Employee’s Preference to Work from Home Is Not Enough 2019-02-05T17:06:03-07:00

Posted on February 5, 2019

Courts are becoming more receptive to the idea of working from home as a reasonable accommodation under the Americans with Disabilities Act (“ADA”). A few principles remain static, however, as reflected by the Eight Circuit decision affirming summary judgment for the employer in Brunckhorst v. City of Oak Park Heights, No. 17-3238 (8th Cir. Feb. 4, 2019). An employer is not required to accommodate an employee based simply on the employee’s preference. In Brunckhorst, the employee’s doctor never suggested the employee needed to work from home. Instead, the doctor said the employee should be allowed to work on-site, four hours per day. The employer offered on-site work with short days, but the employee held out for work from home. Why? In his deposition, the employee explained it was easier to work from home. The employee also admitted that he would be unable to perform some of his essential duties remotely. Someone on-site would have to help him.

What is the lesson for employers? When an employee with a disability requests to work from home, review the job description. Determine whether being present in the workplace is an essential function of the job. Request a medical provider’s opinion regarding the employee’s limitations and evaluate whether working remotely will address the employee’s limitations. Determine whether equally effective alternative accommodations exist in the workplace.

ADA Failure to Accommodate Claim Requires Adverse Action 2018-10-12T12:00:30-06:00

Posted on October 12, 2018

By Bill Wright

The Tenth Circuit Court of Appeals has faced one of the least litigated issues under the ADA. Is a failure to accommodate the restrictions of a disabled employee, itself, an adverse employment action? Answer: no.

Almost all ADA failure to accommodate cases arise when the employee is let go because he or she is unable to do the essential functions of the job, but the employee contends a reasonable accommodation would have been possible. In all those cases, the employee has been discharged—a clear adverse employment action. But what happens if the employer and employee engage in the interactive process, run out of ideas for accommodations, and just don’t address the issue again? The employee continues in the job, without discipline and without discharge. Is there an actionable failure to accommodate claim?

In Exby-Stolley v. Bd. Of Cnty Comm’rs, No. 16-1412 (10^th Cir. Oct. 11, 2018), the circuit court analyzed the text of the ADA and ruled that substituting “failure to accommodate” into the anti-discrimination provision still leaves the requirement to show the failure was “in regard to” application procedures, hiring, advancement, discharge, compensation, training, or other terms and conditions of employment.

Of course, we can’t take this too far. If the employee is unable to enjoy the benefits of employment or is materially and adversely affected in performing the job, those might supply the necessary adverse employment action. The key here is that the employer does not run out of time to continue the interactive process so long as the employee has not suffered an adverse employment action.

UPS Delivers Cautionary Tale 2017-08-08T14:56:42-06:00

Posted on August 8, 2017

By John Doran

Maximum leave policies are ubiquitous. These policies typically state that an employee who does not/cannot return from leave within a specified period (e.g. 12 months) will be discharged. Last year the EEOC issued “guidance” reminding employers that it views maximum leave policies as a violation of the ADA. Last week the EEOC settled a long-running case with UPS involving maximum leave policies. The EEOC’s lawsuit, filed in 2009, claimed that UPS’s maximum leave policy discriminated against disabled workers because it left no room for accommodation upon expiration of twelve months leave. Under the settlement, UPS agreed to pay $1.7 million to a class of workers and to create new mechanisms within the entire organization to ensure a prior legal review of any termination of an employee who has reached the end of a medical leave. Whether the EEOC is right or wrong on maximum leave policies under the ADA, it clearly litigates to enforce its position. Employers are wise to look at their leave policies to ensure they do not run afoul of the EEOC’s interpretation of the ADA.

It’s Reasonable to Employ Marijuana Users 2017-07-18T10:39:00-06:00

Posted on July 18, 2017

By Bill Wright

A requested accommodation for a disability is not unreasonable as a matter of law just because it is illegal under federal law, says the Massachusetts Supreme Judicial Court in a recent case. As applied there, the result is that an employer had to engage in an interactive process with the employee to determine whether an alternative medication would have been just as effective as medical marijuana for her disability.

The Massachusetts medical marijuana law provides that medical marijuana users may not be denied “any right or privilege” because of their use of the drug and that employers are not required to accommodate “on-site medical use of marijuana.” In this case, the employer discharged an employee when she tested positive for marijuana. The facts alleged are that she used the drug only off work and as prescribed by her physician. When the employee brought a disability discrimination claim (among others), the employer moved to dismiss, arguing, in part, that permitting an employee to commit a federal crime is per se unreasonable. The Court disagreed. After all, the state and citizens of Massachusetts (and “nearly ninety per cent of the States”) have decided that medical use of marijuana is reasonable; who is the federal government to disagree? In addition, only the employee risked federal prosecution. The underlying issue here is that the employer did not engage in the interactive process with the employee to determine whether some other medication might have been more effective.

Each of the state laws legalizing marijuana has its own quirks when it comes to the employment relationship. Massachusetts’ version guaranteed broad protections and left open the possibility of a reasonable accommodation for off-site use. Compare this to your state’s law.

Don’t Quarrel Over Scripture 2017-06-13T10:30:04-06:00

Posted on June 13, 2017

By Bill Wright

The Fourth Circuit Court of Appeals recently upheld a jury verdict in favor of the EEOC in a Title VII religious discrimination claim. At issue was the use of a biometric scanner as a time clock. EEOC v. Consol Energy, Inc. et al., No. 16-1406 (4^th Cir. June 12, 2017) The employee objected that allowing the company to scan his hand – either hand – would result in his receiving the Mark of the Beast. (See Revelation 13:16-17.) The company provided the employee with a prepared interpretation of the Book of Revelation from the manufacturer of the biometric device. The manufacturer explained (1) the device left no mark, or “Mark,” and (2) employees could safely use their left hands as the Beast would Mark only a person’s right hand or forehead. The company therefore insisted that the employee scan his left hand. Oh, of course, employees with injured hands could just input their employee number, but the company did not offer – in an internal email, actually refused – to offer this accommodation to the religious dissenter. The company threatened discipline if he did not scan one hand or the other; and the employee resigned under protest.

Apparently the scriptural disagreement and evidence related to constructive discharge were the main themes of the trial. There was no disagreement over the sincerity of the employee’s belief, only over whether he was right.

It seems elementary, but a U.S. court is not going to rule, or instruct a jury to determine, authoritative interpretations of scripture. As an employer, don’t get into a dispute of biblical proportions over a simple timekeeping accommodation. If it had been anything more than de minimis, Title VII would not have required the employer to provide the accommodation.

Site-Specific Disability? 2017-01-18T10:23:16-07:00

Posted on January 18, 2017

By Bill Wright

Does the ADAAA allow an employee to claim that she is disabled-in-a-particular-place or with-a-particular-supervisor, and otherwise not disabled? A California federal court judge opened the door to such claims by denying summary judgment on the issue of the plaintiff’s disability. In Lozano v. County of Santa Clara, No. 5:14-cv-02992-EJD (N.D. Cal. Jan. 13, 2017), the plaintiff argued that her current worksite aggravated an underlying impairment, preventing her from performing any of the essential functions of her job. If she worked at another site, she would still have the impairment, but it would not be debilitating. (Naturally, she sought transfer to another location as a reasonable accommodation for her site-specific disability, but set that aside.) Was she even disabled if her impairment only prevented her from performing her job at one location? Here, the court answered, “Maybe. The ADAAA is supposed to be interpreted broadly. A site-specific disability is like an intermittent or latent condition.”

Beware of employees claiming that the anxiety of working for their boss, or in their workspace, triggers a disability. They might have a point.

2 Key SCOTUS Spokeo Takeaways 2016-05-16T11:06:15-06:00

Posted on May 16, 2016

By John Alan Doran

The Supreme Court held this morning that a party suing for a purely technical violation of a statute (in this case, the Fair Credit Reporting Act (“FCRA”)) must demonstrate that he/she has suffered or is likely to suffer a concrete harm from the statutory violation. Spokeo, Inc. v. Robins. Robins sued Spokeo under the FCRA when he learned that searches for him in the Spokeo search engine by third parties turned up false information about him. Robins’ lawsuit claimed that Spokeo violated the FCRA, and he was therefore entitled to an automatic statutory penalty provided in the FCRA. But it was not clear from the lawsuit whether Robins suffered or was likely to suffer any real harm from Spokeo’s technical violations of the FCRA. So, the Court sent the case back to reassess whether Robins actually complained of a concrete harm or a concrete threat of harm.

And you care because…..? First, in a footnote, the Court reemphasized that, in all class actions, the plaintiffs who bring the actual lawsuit must themselves demonstrate that they have suffered or will suffer some concrete harm. This is important because oft-times in employment class actions, the plaintiff simply claims that he/she is a member of a large class, and that the class has suffered some generalized harm from the employer’s actions. That will not be enough under Spokeo. Second, the Court’s extraordinary emphasis on the need for concrete harm may provide places of public accommodation with a new weapon in the defense of Americans With Disabilities Act Title III cases. One could read this opinion as the possible death-knell for the legions of cases where the plaintiff alleges that he/she wanted to visit a property, but was “deterred” by the alleged ADA violations on the property. And, better still, this may require the Ninth Circuit to revisit its mind-bogglingly broad ADA public accommodations decision in Doran v. 7-Eleven, Inc. (no relation to yours truly).

Pregnancy Accommodation Headed to Governor 2016-05-10T10:12:37-06:00

Posted on May 10, 2016

By Brooke Colaizzi

A bill requiring Colorado employers to provide reasonable accommodations to pregnant employees has passed both the Colorado House and the Senate and is headed to Governor John Hickenlooper’s desk.

Employers already must provide reasonable accommodations for conditions and complications related to pregnancy that meet the definition of “disability” under federal or state law. The new bill would require employers to reasonably accommodate restrictions or limitations related to pregnancy that do not rise to the level of disabilities.

Examples of restrictions or needs that might fall under the new bill include extra water breaks, seating during work time, and lifting restrictions. The bill requires employers and pregnant employees to engage in an interactive process similar to the process followed in cases of disability accommodation.

If Governor Hickenlooper signs the bill, it likely would take effect in August 2016. Stay tuned for updates on the status of the legislation.

Employer May Eliminate Light Duty Job 2015-12-04T13:25:03-07:00

Posted on December 4, 2015

By Beth Ann Lennon

In Dunderdale v. United Airlines, the employee suffered from a back injury that prevented him from performing any heavy lifting. The employer assigned him to a light duty position – sitting at a computer scanning bags as they went by. Several years later, in response to employees’ requests, the employer included the position in the seniority bidding system under the applicable collective bargaining agreement. The disabled employee lost the light duty position through bidding based on seniority. Is that an ADA violation?

The court in this case held that an employer is not required to maintain positions it used in the past to provide reasonable accommodations. The employer may eliminate the job, for legitimate business reasons. Here, the employer legitimately included the position in its seniority bidding system, a system it had consistently and reliably applied under the CBA. The employer’s past practice of reserving the position for injured workers did not require them to continue doing so in perpetuity.

Unreasonably Sporadic Telecommuting 2015-04-13T13:05:26-06:00

Posted on April 13, 2015

By Bryan Stillwagon

One year ago, we reported on the Sixth Circuit’s ruling that telecommuting could be a reasonable accommodation for a resale steel buyer at Ford suffering from irritable bowel syndrome. There, the employee requested to telecommute as many as four days a week. Ford denied the request because the position, at least according to Ford, required an employee’s physical presence and was unsuitable for telecommuting.

After a rehearing by the full Sixth Circuit, a majority (8-5) has changed course and ruled in Ford’s favor. EEOC v. Ford Motor Co., No. 12-2484 (6th Cir. Apr. 10, 2015). First, there was evidence that a resale buyer could not work unpredictable at-home schedules without lowering production standards. Second, other employees’ telecommuting arrangements were scheduled and predictable, but plaintiff’s proposed arrangement (up to 4 days per week at home, unscheduled in advance, refusal to come in if needed) was not. Third, though technology (e-mail, teleconferencing, etc.) had undoubtedly advanced, technology was not a complete substitute for a resale buyer’s physical presence.

Might telecommuting still be an accommodation that is reasonable for some positions? Absolutely, but not if the job can be best performed only by the employee actually being there, as opposed to a disembodied voice over the phone, or an e-mail or text message.

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