EEOC Sues Retailer of Luxury Crystal Products for Race and Disability Harassment
According to the EEOC's complaint, Baccarat staff made derogatory and offensive comments on a near-daily basis about the employee's race. Also, the two harassing co-workers repeatedly made unfounded, derogatory comments related to the employee's dyslexia, including demeaning statements about his intellectual ability.
Can requests for PPE or to stay home raise issues under the ADA?
ADA Reasonable Accommodation Request
There may also be employees who invoke the Americans with Disabilities Act (ADA) as a means of seeking an alteration to their normal working conditions. Generally, under the ADA, an individual is considered “disabled” if an impairment substantially limits one or more “major life activities,” which includes the functions of the immune system — i.e., an impairment that limits the immune system will qualify as a disability under the ADA. These disabilities can be the result of certain cancer treatments, persistent viral infections, or genetic disorders that suppress the immune system. Moreover, because of the low bar for qualifying as disabled and the long list of risk factors associated with COVID-19, like asthma and diabetes, large portions of the population may have the right to request a disability related accommodation in this context.
Employees who qualify as disabled may claim to be particularly susceptible to infection and thus require a modification of their workplace or working conditions as an accommodation. Once an employee makes a request for an accommodation, it is incumbent on the employer to engage in an interactive process with the employee to assess their particular limitations, and whether an accommodation can be provided. The important things to remember here are that a request for an accommodation may be subtle or implied, and the process used to decide whether an accommodation can be made is just as important as the ultimate decision.
Although each situation will likely call for a particularized analysis, some steps that employers have taken to accommodate employee requests in this area are:
- Providing enhanced PPE;
- Increased social distancing and sanitation measures;
- Modification of schedules (i.e. rolling or staggered shifts);or
- Working from home.
Of course, the accommodation has to be reasonable and cannot impose an undue burden on the employer. An employer is not required to create a new position to accommodate a disabled employee and cannot be forced to supplant other employees from their positions. Also, an employee must be qualified for the position to which they seek to be reassigned. If the employee is qualified for a number of suitable alternative positions, then the employer can choose among those options, so long as it is reasonable.
In most circumstances, an employee cannot simply refuse to work because of a disability, but it might be reasonable to grant a temporary leave of absence. If they are unable to work because their disability puts them at too great a risk to physically appear at the jobsite, the employee may also be entitled to Emergency Sick Pay under the Families First Coronavirus Response Act and job protection under the FMLA and ADA.
Returning to Work: Can Employers Still Require Doctors’ Notes from Employees Who Test Positive for COVID-19?
The federal Equal Employment Opportunity Commission (“EEOC”) is charged with responsibility for enforcing the Americans with Disabilities Act (“ADA”) and other federal laws prohibiting discrimination in the workplace. On March 19, 2020, the EEOC issued guidance on “What You Should Know About the ADA, the Rehabilitation Act, and COVID-19” (https://www1.eeoc.gov//eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm?renderforprint=1), which specifically addressed the question of whether the ADA allows employers to require doctors' notes in such circumstances, stating:
Yes. Such inquiries are permitted under the ADA either because they would not be disability-related or, if the pandemic influenza were truly severe, they would be justified under the ADA standards for disability-related inquiries of employees.
In recognition of the possible challenges employees might face in obtaining such documentation, the EEOC went on to suggest that employers should be flexible in the precise form such documentation might take, noting:
As a practical matter, however, doctors and other health care professionals may be too busy during and immediately after a pandemic outbreak to provide fitness-for-duty documentation. Therefore, new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp or an e-mail to certify that an individual does not have the pandemic virus.
Relying on this guidance and in an effort to protect their workforces from unnecessary exposure, many U.S. employers adopted practices or policies requiring employees to produce documentation from their health care providers certifying they were free from COVID-19 before allowing them to return to work after previously testing positive for it or showing symptoms of it. Their continued ability to do so, however, is in question based on apparently conflicting legal obligations placed on businesses by Stay at Home/Shelter in Place orders issued by governors of various states.
Worker Fired By Amazon For Medical Marijuana Wins Key Decision In Federal Court
A former Amazon warehouse worker who sued the company after allegedly being fired over his use of medical marijuana is better positioned to win the case following a procedural ruling by a federal judge on Thursday.
Last year, the ex-employee filed the suit, alleging that he was terminated after testing positive for THC and subsequently requesting a disability accommodation for his anxiety disorder to allow him to use cannabis in accordance with state law. And last week, he scored a small but significant procedural victory.
After he sued last year in New Jersey Superior Court, Amazon filed to have the case moved to the federal U.S. District Court, where the plaintiff stood little chance of winning given that U.S. law prohibits marijuana regardless of state policies. But in the latest development, the federal court granted the ex-worker’s request for a motion to remand, meaning the dispute will be kicked back to the state Superior Court for consideration.
The reason the judge granted the motion is because the plaintiff, who is known only by the initials D.J.C., filed to amend his suit by adding his former manager to it and removing references to the federal Americans with Disabilities Act (ADA). With those amendments, the suit side-stepped both factors that allowed Amazon to have the case transferred to federal court in the first place.
The most important factor is “diversity jurisdiction.” Because the original suit only named Amazon, which is not based in New Jersey, that meant it involved parties in two separate states, giving the federal court jurisdiction over the matter. By adding his New Jersey-based former manager, the court was “consequently deprived of diversity jurisdiction,” the decision by Judge William Martini said.
Matthew Collins, an attorney with Brach Eichler LLC who serves as chairman of the firm’s Labor and Employment Practice, told Marijuana Moment that the decision bodes well for the plaintiff.
The first simple fact is that the federal court would almost certainly not have ruled in the his favor under federal disability law, which doesn’t cover people using cannabis regardless of state policy, so the case being transferred back to the state Superior Court is already a positive development on its own for the former Amazon employee.
But more importantly, the stage was set for a positive ruling for the plaintiff in a separate New Jersey case last month. Not all legal marijuana states provide workplace disability protections for medical cannabis patients, and some courts have maintained that employers do not have an obligation to accommodate those patients—but the New Jersey Supreme Court ruled in March that the Garden State does.
In its ruling, the court concluded that the state’s existing disability protections mean that employers can’t fire someone solely for testing positive for marijuana if they’re a patient under the state’s program. They can still be terminated for being intoxicated on the job, but the precedent makes the plaintiff’s case much stronger.
“Especially in light of the New Jersey Supreme Court’s decision in March of this year, it now becomes the law of the land in New Jersey that employers have to reasonably accommodate medical marijuana usage,” Collins said. “The key thing for a plaintiff in this type of situation—including the plaintiff in the Amazon case—is that the court basically ruled that that obligation was always there to accommodate medical marijuana usage as soon as New Jersey passed its medical marijuana law.”
“The plaintiff’s case has only gotten legally stronger since March of this year,” he said. “It puts Amazon in this situation of being bound by legal precedent that wasn’t really clear in 2018, but they’re going to be bound by it in 2020 and going forward.”