ADA Reasonable Accommodation May Require Moving Employee’s Work Location
After an elementary school teacher was moved to a classroom without windows, her seasonal affective order was exacerbated by the lack of natural light. She began to suffer symptoms such as depression, an inability to concentrate, panic attacks and an inability to formulate and communicate her thoughts. She requested various items and changes to improve her room, including different light bulbs, an overhead projection screen, a map, desk, cabinet with locks and a nameplate. She also requested a transfer to a room which had windows. While the school district met a number of the teacher’s requests for items for her classroom, it did not move her into one of two available rooms which had windows. After her condition did not improve, the teacher sued the school district for failing to reasonably accommodate her under the Americans with Disabilities Act (ADA). The U.S. Court of Appeals for the Seventh Circuit ruled for the teacher, holding that she had communicated her request for a different classroom on numerous occasions, including when she submitted a note from her physician documenting the medical need for such an accommodation. The school district not only did not discuss this requested accommodation with the teacher, it failed to move her to an available room, a measure which the court found was a low-cost accommodation that should have been explored. This case is a reminder that employers have an obligation to participate in the interactive process with employees who request accommodations for covered disabilities under the ADA, particularly now that the definition of a “disability” has been substantially expanded under the recent amendments to the ADA.
Contact for more information: Linda K. Horras
Ekstrand v. School Dist. of Somerset, No. 08-1853 (7th Cir. Sept. 14, 2009)
Serious Condition May Not Require Accommodation Without Evidence of Limitations
An aircraft mechanic diagnosed with leukemia claimed that he was disabled and sought an accommodation from his employer under the Americans with Disabilities Act (ADA). The employee alleged that he was unable to walk for the same duration as a normal person, and that his leukemia prevented him from breathing fully and sustaining physical exertion to the same degree as an average person. The employee sought accommodations under the ADA, including a transfer from the Midwest to Arizona, where he believed he would be less likely to contract colds or pneumonia as a result of his leukemia. The U.S. Court of Appeals for the Seventh Circuit held that although the employee’s claims about his condition were entitled to some deference, he failed to establish that his leukemia substantially limited him in the major life activities of either walking or breathing. Most notably, the employee did not present any medical evidence to corroborate his self-assessment of being substantially limited. Nor did he present evidence as to the expected duration of his condition. To qualify as a disability under the ADA, the court found that the walking or breathing limitation must be permanent or long-term, and considerable compared with that of the general population. Vague assertions of difficulty performing a major life activity do not create a genuine issue of material fact, particularly when unaccompanied by any evidence that the limitation is substantial compared to that of other adults. Although employers must participate in the interactive accommodation process, they may request competent medical information from a physician before fulfilling an employee’s request for a reasonable accommodation involving a transfer or reassignment.
Contact for more information: Scott M. Gilbert
Fredricksen v. United Parcel Serv. Co., No. 08-2060 (7th Cir. Sept. 9, 2009)
Female Officer Denied Promotion Numerous Times Has Gender Discrimination Claim
A female police officer applied and was passed over for promotion to a command level position in four consecutive years. Although the department employed approximately 60 officers, the department’s command staff consisted of only 13 to 14 officers. Promotions to the command staff were discretionary, and based on a combination of factors, including: candidate scores on a written exam, performance reviews, and seniority. Over the course of the officer’s 17-year career, she was ranked second on the promotion list for two years and third on it in the other years she sought promotion. The police chief instead promoted male officers, including some who had lower overall scores and less seniority than the female officer. The U.S. Court of Appeals for the Sixth Circuit ruled that the female officer stated a claim for gender discrimination under Title VII of the Civil Rights Act of 1964, as amended. The police department argued that the officer was denied promotion simply because other officers scored higher performance reviews and “demonstrated more initiative and leadership qualities.” The court, however, found the department’s justifications to be pretextual considering the female officer’s overall scores made her “arguably superior” to other officers who received promotions. Employers should be mindful that inconsistency in granting promotions based primarily on subjective factors such as performance reviews could open the door for discrimination claims by individuals passed over for promotion who rank higher based on objective criteria such as scores on written exams.
Contact for more information: Tom H. Luetkemeyer
Risch v. Royal Oak Police Dept., No. 08-1883 (6th Cir. Sept. 23, 2009)
Employee Fired After Leave Request States Claims Under FMLA
An employee who had a child with Down Syndrome worked a flexible, part-time position with her employer for approximately 15 years. The employer indicated that the part-time position was being eliminated and offered the employee a full-time position, which the employee accepted. When the employee accepted the position, her employer told her that she would not be able to take a previously scheduled vacation. The employee requested leave under the Family Medical Leave Act (FMLA) to care for her disabled child for the time of the previously scheduled vacation. Shortly after the employee’s request, but prior to taking the FMLA leave, the employee was fired for purported behavioral problems. The employee sued her former employer, alleging violations of the FMLA. The U.S. Court of Appeals for the Third Circuit allowed the employee to proceed, rejecting the employer’s position that the FMLA requires an employee to have taken leave in order to state a claim for retaliation. Employers should be aware that an employee does not have to have taken FMLA leave in order to state a claim for retaliation; the mere request for leave is sufficient.
Contact for more information: Justin M. Penn
Erdman v. Nationwide Ins. Co., Case no. 07-3796 (3d Cir. Sept. 23, 2009)
Disability Accommodation Not Required Where No Appropriate Vacant Position Exists
After suffering from respiratory ailments caused by fumes at a pen manufacturing company, an employee took a leave of absence for 12 months, as allowed by her employment contract. After the 12-month leave, during which the employee’s physician periodically updated the employer about the employee’s condition, the employee contacted her employer about the possibility of returning to work. The restrictions on her employment prescribed by her doctor included “complete avoidance of chemical, solvent, or ink fumes, as well as any other hydrocarbon fumes.” The employee met with a doctor employed by the pen manufacturer about a month later and was offered a respirator that would deliver breathable air in order to accommodate her condition. The employee refused the offer. No other possible accommodations were discussed by either party. The employee was terminated upon the expiration of the 12-month leave period. She sued, claiming that her employer had failed to accommodate her under the Americans with Disabilities Act (ADA). The U.S. Court of Appeals for the Second Circuit rejected this argument, holding that regardless of whether her employer pursued an interactive process to accommodate her, the employee failed to establish that a possible accommodation existed that would allow her to perform the essential functions of her employment, or that a vacant position existed for which she was qualified. Although the ADA envisions employers engaging in a sufficient interactive process intended to develop a mutually agreeable accommodation of its employees’ disabilities, it does not require an employer to explore possible accommodations where none exist. Even in situations where an employee fails to suggest a possible accommodation, employers should nevertheless be careful to participate in the interactive process and make reasonable efforts to accommodate employees wherever possible.
Contact for more information: Aimee E. Delaney
McBride v. BIC Consumer Prods. Mfg. Co., No. 07-5689 (2d Cir. Oct. 5, 2009)
No Bargaining Unit Accretion Without Employee Interchange and Common Day-to-Day Supervision
A hotel employer opposed the addition of baristas at a new coffee shop (which was located in the hotel’s lobby) to an existing bargaining unit of food, beverage and other hotel employees working at the hotel’s four other food establishments. On a unit clarification petition, the National Labor Relations Board (NLRB) Regional Director accreted the baristas to the existing bargaining unit. The employer challenged the decision. The NLRB found in favor of the employer, holding that the Regional Director erred by limiting his inquiry to whether the employees shared a “sufficient community of interest.” The NLRB noted that the two most important factors for adding new employees to an existing bargaining unit are employee interchange and common day-to-day supervision. The Board then reasoned that since a franchising agreement prevented the baristas from working at the four other food and beverage establishments at the hotel, and there was no immediate common supervision among the bargaining unit employees and the baristas at the coffee shop, the baristas had a separate identity from the existing bargaining unit and therefore constituted a separate one. Employers should be mindful that absent a showing of employee interchange and common day-to-day supervision, other factors, such as similar terms and conditions of employment and similarity of skills and functions, do not justify accretion of new employees to an existing bargaining unit. This holding is especially significant where there are differing levels of bargaining power between the employees of the existing bargaining unit and the new employees to be added to the bargaining unit.
Contact for more information: Thomas Y. Mandler
Milwaukee City Center, LLC and Unite Here, Local 122, AFL-CIO, Case 30-UC-419 (NLRB Sept. 21, 2009)
FMLA Military Caregiver Leave Expanded
The recently enacted exigency and caregiver leave provisions for military families under the Family and Medical Leave Act (FMLA) were expanded on October 28, 2009, when President Obama signed into law the Fiscal Year 2010 National Defense Authorization Act (H.R. 2647). In January 2008, Congress amended the FMLA to provide exigency leave of up to 12 weeks for urgent needs related to a reservist family member’s (spouse, son, daughter or parent) call to active service. H.R. 2647 expands the exigency leave benefits to include family members of active duty service members, in addition to family members of National Guard members and Reservists. Under the current law, the FMLA also provides for caregiver leave of up to 26 weeks of unpaid leave to an employee to care for a family member (spouse, son, daughter, parent or next of kin) who is injured while serving on active military duty. H.R. 2647 expands the caregiver leave provision to include veterans who are undergoing medical treatment, recuperation or therapy for serious injury or illness that occurred any time during the five years preceding the date of treatment. These previsions were effective upon enactment and employers should review their FMLA policies to insure they reflect the expanded coverage implemented by H.R 2647.
Contact for more information: Paul J. Cherner
EEOC Issues Proposed ADA Regulations
On September 23, 2009, the Equal Employment Opportunity Commission (EEOC) published proposed regulations in order to implement the ADA Amendments Act of 2008 (ADAAA). Although the ADAAA retains the basic definition of “disability” in the Americans with Disabilities Act (ADA) as an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment, the proposed regulations change how these statutory terms are interpreted in several key ways. The proposed regulations apply a broad interpretation to the definition of “disability” under the ADA. Moreover, the threshold required for an individual to establish that he or she is “substantially limited” has been lowered so that an impairment need not “significantly” or “severely” restrict a major life activity in order to meet the standard. An impairment that is episodic or in remission may also qualify as a “disability” if it would substantially limit a major life activity when active. Similarly, the definition of “major life activities” has been expanded by providing two non-exhaustive lists of included activities and functions. The EEOC has also included specific examples of conditions where coverage under the ADA would apply, including deafness, blindness, diabetes, cancer, epilepsy and HIV/AIDS. The proposed regulations also provide that the ameliorating effect of mitigating measures should no longer be considered in determining whether a condition constitutes a disability, with the exception of ordinary eyeglasses or contact lenses. Finally, the proposed regulations significantly change the definition of “regarded as” so that it no longer requires a showing that the employer perceived the individual to be substantially limited in a major life activity. Instead, the proposed regulations provide that an applicant or employee who is subjected to prohibited conduct under the ADA because of an actual or perceived impairment, or actions based on symptoms of an impairment, will meet the “regarded as” definition of disability, unless the impairment is both transitory and minor. The proposed regulations also provide that individuals covered only under the “regarded as” prong are not entitled to reasonable accommodation. Employers must be aware of these changes to the ADA and prepared to implement new policies to account for them.
Contact for more information: James R. Pirages
Interm Final Rule Released For Genetic Information Nondiscrimination Act of 2008
Under Title I of the Genetic Information Nondiscrimination Act of 2008 (GINA) and the interim final rule, group health plans and issuers in the group market cannot: increase premiums for the group based on the results of one enrollee’s genetic information; deny enrollment; impose pre-existing condition exclusions; or carry out other forms of underwriting based on genetic information. In the individual health insurance market, GINA prohibits issuers from using genetic information to deny coverage, raise premiums or impose pre-existing condition exclusions. Additionally, the federal government issued a notice of proposed changes to the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule to prohibit health plans from using or disclosing genetic information for underwriting purposes.
Contact for more information: Anthony E. Antognoli
Hinshaw Spotlight
As detailed in another article in this newsletter, the Equal Employment Opportunity Commission (EEOC) had published proposed regulations in order to implement the ADA Amendments Act of 2008 (ADAAA). The EEOC has solicited comments to the proposed regulations. In the coming weeks, Hinshaw & Culbertson LLP will be surveying recipients of the Employment Practices Alert to solicit opinions on issues covered in the proposed regulations. Hinshaw will then analyze the results and submit to the EEOC a response based on the findings. In years past, Hinshaw took a similar course of action in responding to U.S. Department of Labor solicitations for comments to proposed changes to the Family and Medical Leave Act (FMLA), which were recognized by the Department of Labor.
This newsletter has been prepared by Hinshaw & Culbertson LLP to provide information on recent legal developments of interest to our readers. It is not intended to provide legal advice for a specific situation or to create an attorney-client relationship.
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