Employment Law Observer

On September 30, 2024, Chief Judge Laura Swain of the Southern District of New York, issued a ruling that a standalone website is not a place of public accommodation under Title III of the Americans With Disabilities Act (ADA).

As businesses prepare to re-open, many employers will be concerned about the risk of workplace transmission of the COVID-19 disease. Testing employees before allowing them to enter the workplace is one preventative measure employers are considering. However, this measure has been clouded by uncertainty, because a test for COVID-19 could be considered a medical inquiry under the Americans with Disabilities Act (ADA), which is only permitted if the inquiry is job-related and consistent with business necessity.

Throughout the COVID-19 pandemic, the issue of whether an employer may lawfully terminate an employee who has contracted COVID-19 has continued to arise. Terminating an employee because they have contracted COVID-19 carries significant legal risk. Some employers might consider the decision to terminate an employee a safety measure meant to protect employees and customers from coming into contact with someone who has had the illness. But doing so may run afoul of several federal statutes, including the Families First Coronavirus Response Act (FFCRA), as well as the Family and Medical Leave Act (FMLA), and the Americans with Disabilities Act (ADA).

The Seventh Circuit Court of Appeals has issued another ruling regarding an obesity-related disability accommodation request under the American with Disabilities Act (ADA). Earlier this past summer, we reported on another Seventh Circuit case, in which the court held that obesity is not an ADA-protected disability unless it is caused by a physiological disorder or condition. In Ronald Shell v. Burlington Northern Santa Fe Railway Company, the Seventh Circuit reversed a district court's decision, and ruled that an obese applicant for a safety-sensitive position—who was not hired due to his obesity—cannot claim discrimination under the "regarded as" prong of the ADA.

If you do not like your boss, can you demand your employer provide you with a new one? A federal district court in Montana recently rejected such an accommodation request in a well-reasoned case involving the Americans with Disabilities Act (ADA) and related state law. While the court did not rule out the requested accommodation as unreasonable as a matter of law, it did find the request was not appropriate under the facts of the case.

The U.S. Court of Appeals for the Eighth Circuit will soon be deciding a case that may have important implications on the viability of class actions for employment discrimination under the Americans with Disabilities Act (ADA). In Harris v. Union Pacific Railroad, the Eighth Circuit will look at whether a large class can be certified in ADA litigation notwithstanding certain individualized inquiries inherent to the ADA.

Regulators, judges and academics have all been vexed over the issue of whether obesity, not caused by an underlying physiological condition, is a disability covered by the Americans with Disabilities Act (ADA). Notwithstanding existing EEOC Enforcement Guidance that obesity is in and of itself protected under the ADA, the Seventh Circuit Court of Appeals recently weighed in on the issue and held obesity is not an ADA-protected disability unless it is caused by a physiological disorder or condition.

A recent decision issued by the Massachusetts Supreme Judicial Court offers up a good reminder that what employers may consider FMLA abuse may not in fact be FMLA abuse under the law. That's exactly the scenario that played out in Richard A. DaPrato vs. Massachusetts Water Resources Authority.

It is often a challenge for employers to decide on who will deliver the bad news to an employee that their employment has ended. That decision may depend on who can connect with an employee and cause the least amount of personal and workplace turmoil.

In a failure to accommodate claim under the Minnesota Human Rights Act (“the MHRA”), a federal judge granted summary judgment for the employer, finding the employee’s after-the-fact explanation of his misconduct was not a valid request for accommodation under the MHRA.

A central tenet of the Americans with Disabilities Act is that an employee must be a qualified individual with a disability to receive its protections. A qualified individual with a disability must be able to perform the essential functions of the position with or without a reasonable accommodation. While an employer may modify the duties for an employee to accommodate medical restrictions, this does not mean the essential purpose of the original job must change. The Northern District of Illinois recently addressed this issue in a case involving a Chicago police officer. The officer had suffered several disabling strokes. For years, she worked in a light duty assignment taking police reports over the phone.

The Sixth Circuit Court of Appeals recently issued a decision upholding a jury's guilty verdict against a large national retailer. Although a straightforward application of the Americans with Disabilities Act, this case a great example of how strict enforcement of company policy can run afoul of the Act’s prohibition against discrimination and an employer’s obligation to provide reasonable accommodations.

New Jersey is the latest state to offer clarity on an employer's obligations to accommodate its employees' medical marijuana use. In Cotto v. Ardagh Glass Packaging, New Jersey's Federal District Court held that neither the New Jersey Law Against Discrimination ("NJLAD") nor the New Jersey Compassionate Use Medical Marijuana Act ("CUMMA") requires an employer to waive a drug test as a condition of employment for an employee who uses medical marijuana.

Working full-time hours is an essential function of a full-time job, right? Not necessarily, said the Sixth Circuit Court of Appeals in a Hostettler v. The College of Wooster. When the job can be done on a reduced schedule, at least in the short term, employers have a duty to accommodate.

The Seventh Circuit Court of Appeals recently determined that an Illinois Sheriff’s Department did not violate the Americans with Disabilities Act (ADA) by declining to provide a deputy his requested accommodation, an SUV, and instead transferring him to a position that did not require driving. The deputy had alleged the Department’s failed to accommodate him by refusing to provide him with an SUV, then retaliated against him by transferring him to a courthouse duty position.

A “100-percent healed” policy refers to a practice or procedure that mandates that an employee be released to work by his physician without any restrictions before he may return to work. For example, if an employee who took FMLA leave for carpal tunnel surgery was released to return to work with a reasonable restriction, e.g., 10 minute break after every hour of prolonged typing, a 100-percent healed policy would prevent the employee from returning to work, perhaps altogether if the restriction becomes permanent.

Many times, employers evaluate disability claims by simply checking the boxes. It’s easy to develop tunnel vision, especially when the employer feels the issue is narrowly defined by an existing law or policy, e.g., a law or employer policy requiring that certain employees be vaccinated. However, this narrow frame of mind may cause employers to miss the complete picture. A recent 3rd Circuit Court of Appeals (DE, NJ, PA) decision illustrates the consequences of missing the big picture. In Ruggiero v. Mount Nittany Medical Center, the court addressed the interplay between a hospital’s vaccination policy and the ADA, holding held an employee’s ADA claim could proceed because the hospital failed to engage in the interactive process. The Court held the hospital had a duty to engage in the process once aware of her disability and request for accommodation, regardless of its policy requiring that all employees be vaccinated.

A recent Southern District of California court decision provides California employers with additional guidance on what constitutes a reasonable accommodation.

Too often, we think of Americans with Disabilities Act (“ADA”) claims in terms of discrimination and failure to accommodate. Employment lawyers typically see interference claims in the context of other employment statutes, such as the Family Medical Leave Act (“FMLA”). However, the ADA also includes a provision prohibiting interference. It is unlawful for an employer to “coerce, intimidate, threaten or interfere with any individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by the ADA.” 

Last week the Seventh Circuit dealt a blow to the EEOC's continued position that medical leave is a reasonable accommodation when the leave is (1) of a definite, time-limited duration; (2) re-quested in advance; and (3) likely to enable the employee to perform the essential job functions upon return. The panel rejected that position, noting it glossed over the length of the requested leave, improperly transforming the ADA into "an open-ended extension of the FMLA."