Articles Posted in Disabilities (ADA)

Delaware’s General Assembly has passed a law “relating to the removal of insensitive and offensive language.”  When I first saw the title of this Act, I admit, I was alarmed that our State’s legislature was banning profanity in some context.  I was relieved to read the text of the law, though, and learn exactly what it actually does provide. logo_from_dev

According to the synopsis, the bill is part of a national movement, known as People First Language (“PFL”) legislation, intended to “promote dignity and inclusion for people with disabilities.”  PFL requires that, when describing an individual, the person come first, and the description of the person come second.

For example, when using PFL, terms such as “the disabled” would be phrased, “persons with disabilities.”  This language emphasizes that individuals are people first and that their disabilities are secondary.  I think this is an outstanding initiative.

When an employee seeks to return to work following a failed suicide attempt, there can be concerns about safety–both for the employee and for co-workers. At the same time, savvy employers know that the ADA may provide the employee with legal protections. A recent case in the Western District of Pennsylvania, Wolski v. City of Erie, provides an opportunity to review this potential conflict.

The plaintiff-employee, Wolski, who was the City’s first female firefighter, began to suffer from panic attacks and severe depression following the death of her mother in 2005. She took sick leave for several months, during which she was prescribed multiple medications by a psychiatrist.

After she failed to return to work as scheduled, she was granted additional time off. During this period of leave, she attempted suicide by disabling the carbon-monoxide and smoke alarms and setting a fire in her home. She survived the attempt and was hospitalized until early 2006. The fire was the subject of a criminal investigation.

Northern Delaware managed to escape Sandy largely unscathed, I feel very lucky to say. Our thoughts are with those who are still without power and, especially, with those whose homes were damaged by the storm. I am grateful to be able to return to work, though. In the spirit of maintaining normalcy, today’s post is not going to focus on hurricanes, floods, or other natural disasters. Just employment law. Stay safe, everyone.

No federal employment law expressly prohibits discrimination against an employee because of the employee’s involvement in domestic violence. For many employers, the idea of intentionally discriminating against a victim of domestic violence may be difficult to envision, even. I have seen this issue manifested in a few different contexts.

First, there’s the employee who is chronically absent from work as a result of domestic violence at home. In that case, the employer wants to know whether it is lawful to discipline the employee for her absenteeism, or whether it must permit her some type of leeway because the absences are not merely a result of the employee playing “hooky.” This question is particularly difficult when the employer’s attendance policy distinguishes between “excused” and “unexcused” absences.

Some people are real jerks. Anyone who deals with the general public for a living knows that this is an indisputable fact. For those who work in sales or service positions know that the theory “the customer is always right” can be a bitter pill to swallow. Every waiter, store clerk, and receptionist has had a moment where they had to swallow very hard to resist firing back at an irate and/or irrational customer who’s decided to take out his or her frustrations on whoever happens to be in their line of vision. Most of the time, it is not possible or not wise to fight back.

But, sometimes, it is.

Take, for example, Jennifer Livingston, a TV news anchor in LaCrosse, Wisconsin. A viewer with, apparently, way too much time on his hands, took it upon himself to write Ms. Livingston a note to express his displeasure with her weight. “Obesity is one of the worst choices a person can make and one of the most dangerous habits to maintain,” wrote the viewer. “I leave you this note hoping that you’ll reconsider your responsibility as a local public personality to present and promote a healthy lifestyle.”

Can a Facebook friendship between an employee and her supervisor lead to a claim of disability discrimination under the Americans With Disabilities Act (ADA)? Have a look at the facts in a recent case from a federal court in Seattle, Washington and you can decide for yourself.

The plaintiff, Ms. Peer, was employed by F5 for just a month when she told the company that she was experiencing chronic pain and, as an accommodation, requested that she be permitted to work a reduced schedule. The employer obliged and Peer began working 30 hours per week, using paid and unpaid time off to cover the 10 hours per week that she needed to retain her full-time status.

After two months on a reduced schedule, Peer was diagnosed with major depression. The following month, she was released to return to her 40-hour week. A few weeks later, she was assigned to an early shift–6 am to 3 pm. She emailed her supervisor:

Employer’s lawyers have seen an increasing number of questions regarding the obligations relating to employees and applicants returning from military service. There are two important laws that may apply to such individuals–the ADA and USERRA. Although the ADA has been on employer’s radar for years, most are less familiar with USERRA. Now is the time, though, to become familiar. The law imposes many obligations on employers and many of those obligations are different than other employment-discrimination laws.

The EEOC has published a new Guide for Employers titled, Veterans and the ADA. The Guide is intended to provide answers to some of the questions employers can be expected to face as veterans return home from military service and seek employment in the private sector. Some of the points covered by the Guide include:

  • What qualifies a disabled veteran for the protections of the ADA;

A recent opinion from the U.S. Circuit Court of Appeals for the Ninth Circuit has clarified employer liability under the Americans with Disabilities Act, where the employer requires drug testing as a prerequisite to employment. In Lopez v. Pacific Maritime Associates, the plaintiff challenged a union’s one-strike rule, which provided that one positive drug or enchained by the lawalcohol test during pre-employment testing permanently prohibited hiring of the applicant.

In this case, the plaintiff applied for work as a longshoreman in 1997, but was rejected after he tested positive for marijuana. After seeking treatment for his drug addition, the plaintiff again applied in 2004, but was denied under the union’s one-strike rule.

In response, the plaintiff sued under the ADA, alleging that he had suffered discrimination on the basis of a disability–his previous drug addiction. The plaintiff alleged both disparate treatment and disparate impact. In reviewing the appeal, the Ninth Circuit rejected the plaintiff’s disparate treatment assertions on several fronts. First, the Court held that because the on-strike rule denied employment to both addicts and recreational drug users, it did not discriminate on the basis of addiction. In reaching its holding, the Court emphasized that “the ADA prohibits employment decisions made because of a person’s qualifying disability, not decisions made because of factors merely related to a person’s disability.”

A bill to permit the use of marijuana for medical purposes was introduced in the Delaware General Assembly yesterday. Senate Bill 17, if enacted, would create an exception to Delaware’s criminal laws by permitting the doctor-recommended medical use of marijuana by patients with serious medical conditions. A patient would be protected from arrest if his or her physician certifies, in writing, that the patient has a specified debilitating medical condition and that the patient would receive therapeutic benefit from medical marijuana. 3d doctor running

Patients would be allowed to possess up to 6 ounces for their medical use. The legislation allows them to designate a caregiver who would also receive an ID card. Each caregiver may assist no more than five qualifying patients. The legislation would also allow for the state-regulated, non-profit distribution of medical marijuana. The Department of Health and Social Services would issue registration certificates to qualified applicants.

SB 17 also contains restrictions on the medical use of marijuana, including prohibitions on public use of marijuana and driving under the influence of marijuana.

The Third Circuit Court of Appeals recently ruled that side effects from medical treatment may constitute an impairment under the Americans with Disabilities Act (the “ADA”). The 3d Circuit’s decision in Sulima v. Tobyhanna Army Depot is clear that, under limited circumstances an employee-plaintiff may have a cause of action under the ADA if he can prove that the effects of medical treatment are truly disabling, even if the underlying condition is not.

Facts

The employee-plaintiff worked for Defense Support Services, a defense contractor which provided workers at the Tobyhanna Army Depot. The employee was morbidly obese and suffers from sleep apnea. At the time, the employee was taking weight-loss and related medications which caused him to take frequent restroom breaks. When asked about the frequent breaks, the employee told his supervisor that they were the result of his medication. He later provided his supervisor with a doctor’s note, which stated that the employee may need to use the restroom frequently due to a “gastrointestinal disorder.” The employee told his supervisor that he was not sure how long he would need the medication and that he was going to find out if he could take an alternative medication.

After employee continued to take frequent restroom breaks (some days for a total of two hours during his shift), a supervisor asked that he be transferred to a different work area. When he found out about the transfer, the employee submitted another note from his treating physician, which indicated that his mediation had been changed and that he no longer needed frequent restroom breaks. The decision was made to transfer him anyway but there were no available positions at the Army Depot and the employee accepted a voluntary layoff.  He later filed a claim in federal court, alleging violations under the ADA and the Rehabilitation Act.

[read on to learn how the Third Circuit ruled. . . ]

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 Colwell v. Rite Aid Corp., is an accommodation case brought under the Americans With Disabilities Act (ADA), recently decided by the Third Circuit, which hears appeals from the federal courts of Delaware, Pennsylvania, and New Jersey. Jon Hyman, at the Ohio Employer’s Law Blog, was the first to post about the Colwell opinion, noting that the decision offers employers some key reminders about best practices when dealing with an employee’s request for accommodations made pursuant to the ADA.

Facts

The plaintiff, Colwell, was hired in April 2005 as a part-time clerk at one of Defendant Rite-Aid’s stores. Her schedule varied but she generally worked the 9 a.m. – 2 p.m. shift or the 5 p.m. – 9 p.m. shift. During the summer, she was diagnosed with retinal vein occlusion and glaucoma in her left eye and she later lost vision in her left eye. As a result, she could no longer drive at night.

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