs or, oddly enough, “miniature horses” — that assist people with disabilities.
Developments in Disability Discrimination Law in 2016, and Predictions for the Future
JD Supra