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.

EEOC Commissioner Charge Trickery Called Out 2018-12-03T09:06:00-07:00

Posted on December 3, 2018

By John Alan Doran

Back in 2012, the EEOC issued BNSF a “Commissioner’s Charge,” saying it would investigate purported ADA violations by the railroad. For several years, BNSF cooperated with the EEOC’s numerous information requests. During the investigation, BNSF provided the EEOC with the names of 54 BNSF employees, but only after receiving written assurances from the EEOC that these employees were not related to the pending Commissioner’s Charge. Fast-forward to 2018, when the EEOC issued right-to-sue notices to the 54 employees based…(wait for it)…on the supposedly unrelated allegations in the Commissioner’s Charge. BNSF was suitably perturbed and filed suit, asking the court to declare the Commissioner’s Charge and the right-to-sue notices illegal. The complaint alleged the Charge was filed over the signature of a Commission no longer in office and that the EEOC had impermissibly published its findings to members of the public – the 54 unrelated individuals. The EEOC predictably responded that it could not be sued for its trickery. It argued that, because it could always come back and resume an investigation, even after it was “closed,” its right-to-sue notices were not final agency action.

The trial court resoundingly disagreed with the EEOC’s imperious position, and denied the EEOC’s motion to dismiss. The court held that right-to-sue notices ARE final agency action – or final enough to permit suit, and that BNSF had alleged a sufficient legal wrong to permit a remedy under federal law. The court’s decision appears to open the way to broader challenges to the EEOC’s shenanigans, which we applaud. Sadly, the decision also a reminds employers that the EEOC simply cannot be trusted when it describes its position, promises confidentiality, or makes similar representations in the course of an investigation, even when required to do so by law. BNSF Railway v. Equal Employment Opportunity Commission (N.D. Tex. 11/27/18)

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.

Takin’ Care of Business (on Half Time Schedule) 2018-07-19T13:30:31-06:00

Posted on July 19, 2018

By: Joe Hunt

An employee was unable to return to work full time because she was experiencing postpartum depression. She worked half time instead and, according to the employee, she was still able to do everything that was required of her position as a Human Resources Generalist. When the employee requested to extend her half time schedule for the foreseeable future, her employer terminated her employment because the reduced schedule overwhelmed other employees and caused the department to function poorly.

The crux of this lawsuit under the ADA was whether the employee was “qualified for her position.” The trial court decided the employee was not qualified because she could not perform the essential function of her job with or without accommodation. It granted the employer’s motion for summary judgment on all the claims. The Sixth Circuit Court of Appeals, however, reversed and held that the employee had presented sufficient evidence to preclude summary judgment when she and another employee testified she could do all her work on the reduced schedule.

This appellate decision punched a hole in the argument that an employer gets to determine the essential functions of its jobs. Instead of taking the employer’s word (as expressed in job descriptions and by management) for job duties, the court ruled that employers must tie time-and-presence requirements to other job requirements and explain why an employee cannot complete essential functions unless he or she is present 40 hours a week.

The case is Hostettler v. The College of Wooster, No. 17-3406 (6th Cir. July 17, 2018).

Between a Rock and a Hard Place – Off Duty Conduct Statutes 2018-07-19T10:29:14-06:00

Posted on July 19, 2018

By: Beth Ann Lennon

The Ninth Circuit recently reminded employers to keep state statutes regarding lawful off duty work in mind. R.C. Willey had a policy prohibiting employees from arriving at work with a blood alcohol level above .04%. When an employee came to work with a higher BAL, the employer discharged him. The policy violation provided a non-discriminatory basis for the termination, and the employer won summary judgment on an ADA claim. However, under Nevada law, an employee cannot be discharged for engaging “in the lawful use . . . of any product outside the premises of the employer during the employee’s nonworking hours, if that use does not adversely affect the employee’s ability to perform his or her job or the safety of other employees.” Nev. Rev. Stat § 613/333(1)(b). At the time, the employee was on light duty work and he might have been able to do his extremely limited duties while just a little drunk. Now, a jury will have to decide whether the employee’s “lawful off duty” alcohol consumption “adversely affected” his ability to do his limited duties or the safety of others. O’Brien v. R.C. Willey Home Furnishings, No. 16-16677 (9^th Cir. July 13, 2018).

More than half of the states have a statute that protects employees from adverse employment actions because of their off-duty activities. Don’t focus exclusively on the federal claims; sometimes the state bites you, even outside California.

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.

AZ ADA Trolls Benchslapped 2017-02-17T14:35:52-07:00

Posted on February 17, 2017

By John Alan Doran

An Arizona trial court today put a stop to one of the more egregious abuses of civil rights laws, dismissing well over 1,000 lawsuits filed by ADA trolls against Arizona property owners and lessees. The explosion of ADA lawsuits in Arizona has been well documented by the media. But most of the explosion in this area was the product of one attorney, a supposed disability advocacy group he works with, and a small stable of serial litigant plaintiffs. The vast majority of the cases fit the same mold: the attorney has a so-called ADA “expert” drive around town looking for disability parking signs that are less than sixty inches above the ground. When such a sign is spotted, whether measured accurately or otherwise, the attorney pounces and immediately files a lawsuit. The attorney then makes a settlement demand in the range of $3,000-$7,500 and explains that if the property owner or lessee doesn’t settle, it will cost much more to litigate the case and the attorney will send his expert back to find even more supposed ADA violations. In hyper-technical legal lingo, this is what we call a “shakedown.” This particular group of shakedown artists filed somewhere between 1,000 and 2,000 of these cases from January 2016 to the present.

Well, today this shakedown came to a screeching halt. A Maricopa County Superior Court Judge ruled from the bench today, in a case that has consolidated well over 1,000 of these cases, that the plaintiffs lacked standing to bring these lawsuits in the first place. As a result, the cases will be dismissed immediately. While we cannot guess what will happen with these dismissals on appeal, we are encouraged by the Arizona Legislature’s very recent steps to shore up a gaping hole in the Arizonans With Disabilities Act that has effectively promoted and enabled these shakedowns.

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).

Wellness Rewards Under GINA 2015-11-03T13:08:08-07:00

Posted on November 3, 2015

By Brooke Colaizzi

The EEOC has issued proposed regulations addressing the legality of inducements for spousal participation in wellness programs under the Genetic Information Nondiscrimination Act (GINA). The original GINA regulations prohibited employers from offering inducements to an employee for providing genetic information, including genetic information about employees’ spouses. The EEOC has now declared that employers may offer limited inducements (financial or in-kind), whether in the former of incentives or penalties to be avoided, to spouses covered by an employer’s group health plan who receive health or genetic services offered by the employer to provide information about their current or past health status as part of a health risk assessment. Inducements are still illegal as to spouses’ other genetic information or genetic tests, as well as the genetic information or tests of an employee’s children. The total inducement provided to a spouse may not exceed the total cost of coverage for the plan in which the employee and any dependents are enrolled minus 30 percent of the total cost of self-only coverage.

The EEOC is accepting comments on the proposed regulations until December 29, 2015. If you have a wellness plan and have not reviewed its provisions recently, now is a good time to evaluate whether the plan complies with the proposed regulations under both the ADA and GINA.

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