Beyond FMLA Leave: The Undefined Limits of Leave As a Reasonable Accommodation
Lexology
Under the Equal Employment Opportunity Commission’s (EEOC) new guidance on employee disability leaves, employers are required to provide disability accommodation leave and reinstatement rights even for disabled employees who have exhausted all FMLA and other required or permitted medical leaves, unless the employer can show undue hardship. The new resource document, entitledEmployer-Provided Leave and the Americans with Disabilities Act,states that employers are required to provide job protections and reinstatement rights beyond those expressly required under the Americans with Disabilities Act and the Family and Medical Leave Act (FMLA). Although the resource document does not have the force of law or regulation and the EEOC says that it is not intended to change the law, the guidance provides examples and insight into how the EEOC intends to enforce an employer’s obligation to provide disability accommodation leave and reinstatement rights to employees with disabilities.
Compliance with leave and reinstatement laws is among the most challenging areas of employment law.
Second Circuit Rejects Light Duty Program Limited to Job-Related Injuries
JD Supra
In last year’s Young decision, the U.S. Supreme Court found that an employer could not exclude pregnant employees from participation in a light duty work program absent demonstration of significant burdens that would result by opening participation to such employees. In a recent post-Young decision, the Second Circuit Court of Appeals rejected an employer’s contention that Young’s reasoning did not apply to a light duty program limited to employees who suffered on-the-job injuries.
In Legg v. Ulster City, the plaintiff was a correctional facility employee who was placed on medical restrictions due to her pregnancy. The employer rejected her request for temporary reassignment based on the fact that its light duty program was limited to employees who suffered workplace injuries. The case was decided pre-Young, but during the appeal, the plaintiff sought a new trial based on that decision.
The Second Circuit agreed, remanding the suit for a new trial. The court rejected the employer’s contention that Young’s reasoning does not apply to a situation where the employer has a Workers’ Compensation-only light duty program. The employer in Young allowed other employees to participate in its program, including those who had failed DOT drug tests. The employer noted that state law required it to provide this alternative work to injured employees, and therefore, opening it to others would place a significant burden on the city.
The Second Circuit rejected this reasoning, finding no conclusive evidence that such burden existed. The court also noted that the city had offered multiple reasons for its decision to exclude the plaintiff from light duty, raising a jury question over its true motivation for this reasoning.
Based on this outcome, it is difficult to come up with evidence of a substantial burden that would justify employers from excluding pregnant employees from a light duty program. Also, the Second Circuit’s rejection of a Workers’ Compensation-only policy as justification for this distinction raises the question whether similar reasoning would apply to an ADA claim brought by a disabled employee who suffers from a non-work-related medical condition.
Kroger Pays $82k & Agrees To ADA Training To Settle Howell Lawsuit
WHMI
Details of a settlement have been released in a federal lawsuit against a major grocery retailer over the firing of an employee at their Howell location. The U.S. Equal Employment Opportunity Commission filed the suit in 2014 alleging that the Kroger store in Howell failed to make reasonable accommodation for Jarydith Mannella, who worked as a stock person, after she suffered a back injury in June of 2010. The suit said that after her injury Mannella was moved out of the stock room and became a cashier, scanning items in customers’ carts using a hand-scanner. However, after more than a year in this capacity, she was let go. According to the EEOC, Kroger says it fired Mannella because she could not perform the essential duties of her job, but they believed it was actually done because the retailer learned her disability would be permanent. Under terms of the consent decree, Kroger does not admit any legal liability, but will pay $49,000 to settle and redeem Mannella’s workers’ compensation claim. Kroger will also pay $33,000 directly to Mannella as compensatory damages to resolve all claims asserted in the complaint. The decree also prohibits Kroger from refusing to reasonably accommodate an employee with permanent restrictions nor fire a disabled employee when a reasonable accommodation is available. Kroger must also provide a mandatory training program for its human resources department that will focus on the requirements of the Americans with Disabilities Act.
Harvard law grad's suit alleges lack of bar exam accommodations devastated her BigLaw career
ABA Journal
A Harvard law grad alleges she lost her job at Ropes & Gray because she wasn’t granted all her requested disability accommodations the first and second time she took the New York bar exam, causing her to flunk both times.
The June 10 suit (PDF) by Tamara Wyche claims the New York State Board of Law Examiners violated the Americans With Disabilities Act for failing to grant the accommodations she needed for her anxiety and cognitive deficits caused by an accident in an all-terrain vehicle, Law.com reports. She passed the bar after she was granted additional accommodations on her third try.
The suit claims the bar examiners have a “fail-first requirement” that “devastated” her career. She has not been able to find work at a large law firm and has been able to secure only temporary positions. “Put simply,” the complaint says, the board’s decisions “have derailed a highly promising legal career.”
Wyche says law examiners initially denied all of her accommodation requests, but allowed extra break time and a smaller testing room when she appealed. She had panic attacks during the first exam and failed. The second time she was given 50 percent additional testing time and a smaller testing room, but denied the extra break time she was given for the first bar exam. She passed on the third try after she was given double time to take the exam, “the full accommodation that she needed and had requested three times,” the suit says.
John McAlary, the executive director of the New York State Board of Law Examiners, is one of the defendants. “Our board is very sensitive to the needs of the disabled, and we’re proud of our track record in providing accommodations,” he told Law.com.
Fiat Chrysler Applicants With Dwarfism Lose ADA Claims
Bloomberg BNA
Two applicants with achondroplasia dwarfism who weren't selected for production jobs at a Fiat Chrysler plant in Michigan can't proceed with federal or state law disability bias claims, a federal judge ruled ( Snyder v. Chrysler Grp., LLC , 2016 BL 185903, E.D. Mich., No. 15-12238, 6/10/16 ).
The case offers an example of applicants failing to show they are qualified individuals with disabilities entitled to protection under the Americans with Disabilities Act and Michigan's Elliott-Larsen Civil Rights Act. A qualified individual within the meaning of the two laws is someone who can perform a job's essential functions with or without a reasonable accommodation for his or her disability.
More Employees Are Suing Over Family-Leave Discrimination. Here’s What You Need to Know
Huffington Post
After facing discrimination over taking family leave, more men and women are choosing to sue their bosses—and in some cases, winning substantial amounts
Kintner addresses frivolous ADA lawsuits
Fremont Tribune
Opening up a business in today’s regulatory climate can be very difficult. Knowing all the federal, state, county and city regulations and building codes may be overwhelming for a new entrepreneur and surprising even to those in business for many years.
A large portion of employment opportunities are found in small businesses, which is why removing unnecessary obstacles, or preventing new burdens from being placed on the small businesses helps Nebraska economically compete with our neighboring states.
This is why I was concerned when I was contacted recently regarding potential abuse of the Americans With Disabilities Act (ADA) by a group of attorneys targeting mom-and-pop stores and other small businesses in Omaha area.