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People First Language: Delaware Legislation Gets It Right

Posted by Molly DiBiancaOn July 1, 2014In: Delaware Specific, Disabilities (ADA), Legislative Update

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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.  People First Lanuauge

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.

First, it is far easier to do (or say) the right thing when we know what the right thing is.  So legislation like this, which makes clear what is (and is not) the right thing to say, is always helpful.  Second, I think the approach is spot on.  Individuals are people first. The same concept applies to all protected characteristics. 

I have received countless calls from clients seeking advice with regard to a potential termination of an employee.  The call often starts out like this: “We have an employee who is in a protected class and who is always late to work and who constantly undermines her coworkers.”

If the PFL concept were applied, the call would start out, instead, like this: “We have an employee who is always late to work and who constantly undermines her coworkers.” 

What matters is what the employee is doing (or failing to do) with respect to her job—not that she is “in a protected class.”  Start off by addressing what actually matters.  Everything else, including a discussion about potential accommodations, etc., will follow if and when it’s appropriate. 

See also, previous posts regarding Disabilities in the Workplace.

Attempted Suicide and the ADA

Posted by Molly DiBiancaOn December 2, 2012In: Disabilities (ADA), Discrimination

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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.

In early March, when Wolski asked the Chief when she could return to work, he indicated that she was not likely eligible to return until the conclusion of the investigation. On April 3, Wolski ran out of sick leave and was placed on administrative leave. On April 11, after she was formally cleared in the investigation, Wolski was fired. In the termination letter, the Chief explained that Wolski was being fired as a result of her suicide attempt in December:

. . . you started a fire in your residence, having disconnected the smoke detectors and carbon monoxide detectors, and took an overdose of medication as a suicide attempt. Family members extinguished the fire, but the City firefighting crew was dispatched to your home; and you were taken by helicopter to Pittsburgh for emergency medical treatment to save your life.

This incident renders you presumptively unsuited to be a firefighter, as you pose an ongoing threat to the safety of the public, other firefighters and yourself, having set a fire in a residence . . ..

Wolski filed suit alleging that her termination violated the ADA. The case went to trial but a retrial was ordered based on improper jury instructions, so the court's opinion does not address the question of liability. In the Wolski case, the employer argued, unsuccessfully, that the decision to terminate was not based on the employee's suicide attempt but because of her having set the fire.

But this is not the usual case. More commonly, the employer is worried that the employee will attempt to harm herself again and, in the course of doing so, may harm others. The EEOC addresses this in its Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities:

35. Does an individual who has attempted suicide pose a direct threat when s/he seeks to return to work?

No, in most circumstances. As with other questions of direct threat, an employer must base its determination on an individualized assessment of the person's ability to safely perform job functions when s/he returns to work. Attempting suicide does not mean that an individual poses an imminent risk of harm to him/herself when s/he returns to work. In analyzing direct threat (including the likelihood and imminence of any potential harm), the employer must seek reasonable medical judgments relying on the most current medical knowledge and/or the best available factual evidence concerning the employee.

According to the EEOC's Guidance, the ADA prohibits an employer from terminating an employee because of an attempted suicide. Although the employer's concerns about safety may be well intended, they are not a basis for an adverse employment decision. One purpose of the ADA is to ensure that employers do not substitute their own judgment about "what is best" for an employee and, instead, let the employee and the medical professionals make those determinations.

Wolski v. City of Erie, Case No. 1:08-cv-289-SJM (W.D. Pa. Sept. 28, 2012).

H/T Mitchell Rubinstein at the Adjunct Law Prof Blog

Employment Discrimination and Domestic Violence

Posted by Molly DiBiancaOn October 30, 2012In: Disabilities (ADA), Discrimination, Discrimination & Harassment, Gender (Title VII)

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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.

Second, there's the employer who wants to terminate an employee who is involved with a violent domestic partner for fear that the partner will carry out a violent act in the workplace. This usually arises when the employer learns that the partner has been stalking the employee, often on or just outside the employer's property. In that case, the employer is concerned about protecting its employees and wants to prevent a workplace shooting or similarly tragic event. This issue is as complicated as the first scenario, above, because it proposes that it is better to save the flock than a single sheep.

But where does Title VII and the ADA come into play in these and other situations involving domestic violence? The EEOC's most recent fact sheet addresses this question and offers some thought-provoking answers. The fact sheet offers some examples of how the federal anti-discrimination laws may apply to employment situations involving applicants and employees who experience domestic or dating violence, sexual assault, or stalking. Many of the examples are not as much about domestic violence as they are about anti-retaliation and anti-harassment. For instance, the fact sheet explains that an employee who is given less favorable assignments after reporting that she was raped by a manager during a business trip. This example is, in my opinion, a bit obvious and not precisely within the framework of domestic-violence discrimination.

But a more provocative item on the fact sheet is the "Answer" that concludes that an employer who terminates an employee after learning she has been subjected to domestic violence, saying that he fears the potential 'drama battered women bring to the workplace.' On the whole, I would agree that this sort of gender-based stereotype likely violates Title VII. The trouble that I have with it, though, is that it's a bit conclusory on the question of intent.

I can easily imagine a scenario like the one I described above, when an employer decides to terminate a female employee whose husband has appeared at the workplace and threatened the employee or even her coworkers. Worried about the likelihood of future disruptions and potential violence, the employer considers whether it owes a duty to its other employees to prevent such incidents by terminating the victim. Although it would be easy to assume the worst by concluding that the employer just wanted to avoid the "drama" associated with battered women, it may be a more legitimate fear that drives the employer's decision.

Employment decisions are never easy. Employers often have to make tough calls and, rightfully so, worry that their choices will be later challenged as unlawful. The best starting point for these tough choices is to ask, "what's fair?" It's no coincidence that an honest answer to that question also is usually the most legally defensible position.

Fighting Back: Bullies and Obesity

Posted by Molly DiBiancaOn October 3, 2012In: Disabilities (ADA), EEOC Suits & Settlements, Hiring, Jerks at Work, Off-Duty Conduct

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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."

I think it's fair to say that Ms. Livingston didn't find the viewer's "concern" all that heartwarming. Heck, it may have even hurt her feelings. But, instead of hiding her pain, she elected to take a different approach and responded to the comments on the air. Her response took the form of an articulate call to arms in which she accused the viewer of being a bully.

I think the story is inspiring for a number of reasons but it also highlights a few different current issues in employment law.

First, there's the continuing discussion surrounding bullies in the workplace or, as I like to call them, "jerks at work." Legislation has been introduced in numerous states over the past five or so years that would, in short, make it unlawful to be a jerk at work. I think there are obvious problems with trying to legislate "jerkiness" but I also recognize the high costs that jerks can have on workforce morale, creativity, and overall productivity. This post at Above the Law provides a recent summary of the various legislative efforts.

Second, there's the as-yet-unresolved question of whether obesity is a disability under the Americans With Disabilities Act (ADA). Historically, courts have been unwilling to include obesity as a protected disability. With this precedent in mind, some employers have refused to hire applicants who are obese and charge higher health-care premiums for overweight employees. But the EEOC has said that the ADA does protect individuals who are morbidly obese. A case filed last year by the EEOC asserting that "severe" obesity was a protected disability under the ADA, recently resulted in a $55,000 settlement for the employee. And a recent decision by the Montana Supreme Court seems to further support that the trend has shifted towards protecting obesity as a disability.

Facebook Message Leads to Disability Claim

Posted by Molly DiBiancaOn April 20, 2012In: Disabilities (ADA), Social Media in the Workplace

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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:

this shift is really stressing me out and exhausting me . . . [and] . . . the thought of having to do it for another 6 or 8 months or longer is making me really depressed.

The following day, she sent a Facebook message to her boss, apologizing for her email the day before and stating:

. . . I start crying the instant my alarm goes off in the morning and don't stop until I finally get to sleep at night. All I do all day at work for the past week is dream up practical ways to kill myself that won't require the people I love to clean up the mess. I've thought about going to the hospital, but don't think it would do me much good since I'm allergic to most psychotropic drugs, and that's really all they could do for me anyway . . .

A few days later, she posted on her Facebook page that "work feels like a war zone. I have some serious PTSD. Walked in the building and automatically started puking this morning."

HR met with the employee and told her that she was being placed on paid leave for two days to enable her to meet with her doctor. HR also told her that she would not be permitted to return to work until obtained a "valid work release" from her doctor. Peer provided a letter the next day from her doctor confirming that Peer was released to return to work full time. She was told she was not allowed to return to work due to her "suicidal thoughts."

Over the next three weeks, Peer attempted to return to work unsuccessfully. She spoke to HR several times in an attempt to clarify what exactly she was required to do to be cleared to return. HR's response was a confusing one (and, dare I say, sounds like it was written by a lawyer), telling Peer only that she needed to participate in the "interactive process" but not telling her how exactly she could fulfill that obligation.

Eventually, she was fired because she had failed to "address the issue of whether [she]remained a threat of harm." She filed suit under the ADA. After discovery was complete, the employer filed a motion for summary judgment. The court denied the motion, finding that there was a triable issue as to whether the employer satisfied its duty to engage in the interactive process with the employee to determine if an appropriate reasonable accommodation could be made.

So what can we learn from this case?

First, this case serves as an excellent reminder of what the ADA requires. The key to the interactive process" is that it must be interactive. Here, the employer gave vague and ambiguous answers to the plaintiff's requests for information about how she could return to work.

Second, I can't help but wonder how much of this case could have been avoided altogether if the employee had not been Facebook friends with her supervisor. Because of this online connection, she was able to send the supervisor the message that seems to have triggered the employer's actions.

In short, put this case in the column of "cons" when it comes to supervisors and their direct reports being Facebook friends.

Peer v. F5 Networks, Inc.,
No. C11-08790-JCC (W.D. Wash. Mar. 19, 2012)

Resources for Employers: Applicants and Employees Returning from Military Service

Posted by Molly DiBiancaOn March 5, 2012In: Disabilities (ADA), Uniformed Services (USERRA)

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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;

  • Information about hiring preferences for disabled veterans;

  • When and how an employer may ask whether a veteran with a disability needs an accommodation;

  • Some of the basic differences between the ADA and USERRA.

The Guide includes references to several helpful online resources--all of which are free. One of the references is to the U.S. DOL's VETS program. Once on the VETS site, be sure to bookmark the Pocket Guide to USERRA, a detailed and fairly comprehensive FAQ about USERRA's requirements.

ADA and Drug Addiction: The Ninth Circuit Provides Guidance

Posted by Lauren Moak RussellOn March 15, 2011In: Disabilities (ADA), Discrimination

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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."

Second, the Court concluded that there was no evidence to indicate that the union imposed the one-strike rule with the intention of excluding recovering addicts from the workforce. Instead, the Court found that the one-strike rule was tied to a history of injuries and fatalities in the longshore industry, resulting from the use of drugs and alcohol in the workplace.

Finally, the Court found it significant that the union did not learn of the plaintiff's addiction until after it had again denied him employment in 2004. In the absence of knowledge about his disability, its decision could not have been based on discriminatory animus.

With regard to his disparate impact claim, the Court rejected the plaintiff's argument that the one-strike rule disproportionately impacted recovering drug addicts, because plaintiff did not provide any relevant statistical evidence in support of his allegations.

The Ninth Circuit's opinion should reassure those employers who engage in non-discriminatory drug testing. As we already know, if your drug testing policy applies to all employees meeting certain neutral criteria (e.g. all job applicants, or all employees involved in workplace accidents) your conduct is lawful under the ADA. While the one-strike rule addressed by the Ninth Circuit is severe, the Court's opinion is in keeping with previous ADA jurisprudence protecting employers who drug test job applicants and employees under facially-neutral circumstances.

Delaware Legislature Buzzing Over Medical Marijuana

Posted by William W. BowserOn January 26, 2011In: Disabilities (ADA), Legislative Update, Locally Speaking

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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.

While the bill states that employers are not required to allow patients to be impaired at work or to allow the possession of marijuana at a workplace, it does not address how employers are to deal with employees who test positive for marijuana or ask for accommodations under the ADA.

Other States' Laws

Delaware joins a growing list of States proposing or enacting medical marijuana laws. Last year alone, about 12 additional states considered legislation or ballot initiatives that would legalize medical marijuana

Some states have already enacted legislation. Earlier this year, New Jersey and the District of Columbia signed medical marijuana legislation into law. Two additional states, though not specifically legalizing medical marijuana, have passed laws that are favorable to its use. Maryland recognizes medical use as a defense in court, while Arizona allows doctors allows doctors to prescribe marijuana (though federal law prohibits doctors from doing so).

Other Legal Issues, From ADA Accommodation to Safety

Legal questions are sure to arise regarding whether employers need to make accommodations under the Americans with Disabilities Act (ADA) for employees who use medical marijuana, either on or off the job, to treat disabilities caused by their medical conditions. At least one state supreme court has ruled that employers don't need to make such accommodations. Because the ADA doesn't require accommodations that would create a threat to employee safety or unreasonable risk of harm, some employers could argue that accommodating an employee who tests positive for marijuana use or allowing such use in the workplace creates a dangerous environment.

Speaking of dangerous environments, an added concern for employers of medical marijuana patients is workplace safety. Employers must still meet Occupational Safety and Health Administration and other federal regulations for safety, especially when employees perform potentially dangerous jobs such as operating heavy equipment, machinery, or motor vehicles as part of their job duties.

See also Wilmington News Journal's coverage of Montel Williams' visit to Dover, Delaware, in support of SB 17

Third Cir. Rules that Side Effects from Treatment May Be an ADA Impairment

Posted by Maribeth L. MinellaOn May 10, 2010In: Cases of Note, Disabilities (ADA)

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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.


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. . . ]

Continue reading "Third Cir. Rules that Side Effects from Treatment May Be an ADA Impairment" »

3d Cir. Finds Accommodation Required for Employee Without a Ride to Work

Posted by Molly DiBiancaOn April 16, 2010In: Disabilities (ADA)

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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.


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.

Because she lived in an area without public transportation or taxis, Colwell had no reliable way to get to work for the evening shift. She asked to be assigned only to the day shifts but her supervisor refused, saying that it “wouldn’t be fair” to other employees. Colwell provided her supervisor with a doctor’s note as proof that she could not drive at night. Again, her supervisor declined Colwell’s request to be assigned only to day shifts. Colwell had to rely on family members to transport her to and from work on the days she was scheduled to work at night.

Colwell contacted her local union representative, who tried unsuccessfully to convince the supervisor to accommodate Colwell’s request. The union rep set up a meeting for him and Colwell to meet in person with the supervisor but he failed to show up and the meeting was canceled.

Colwell, who had grown weary of the whole situation, submitted her letter of resignation. She filed suit a few months later.

The Employer’s Argument

As its defense to Colwell’s claims, Rite Aid argued that it had no duty to accommodate Colwell’s request because an employee’s commute to and from work is not sufficiently related to the job and, therefore, not the proper subject of an accommodation. This is an important point. The parties agreed that Colwell did not need an accommodation once she got to work—the question in this case was whether the employer had a duty to provide an accommodation to enable her to get there in the first place. The trial court agreed with Rite Aid, and held:

the ADA is designed to cover barriers to an employee’s ability to work that exist inside the workplace, not difficulties over which the employer has no control.

The district court went on to find that imputing a duty to accommodate Colwell’s request was tantamount to “mak[ing] an employer responsible for how an employee gets to work, a situation which expands the employer’s responsibility beyond the ADA’s intentions.” Colwell appealed.

The Third Circuit’s Ruling

On appeal, the question before the Third Circuit was “whether a shift-change request can be considered a reasonable accommodation for an employee who cannot drive at night” because of a disability. Before the Third Circuit, Rite Aid argued that it did not have a duty to accommodate Colwell’s request. In fact, it argued, it did not have a duty to even consider her request because her “difficulties amounted to a commuting problem unrelated to the workplace and the ADA does not obligate employers to address such difficulties.”  The Third Circuit disagreed and ruled that, as a matter of law:

the ADA does contemplate an accommodation that involves a shift change to “alleviate [an employee’s] disability-related difficulties in getting to work.”

Here’s the basic rationale.

First, the court pointed to language in the ADA that specifically provides that a shift change may constitute a “reasonable accommodation.” Thus, a change in shifts is a change in a workplace condition entirely under the employer’s control.

Second, the court explained that, despite Rite Aid’s argument to the contrary, the scheduling of shifts is something done inside the workplace. The court distinguished this from an employee’s request for assistance in getting to work. For example, an employer would not have a duty to provide an employee with transportation to or from work. But an employer does have a duty, where reasonable, to accommodate an employee by changing the times that the employee is required to be at work.

For a Jury to Decide

It’s important to understand that the Third Circuit’s reversal does not mean a “win” for the plaintiff. Instead, the case will be remanded back to the district court for trial. At trial, the jury will be asked to decide which party, Colwell or Rite Aid, failed to meet its obligation to fully participate in the “interactive process” required by the ADA. That decision could go either way.

The jury could find for Colwell, based on the claim that the supervisor’s flat refusal to discuss a possible shift change was not a sufficient attempt at an accommodation. Or the jury could find for Rite Aid, based on the claim that the supervisor had agreed to meet with Colwell and her union rep but when the union rep failed to show up at the meeting, Colwell quit before further discussions could be had.

Alternatively, the jury could find that Rite Aid complied with its duty to engage in the interactive process but, for whatever reason, the shift change was not a viable accommodation. This would be a more difficult burden to meet but not an impossible one.

The Key Lesson

For many employers, this case may seem to have been decided on a technicality. The line between getting an employee to work and giving the employee a shift so that she can get to work seems to be a very thin line indeed. Putting aside the narrow difference, employers should look at the facts on a more basic level to derive the lesson to be learned. In other words, what, if anything, about the supervisor’s response just doesn’t seem fair?

The fact that the supervisor refused to even consider the request doesn’t seem quite right, does it? The supervisor’s immediate response was that a shift change wouldn’t have been “fair” to other employees. That may or may not have been the case. Shouldn’t she have at least bothered to ask the other employees?

The real lesson here is one that is a consistent theme in ADA issues: employers should always try to “work something out” when an employee requests an accommodation due to a disability. If you sit down and discuss the possibilities and then flush out as many options as you can, you will be a far better position.

But do it not because you have to; do it simply because you want to. You want to keep your good performers and not to make employees’ working lives any more burdensome than necessary. This is the same reason employers provide benefits and incentive plans. The same motivation should apply when an employee makes a reasonable request—start with the idea that you want to make the accommodation and take it from there.


The Risk of Automatically Terminating Employees After Leave Expires

Posted by Teresa A. CheekOn February 8, 2010In: Disabilities (ADA)

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The EEOC published a press release a few days ago about the distribution of a $6.2 million settlement it had reached with Sears, Roebuck & Co. The lawsuit had been filed in November 2004 in federal court in Chicago. The consent decree was entered and publicized on September 29, 2009 as the largest ADA settlement in a single case in EEOC history. The EEOC Regional Attorney handling the case stated:

The era of employers being able to inflexibly and universally apply a leave limits policy without seriously considering the reasonable accommodation requirements of the ADA are over. Just as it is a truism that never having to come to work is manifestly not a reasonable accommodation, it is also true that inflexible leave policies which ignore reasonable accommodations making it possible to get employees back on the job cannot survive under federal law. Today's consent decree is a bright line marker of that reality.

The EEOC had complained that “Sears maintained an inflexible workers’ compensation leave exhaustion policy and terminated employees instead of providing them with reasonable accommodations for their disabilities, in violation of the ADA.” The settlement resulted in payments averaging $26,300 to 235 former Sears employees.

This is not the only such case pursued by the EEOC. The EEOC filed a class action lawsuit suit against UPS in Chicago on August 27, 2009. According to the EEOC press release, the case was initially prompted by an investigation into a complaint that UPS had fired an employee with multiple sclerosis after she exhausted the twelve months off to which she was entitled under the UPS leave of absence policy. She had asked for 2 more weeks of leave so that her medications could be adjusted, but UPS allegedly refused to provide it.

In November 2009, the EEOC reached a settlement with JPMorgan Chase & Co. in a class action based on similar allegations. The EEOC alleged that Bank One, which later merged with Chase, had terminated some employees after they exhausted six-month medical leaves without first investigating on a case-by-case basis whether it was possible to accommodate their limitations so that they could return to work. As a result of the settlement, $2.2 million was to be distributed among 222 individuals who had taken long-term-disability leave and were then terminated.

Big companies that have leave policies, no matter how generous, that call for automatic termination of employees who exhaust the specified period of available time off, are prime targets for EEOC class action suits. Many courts have upheld claims by employees that their former employers violated their rights under the Americans with Disabilities Act by refusing to even consider extending their leaves of absence or providing other forms of reasonable accommodation. Employers should examine their long-term and short-term disability and medical leave policies to ensure that they comply with the ADA’s mandate that employers attempt, on an individualized basis, to accommodate employees’ disabilities before terminating their employment.

Top 10 Employment Law Developments of 2009

Posted by William W. BowserOn December 17, 2009In: Benefits, Disabilities (ADA), E-Verify, Genetic Information (GINA), Newsworthy, Purely Legal, Union and Labor Issues

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As 2009 winds down, it’s a good time to reflect on the most important employment law developments in what has been a very busy year. Here are my top 10:

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Service Animals That Provide Psychiatric Service

Posted by Molly DiBiancaOn November 3, 2009In: Disabilities (ADA)

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Last week, I posted twice on the recent controversy surrounding service animals. (See Table for Two, Please--Me and My Seeing-Eye Horse; Quit Monkeying Around: Court Rules Monkey Is Not a Service Animal).    Apparently, I'm not the only one who finds the issue interesting. Over the weekend, the New York Times' Week In Review feature included a piece on the same topic.  In Good Dog, Smart Dog, Sarah Kershaw writes about service animals that provide "psychiatric service." Certainly, the animals discussed in Kershaw's article appear to provide far more meaningful services than those discussedimage in some of the news pieces I cited last week.  

Although it is not clear how these animals are able to do it, they are said to have certain cognitive powers that enable them to detect the onset of conditions, such as seizures, minutes before they begin. The abilities of these animals is tremendous, to say the least.  It appears that they have the ability to save the lives of their owners in remarkably astonishing ways.  Take, as an example, the labradoodle who has been trained to:

anticipate seizures, panic attacks and plunging blood sugar and will alert his owner to these things by staring intently at her until she does something about the problem. He will drop a toy in her lap to snap her out of a dissociative state. If she has a seizure, he will position himself so that his body is under her head to cushion a fall.

The piece is timely and fascinating.  It is well written and insightful and provides an entirely unexpected perspective of an already complex issue.

Quit Monkeying Around: Court Rules Monkey Is Not a Service Animal

Posted by Molly DiBiancaOn October 26, 2009In: Disabilities (ADA)

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Service animals provide assistance to persons with disabilities in a number of ways. Last week, I wrote about the seeming confusion surrounding “non-standard” service animals, like a boa constrictor and a “seeing-eye horse.”  The U.S. DOJ published proposed revisions in an attempt to clarify what animals do and do not qualify as service animals for purposes of the ADA.  The proposed regulations relating to service animals (PDF) would exclude the boa constrictor (and other snakes and reptiles), as well as rabbits, farm animals, ferrets, and wild animals, including monkeys born in captivity. Explaining the perceived need for the changes, the DOJ stated:

At the time the regulation was promulgated, the Department believed that leaving the species selection up to the discretion of the individual with a disability was the best course of action. Due to the proliferation of animal types that have been used as ‘‘service animals,’’ including wild animals, the Department believes that this area needs established parameters. Therefore, the Department is proposing to eliminate certain species from coverage under the ADA even if the other elements of the definition are satisfied.

The proposed regulations would also exclude animals that do not provide assistance but that provide emotional support, comfort or companionship. But, as reported by the ABA Journal, the regulations may have come a bit too late.  The apparent popularity of these “non-standard service animals” is widespread.

After some 4,500 people flooded the DOJ with comments about the proposal, the Obama administration delayed implementation until its new civil rights team was on board. At this point, the revised ADA regulations are expected by the end of the year.

And, today, the ABA Journal offers an interesting update to the story.  A federal judge has ruled that Richard, a monkey belonging to a Missouri woman, does not qualify as a service animal entitled to the benefits offered by ADA.  The ADA does not require businesses to permit Richard access with his owner, says the court.

Richard’s owner claimed that Richard was the key to controlling her anxiety and agoraphobia and sued when the County Health Department and Wal-Mart (among others), refused to permit her to bring Richard along while she patronized local businesses.

In the Court’s opinion (below), it identified the benefits the plaintiff claimed to receive from the monkey’s companionship.  The plaintiff claimed that Richard:

blocks people from getting too close in public places, “tolerat[es] ... a position for hours” so Plaintiff can focus without anxiety, brings Plaintiff to full awareness by performing tasks such as holding her hand or touching her face, sits on her lap for “as long as it takes to relieve the emotional overload,” gets his toothbrush to encourage her to get out of bed, brings the remote control to the TV or the cell phone if Plaintiff is not “functioning normally,” turns her turn signal in the car when she reaches her street to inform her it’s time to turn, the monkey can open the car door allegedly as an “escape strategy,” uses a “direct look with an open mouth” or a “gentle push” to alert strangers to stay away, and hugs Plaintiff to bring her anxiety level down.

These allegations are helpful in understanding why the court rejected the plaintiff’s claim.  As comforting as Richard’s assistance may be, none of the tasks he performs apparently help his owner perform a major life activity that she would not otherwise be able to perform but, as her doctor testified, primarily sits with Plaintiff and provides her with comfort.

Fed. Register Service Animals

EEOC Published Flu Pandemic Guidelines

Posted by Teresa A. CheekOn October 23, 2009In: Disabilities (ADA)

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Wondering what it is okay to say and do with regard to employees who have, or might have, the flu? The EEOC has stepped up with information to clarify with information about flu-related issues based on the principles of the Americans with Disabilities Act, or ADA. The World Heath Organization posts periodic updates on the status of the H1N1 pandemic, which has been in phase 6 (sustained community-level transmission of the virus is taking place in more than one region of the world) since June 2009. Delaware is one of the states that the United States Center for Disease Control currently considers to be experiencing a “widespread” H1N1 flu outbreak.

The EEOC has provided a questionnaire that employers may use to determine the likelihood that employees will be absent during a flu outbreak:


Directions: Answer “yes” to the whole question without specifying the factor that applies to you. Simply check “yes” or “no” at the bottom of the page.

In the event of a pandemic, would you be unable to come to work because of any one of the following reasons:

If schools or day-care centers were closed, you would need to care for a child;

If other services were unavailable, you would need to care for other dependents;

If public transport were sporadic or unavailable, you would be unable to travel to work; and/or;

If you or a member of your household fall into one of the categories identified by the CDC as being at high risk for serious complications from the pandemic influenza virus, you would be advised by public health authorities not to come to work (e.g., pregnant women; persons with compromised immune systems due to cancer, HIV, history of organ transplant or other medical conditions; persons less than 65 years of age with underlying chronic conditions; or persons over 65).

Answer:  Yes______  No_______


The EEOC also explains that employers may send employees home who appear to have flu symptoms, may ask employees if they are experiencing flu symptoms (fever, chills, cough, sore throat), may take employees’ temperatures if the flu is deemed “widespread” by state or local authorities or the CDC (although some people with flu do not run a fever), may encourage employees to telecommute, may require employees to adopt infection control practices like hand washing and proper coughing and sneezing practices, may require employees to wear personal protective equipment designed to reduce infection transmission (i.e., gloves, face masks, disposable gowns), and may ask employees why they were absent from work.

Employers may not require employees to get flu vaccines, ask whether employees have health conditions that may make them more vulnerable to flu or complications from flu, or treat employees or applicants differently because they have a disability (such as HIV) that could make them more vulnerable to flu or complications from flu.