Settlement Agreement:
Judge denies U.S. request to block Honeywell wellness program
Minnesota Public Radio News
A U.S. district judge in Minneapolis is allowing Honeywell to begin penalizing workers who refuse to submit to biometric or medical tests. A federal agency had asked the judge to block the program.
The case will continue to move forward in the court.
EEOC Settles Case Of Fired Employee With Fibromyalgia
Mondaq News Alerts
In a post last March we stated:
Takeaway: Train your managers and staff in the ins and outs of the ADA; always engage in an interactive process re seeking a reasonable accommodation for employees with disabilities; and do not rely upon stereotypical assumptions about people with disabilities.
This takeaway was occasioned by an EEOC announcement of a new lawsuit against a Minneapolis-area home health care provider for failing to provide a reasonable accommodation to a housekeeping employee who suffered from fibromyalgia and osteoarthritis — and then firing her.
The EEOC alleged that two other employees – a registered nurse/supervisor and a community relations specialist – observed her walking with a cane and complained to the owner, who then fired her.
The employee's disability substantially limited her walking and bending, but did not affect her job performance for the years that she worked at the home.
At the time, an EEOC lawyer said that "There does not seem to have been any interactive process here for the employer and employee to assess whether [the employee's] use of a cane interfered with her ability to perform her job, or to consider some other reasonable accommodation for her disability."
And another EEOC lawyer said: "Here's a case where an absence of information and a reliance on stereotypes led to trouble for both employer and employee. When management heard [the employee] used a cane, it assumed that she could not do her job. So they put her on the street and the company is now in litigation – not a happy result for anyone. That's what happens when employers fail to make analysis of job performance and available accommodations a high priority."
Wal-Mart, EEOC Reach Accord In Drug Test “Accommodation” Lawsuit
JD Supra
Laura Jones was offered a sales job at the Wal-Mart store in Cockeysville, Maryland, and was told that she would have to take a drug test. According to the U.S. Equal Employment Opportunity Commission, Ms. Jones told an assistant store manager that she had end stage renal cancer, which prevented her from taking a urine test. The EEOC says that Jones then went to the drug testing collection center and requested that an another type of test be performed, which the center said could be done if Wal-Mart ordered it. She then allegedly took that information back to the store, but was allegedly told that “corporate” would not allow an alternate test.
Eden: Urine drug testing latest ADA battleground
Opelika Auburn News
Nassar A Year Later: Pennsylvania ADA Retaliation Case Considers Impact of Supreme Court's Decision
The National Law Review
Readers will recall a flurry of U.S. Supreme Court decisions as the Court’s term ended in mid-2013. One of these decisions was University of Texas Southwestern Medical Center v. Nassar – this week’s letter of the law is N for Nassar. In Nassar, the Court held that Title VII retaliation claims should be decided under a “but for” rather than “motivating factor” causation test. This is one of those decisions where almost anybody but an employment lawyer thinks, “That’s nice – what’s that mean?” Generally it does not mean much for employers in their day to day management of employees, but it should mean that employers will win a few more cases in court. As with an high court decision, the real impact is not known until lower courts have interpreted it for a few years.
Last week’s federal court decision in Berkowitz v Oppenheimer Precision Products, Inc. is one recent look at this still-new case. Berkowitz is not a Title VII case, but rather an ADA and FMLA case. The employee suffered from various health issues, and it seemed undisputed that he was disabled under the ADA. He was fired several days after returning from a medical leave and informing management that more leave might be needed. The stated reasons for termination was inappropriate workplace behavior, including verbal abuse of others. Berkowitz countered that his employer had tolerated such behavior years and terminated him only in close proximity to his use of leave and anticipation of further leave. The Eastern District of Pennsylvania denied the employer’s motion for summary judgment and said the case should proceed to trial.
Berkowitz highlights two points about what Nassar means to employers:
As noted above, Nassar is a Title VII and does not on its face apply to ADA claims. Often decisions under one employment law are extended to other laws, and the employer argued that the same is true here and cited court decisions in support of that. It seems likely that Nassar will ultimately be extended to retaliation claims under the ADA, but the court in Berkowitz in effect passed on this issue.
Instead, the court said that it would deny summary judgment on the retaliation claim under the more pro-employer Nassar“but for” standard anyway. This highlights that pro-employer procedural decisions do not change the general rule that cases involving employee health issues are usually more about the facts – the documentation of performance issues relied upon, being able to explain why might appear to be changes in the employer’s approach as the employee claimed in Berkowitz(successfully, at least at this stage), and the interactions with the employee to demonstrate that the employer properly considered potential obligations under the ADA and FMLA.
Employers dealing with situations like the employer in Berkowitz might consider posts such as this one, or click on the Employee Health Issues topic and browse those cases.
JD Supra
In July of this year, we wrote about new EEOC guidance on the accommodation of pregnant employees under both the Americans with Disabilities Act (ADA) and Pregnancy Discrimination Act (PDA). One of the primary issues addressed in the EEOC's guidance was the accommodation of pregnant employees under the PDA on the same basis as disabled employees; in other words, whether a non-disabled pregnant employee can claim gender discrimination if he or she is not provided the same accommodations as a disabled employee. The EEOC stated that she can, equating any policy that denies such accommodation to intentional gender discrimination. (As we wrote at the time, one dissenting Commission member referred to this controversial new position as “me too” coverage – “whatever a person with a disability under the ADA is entitled to, I’m entitled too, to.”)
Anaheim, Arena Firm to Pay $480K in ADA Settlement
Athletic Business
The city and Anaheim Arena Management will pay the $460,000 settlement for two federal lawsuits that accused the Honda Center of violating the Americans with Disabilities Act.
In addition, a wide range of changes to parking, ticketing, concessions and employee training at the city-owned venue must be made.
Even though the City Council quietly approved the settlement in September, officials this week released documents outlining the agreement's terms.
Under Disability Law, the Customer Might Be Wrong
Corporate Counsel
“The customer is always right” is a business motto that’s meant to show a company is committed to good service. However, it’s clear from a recent case the U.S. Equal Employment Opportunity Commission brought in Florida that keeping the customer satisfied isn’t always the best way to go. In fact, it can lead to breaking the law.
By firing a disabled employee based on customer feedback, Florida Commercial Security Services Corp. got itself into trouble under the Americans with Disabilities Act, and now will be paying handsomely for its mistake. The case serves as a reminder that when dealing with employees who have a disability, employers have to follow the letter of the law.
Voting Can Be Challenging For People With Disabilities On Both Sides of State Line
KCUR
The 1990 Americans with Disabilities Act (ADA) explicitly spells out federal requirements for accessibility to polling places.
Election polls, like grocery stores and libraries, are places of public accommodation and covered by the ADA.
Advocates for those with disabilities in the metro say while election boards are generally trying to meet these requirements, challenges remain.
Modesto Bee
A workshop aimed at helping businesses ward off disability access lawsuits will be held Thursday in Riverbank. More lawsuits based on the Americans with Disabilities Act are filed in California than any other state, and more than 50 have been brought against companies in Stanislaus and Merced counties.