Dancing with the Devil: Balancing FMLA and ADA Obligations
The National Law Review
Any employer will tell you that the federal Family Medical Leave Act ("FMLA") is a highly technical law. Despite the FMLA's massive web of regulations and Department of Labor opinion letters, it should be possible to comply with the extremely complicated requirements of the FMLA. Should . . . if you administered your FMLA policy in a vacuum. However, we know that is not the case. When an employee qualifies for FMLA leave, the employer might also have obligations to the employee under the Americans with Disabilities Act ("ADA"), to which the scope of this Law Update is limited. The Wisconsin employer also might have obligations under the Wisconsin Family and Medical Leave Act, the Wisconsin Fair Employment Act, the Workers' Compensation Act, short-term and long-term disability policies, and any rights contained in a collective bargaining agreement. This is where the dance begins.
Rep. Ted Poe Introduces ADA Bill To Curb Lawsuits
Talk Radio News Service
"This legislation restores the purpose of the ADA: to provide access and accommodation to disable Americans, not fatten the wallets of attorneys," said Congressman Poe.
Discrimination Lawsuit: Starbucks Fired Deaf Worker Who Asked For Sign Language Interpreters
The Consumerist
An Arizona woman who worked as a Starbucks barista for seven years has filed a lawsuit against the company for allegedly discriminating against her because she’s deaf. She claims she repeatedly asked for reasonable accommodations to help her on the job and was repeatedly denied, and that she was finally fired because of her disability.
Defining ADA disabilities in a DSM-V world
Lexology
Charles Dickens and his characters lived in a pre-ADA world. Yet, those struggling with the definition of “disability” under the ADA share the same frustration as Mr. Bumble in Oliver Twist: “‘If the law supposes that,’ said Mr. Bumble, squeezing his hat emphatically in both hands, ‘the law is a ass — a idiot.’”
Under the Americans with Disabilities Act (“ADA”), a “disability” includes “a [] mental impairment that substantially limits one or more major life activities of such individual[.]” 42 U.S. C. § 12102(1)(A). The EEOC recognizes the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (“DSM”) as “relevant for identifying these disorders” and “an important reference by courts.”
With the DSM’s fifth edition (“DSM-V”), the list of such qualifying disorders includes not only binge eating disorder but also caffeine withdrawal. Having lost an intra-office wager on that point, my penalty is to draft a position statement to the EEOC in an imaginary case advocating that, as a matter of law, caffeine withdrawal is not an ADA-covered disability, such that coffee-drinkers (like myself) who forego their morning joe are not entitled to an accommodation.
Refused a tattoo for being HIV-positive
QSaltLake
I was about to get a tattoo. I was excited and nervous because it had been a while. I was also worried about another thing that always looms ominously over my head. I am HIV positive. My fiancé reassured me, unknowingly, that it should be ok and I should tell the tattoo artist the day of the tattoo, because I wanted to have them be aware of my status. Thinking my status would be met with the same professionalism the healthcare field usually uses. Which is where everything went wrong. When I went into Six Feet Below Tattoo & Piercing in Clearfield, Utah on October 8th, nervous about the tattoo, and nervous about telling another person I don’t know something so personal, I was met with ignorance. In a field where blood exposure is common, universal precautions should always be in place. In this I felt like the tattoo artists at this shop dabble, because they turned me away due to my status after questioning the artist on their form. The form has a line stating “I DO NOT HAVE…. Etc.” HIV/AIDS is listed among other blood borne illnesses. The reason the artist used is this:
Our shop policy is that we do not tattoo anyone with a blood borne illness. It poses a risk of contamination to the entire shop. It doesn’t matter that you are undetectable, we cannot tattoo you because you could contaminate the entire shop.
JD Supra
ootball powerhouse USC (University of Southern California) fired its head football coach Steve Sarkisian on October 12, 2015, after it was widely reported that the coach had been under the influence of alcohol during several team events. His termination can teach a lesson to any employer who wonders how it should handle the sometimes-touchy situation involving possible alcohol abuse by an employee. This article presents the five things you need to know in order to navigate this problem.
MN Chamber of Commerce Working to Deal with String of ADA Lawsuits
KAALtv.com
The Minnesota Chamber of Commerce is partnering with the Minnesota State Counsel to cut down on disability compliance lawsuits in greater Minnesota.
Earlier this year, we told you about a group of activists filing several lawsuits against Rochester businesses, because their facilities were not in compliance with the Americans With Disabilities Act.
These businesses were typically built before the ADA became federal law in 1990. The Minnesota Chamber wants the businesses to be able to fix their violations before litigation or a quick settlement.
"The hope is that we could produce some meaningful legislation for the next session," says Minnesota Chamber President Doug Loon. "We're still working on that with the Minnesota State Council for the disabled."
The chamber president says the legislation would create a notification process before a lawsuit could be pursued. He says similar legislation was passed in California after businesses there were hit with a string of ADA lawsuits.
Also, the lawyer behind many of those lawsuits is under investigation for abusing the court system. Paul Hansmeier is accused of pressuring business owners into quick settlements instead of actual ADA compliance.
How to Manage Diabetes at Work
U.S. News & World Report
Your rights. You have the right to ask your employer for reasonable accommodations. Accommodations are adjustments to a job or the work environment that allow employees with disabilities to perform required job functions. Sometimes, individuals are afraid to speak with their employer about their diabetes needs because they fear they might lose their job. Employers are required, by law, to provide reasonable accommodations; they are also prohibited from taking any form of retaliation.
You are responsible for making the accommodation request to your employer. Although not required, it is highly recommended that you provide your request in writing. The request should describe how diabetes is a disability, list the accommodations needed and explains how they will assist with safe job performance.
Common accommodations include:
- Breaks to check blood sugar, eat, take medication or go to the bathroom.
- Ability to keep diabetes supplies and food nearby.
- Ability to test blood sugar and inject insulin anywhere at work. If preferred, a private area to perform these tasks.
- Leave for treatment or training on diabetes management. No penalty for absences related to diabetes.
- Opportunity to work a standard shift instead of a swing shift.
- For individuals with diabetic neuropathy (a nerve disorder), permission to use a chair or stool instead of standing.
- For individuals with diabetic retinopathy (a vision disorder), large screen computer monitors or other assistive devices.
Lawsuit Prompts District's $190K ADA Upgrades
Athletic Business
The Springfield School District is spending nearly $190,000 to add wheelchair-accessible drinking fountains and restrooms near the Lanphier High School gymnasium.
The project stems from an ongoing federal lawsuit a Lanphier parent filed last year alleging that the school does not meet the requirements of the 1990 Americans with Disabilities Act.