Reasonable Accommodation

According to Pharmajet Blog, a surprising number of pharmacists suffer from trypanophobia – the fear of giving injections, which most in their profession have to do these days during flu season. As Pharmajet notes, the Americans with Disabilities Act generally does not help the needle-phobic pharmacist because companies have a right to define the essential functions of a job.


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An employee requested that she be permitted to leave work early every day due to her anxiety triggered by driving home in heavy traffic (those of us in major metropolitan areas would never survive!). When her demand was rejected and she ended up being terminated, Heather Trautman brought suit against her employer, alleging violations of the Americans with Disabilities Act, the Family Medical Leave Act, and related state laws, Trautman v. Time Warner Cable Texas, LLC.
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The U.S. Court of Appeals for the Ninth Circuit has a reputation as an employee-friendly forum.  Yet that Court recently rendered a decision that employers should applaud.  In Carlson v. Charter Communications, LLC, the Ninth Circuit refused to revive a former employee’s lawsuit against his employer in which he alleged that he was wrongfully terminated due to his legal use of medical marijuana.  Interestingly, the panel of the Court that issued the decision consisted of two judges appointed by Presidents Clinton and Obama and one judge appointed by President George W. Bush.  The case involved a Montana statute known as the Montana Marijuana Act, which allows patients with state-issued medical marijuana program cards to have a certain amount of marijuana in their possession.
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A recent case highlighted a important point under the Americans with Disabilities Act that is often overlooked – reasonable accommodations are not limited only to enabling employees with disabilities to perform the essential functions of their jobs! They must also be provided to allow those employees to enjoy privileges and benefits of employment equal to non-disabled employees!
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We’ve talked about this before.  There is an ongoing tension between state laws decriminalizing or legalizing marijuana for medicinal purposes and federal law, under which marijuana is still classified as an illegal Schedule I Controlled Dangerous Substance.  Back in July, we wrote in our blog that the FDA had recently approved Epidiolex (cannabidiol), which contains a marijuana-derived drug substance, for the treatment of two rare forms of epilepsy.  As we stated in that blog post, this approval by the FDA did not necessarily signify that the federal government would soon reclassify marijuana, removing it from the list of Schedule 1 drugs because it has a medical purpose.
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I’m embarrassed to admit that I used to be one of those people who hate dogs.  How could anyone dislike an adorable bundle of fur that excitedly greets you each time you walk in the door, you ask?  I know, it’s crazy.  Fortunately, I’ve come to my senses and now gush over any dog I see – anytime, anywhere.  So this begs the question: will I ever be able to see a dog every day while I’m at work?
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Recently, I blogged about a press release from the Equal Employment Opportunity Commission in which it misstated the law on post-offer medical examinations under the Americans with Disabilities Act. I was hoping that was a one-off mistake. But another recent EEOC press release has given me some concern, because I believe that it again misleads employers on their obligations under the ADA – this time with regard to associational discrimination.
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The FDA recently approved Epidiolex (cannabidiol), which contains a marijuana-derived drug substance, for the treatment of two rare forms of epilepsy.  Does this mean that the federal government is saying that people can now begin using a marijuana-based drug treatment – including employees in the workplace? Not so fast.
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This week, the Equal Employment Opportunity Commission trumpeted a $4.4 million settlement in a lawsuit in which the EEOC claimed that Amsted Rail had violated the Americans with Disabilities Act by disqualifying applicants based on the results of a test for carpal tunnel syndrome. In the EEOC’s press release, Andrea G. Baran, regional attorney for the EEOC’s St Louis District Office, was quoted as follows: “While it is lawful under some circumstances for employers to conduct limited medical exams after making conditional offers to job applicants, it is not ‘anything goes’.” Wait, what? Actually, I thought it was “anything goes” at that point!
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