Ninth Circuit Finds “Attendance” to be Essential Function of Nurse’s Job

The Ninth Circuit recently determined that for a neo-natal intensive care unit nurse, attendance is an essential function of the job. The hospital at which the nurse worked had an attendance policy wherein employees could take up to five unplanned absences during a rolling twelve-month period, and unplanned absences related to family medical leave . . . jury duty, bereavement leave and other approved bases are not counted towards this limit, and each absence, however long, counts as only one occurrence. More ›

EEOC Clarifies Its Position Regarding Employers’ High School Diploma Requirements

On November 17, 2011, the EEOC issued an informal opinion letter discussing potential violations of the Americans with Disabilities Act (ADA) as a result of an employer’s requirement that applicants hold a high school diploma. Specifically, the EEOC opined that if an employer adopts a high school diploma requirement for a job, and that requirement “screens out” an individual who is unable to graduate because of a learning disability, the employer may not apply the standard unless it can demonstrate that the diploma requirement is job related and consistent with business necessity. The EEOC further stated that even if the diploma requirement is job related and consistent with business necessity, the employer may still have to determine whether a particular applicant whose learning disability prevented him from obtaining a high school diploma can perform the essential functions of the job with or without a reasonable accommodation. More ›

Policy Requiring Disclosure of Nature of Illness for Work Absences may Violate ADA

The Equal Employment Opportunity Commission filed a class-action lawsuit against a department store claiming its policy violated the Americans with Disabilities Act (“ADA”). The case came about when an employee was unable to attend work for a few days due to medical illness, and despite having provided a doctor’s note for her absence, the store sought the specific nature of her illness in order to have the absences deemed “excused.” The employee refused to provide the information and claimed the request was unlawful. The store subsequently terminated her employment. Later, the store revised its policies and this requirement was removed.  More ›

Employer’s "100% Healed" Policy Did Not Support "Regarded as" Disability Claim

A long-haul truck driver requested a transfer to a local driving route for personal reasons. Shortly after transferring, the driver discovered that the increased lifting requirements of the local position aggravated a preexisting back injury. Consequently, the driver requested a transfer back to a long-haul position. His request was denied based on the requirements of the collective bargaining agreement. As a result, the driver went on medical leave. The driver returned with restrictions from his treating physician that prevented him from performing the physical work required as part of the local route and stating that he could only work as a long-haul driver. The employer informed the driver that he could not return to work until he was released without restrictions. The driver sued the employer, alleging that the employer’s “100% healed” policy established that the employer regarded him as substantially limited in the major life activity of working in violation of the American’s with Disabilities Act (ADA). The U.S. Court of Appeals for the Seventh Circuit rejected this argument because the driver failed to establish that the employer believed that he was unable to work in a class of jobs or a broad range of jobs. Absent such a showing, the driver could not establish that the employer regarded him as disabled simply because it required him to establish that he was fully able to perform the specific requirements of the job he was performing for the employer. While implementing a “100% healed” policy may not serve as a per se violation of the ADA, employers must carefully apply such a policy to ensure that it does not trigger liability and should consult with counsel regarding any concerns.

Powers v. USF Holland, Inc., No. 10-2363 (7th Cir. Dec. 15, 2011)

Employee’s ADA Claim Fails due to Inability to Establish that she was a “Qualified Individual”

An employee sued her employer claiming that she was: (1) discriminated against based upon her disability, (2) retaliated against, and (3) subjected to a hostile work environment when the employer failed to provide her with a disabled-access parking spot. The employee suffered from fibromyalgia and other health problems, which ultimately led to her taking considerable time off of work. In at least one year, she was absent for 59 percent of the time. In response to her claim, the employer indicated that the employee’s attendance was entirely unpredictable and that she rarely gave advance notice of her absences. The U.S. Court of Appeals for the First Circuit determined that the employee’s claim failed from the inception because she was unable to establish that she was a qualified disabled individual, or, more specifically, that she was able to perform the essential functions of her job. The provision of a disabled parking space was not determinative, because it was questionable whether the space would have enabled her to perform the essential functions of her job. Because being present at her workplace was an essential function, and the employee’s history of absences demonstrated that she was incapable of regularly being at work, she could not overcome this initial hurdle. The court similarly determined that the employee was unable to establish a hostile work environment or retaliation based upon the same facts. Disability discrimination claims are on the rise. Employers must ensure that their policies and practices comply with the ADA and/or corresponding state anti-discrimination laws.

Colon-Fontanez v. San Juan, No. 10-1026 (1st Cir. Oct. 12, 2011)

Employee’s Failure to Demonstrate Satisfactory job Performance Renders ADA Claim Invalid

A part-time janitor did not receive any of the promotions for which he applied, and was later terminated for performance reasons. He sued his employer, claiming that his termination was discriminatory in that it was based upon his menta disability. In reviewing the evidence and ruling on the employer’s motion for summary judgment, the court determined that while the employee did have a mental disability and had made a complaint about discrimination, he had significant performance-related issues that contributed to his lack of promotion and his ultimate termination. Because the employee failed to demonstrate that he was meeting the employer’s reasonable expectations of the job and performing his job satisfactorily, he could not maintain his claims under the Americans with Disabilities Act. Further, the fact that a supervisor made a comment to him that he “should not be suing [his] employer” if he wanted to get a promotion was not determinative and the remark, alone, did not support his claim for retaliation. This case demonstrates the significance of having well- documented performance records, which, here, helped to overcome a supervisor’s “imprudent” remark and ultimately assisted the employer in securing a dismissal in its favor.

Dickerson v. Board of Trustees of Community College District No. 522, No. 08-CV-716 (7th Cir. Sept. 16, 2011).

EEOC Warns Against Keeping Personal and Occupational Health Information in Single Electronic File

Maintaining an employee’s personal health information and occupational health information in a single electronic medical record could violate the requirements of Title I of the Americans with Disabilities Act (ADA) and Title II of the Genetic Information Nondiscrimination Act (GINA), according to an informal discussion letter recently released by the Equal Employment Opportunity Commission (EEOC). An employer’s right to access occupational health information from individuals providing health services unrelated to employment is strictly limited under both the ADA and GINA. Although neither the ADA nor GINA specifically addresses whether encryption, password authentication, or other security safeguards are necessary for electronic records maintained by employers, the EEOC stated that it does not interpret either statute’s confidentiality provisions to apply only to paper records. Therefore, maintaining personal health information and occupational health information in a single electronic medical record, particularly one that allows someone with access to the electronic medical record, presents a real possibility that the ADA and GINA, or both, will be violated.

Terminated Employee Denied Accommodations has Triable ADA Claims

An employee was on a flexible work schedule for a number of years to accommodate her disability, chronic fatigue syndrome (CFS). After being assigned to a new supervisor, the employee was served with written reprimands for attendance and deprived of other accommodations that eased her symptoms, including a flexible work schedule. The employee took medical leave from her job because of the stress caused by her supervisor’s actions and was subsequently terminated. The employee claimed that her employer had violated the American with Disabilities Act (ADA) when it failed to provide her with reasonable accommodations for her disabilities and that it retaliated against her by terminating her employment. The U.S. Court of Appeals for the First Circuit held that although attendance is an essential function of any job, whether a reasonable accommodation, such as a flexible work schedule, will allow an employee to maintain good attendance must be considered by the employer. With the recent implementation of new regulations addressing the ADA, employers must carefully consider whether reasonable accommodations are available that will aid employees in performing the essential functions of their job, including accommodations that will adequately address employee attendance.

EEOC Holds Public Hearing on Leave as a Reasonable Accommodation

On June 8, 2011, the U.S. Equal Employment Opportunity Commission (EEOC) considered the use of leave as a reasonable accommodation under the Americans with Disabilities Act (ADA) by assembling a diverse panel of experts to voice their opinions. Under the ADA, an employer must provide a disabled employee with reasonable accommodations that will allow him or her to perform the essential functions of the job. However, an employer does not need to provide accommodations that subject it to an undue hardship. When disabled employees request a leave of absence as a reasonable accommodation, employers are faced with the question of how much leave they must provide in order to comply with the ADA. That question often arises when a disabled employee exhausts all available leave time and is still not able to return to work. At the June 8 hearing, representatives for employers expressed their view that attendance itself can be an “essential function of the job” and that unplanned or extended absences are difficult for employers to manage. Employee representatives responded that leave is a critical accommodation that allows many disabled employees to stay in the workforce, and that the “entire purpose of the leave is vitiated if the employee recovers but is terminated or otherwise barred from returning to work.” The EEOC’s dominant message was that employers need to be flexible when applying their leave policies to disabled employees and that employers which enforce a bright line rule requiring a disabled employee to return to work or be terminated when his/her available leave is exhausted could be exposing themselves to liability under the ADA. Employers should instead analyze whether extended leave is a reasonable accommodation in the same way that they would analyze any other request for accommodation — by performing a individualized analysis to determine whether the accommodation is required by the ADA (i.e., whether the extended leave will allow the employee to perform the essential functions of the job without subjecting the employer to an undue hardship). The EEOC plans to issue updated guidance on when extended leave is warranted under the ADA, potentially by the end of this summer.

Drug Abuser Lacks ADA Protection Despite Completion of Rehabilitation Program

In 2004, an employee sales representative voluntarily entered an outpatient drug rehabilitation program with his employer’s knowledge. In June 2005, the employee was asked to submit to a drug test, which he failed. As a result, the employer terminated the sales representative’s employment, but informed the employee that he could return if he “got himself clean.” In July 2005, the employee entered an inpatient drug rehabilitation program. During the intake process for the program, the employee tested positive for cocaine and marijuana. The employee completed the program on August 4, 2005, at which time his rehabilitation counselor described his recovery prognosis as “guarded.” The next day, the employee contacted his former employer about returning to work. The employer informed him that he could return, but only to a position in which he would receive less compensation than his former sales job and that the employee could not service the same accounts he had prior to his discharge. The employee refused the conditions placed on his reinstatement and sued the employer contending that the refusal to reinstate him to his former position constitutes disability discrimination based on his drug addiction in violation of the Americans with Disabilities Act (ADA). The U.S. Court of Appeals for the Tenth Circuit ruled that “an individual is currently engaging in the illegal use of drugs if the ‘drug use was sufficiently recent to justify the employer’s reasonable belief that the drug abuse remained an ongoing problem.’” The court declined to adopt a bright-line rule that 30 days of being drug-free is per se insufficient for a former drug abuser to qualify for ADA protection. But it found that the employer reasonably considered the employee a current user based on his recent history of drug use and his guarded prognosis for recovery. Consequently, the court held that the employee was not protected under the ADA’s safe harbor provision for recovering drug addicts who are no longer abusing drugs. Employers should be mindful that although participating in or completing a drug treatment program may bring an individual within the safe harbor provisions, and therefore, the protection of the ADA, an individual must also be no longer engaging in drug use for a sufficient period of time to demonstrate to the employer that the drug use is no longer an ongoing problem.