Reasonable Accommodation

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. Continue Reading The Smoke Hasn’t Cleared: What’s the Workplace Impact of the FDA’s Approval of a Marijuana Based Drug?

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! Continue Reading What Is the EEOC’s Position on Post-offer/Pre-employment Medical Exams?

So after a hiatus of many years, the Department of Labor has once again begun issuing opinion letters, which are responses to a particular employer’s situation that offer guidance to all employers on specific issues under the Fair Labor Standards Act. This is quite exciting for employment law nerds like me – and one of these letters highlighted an interesting interaction between the FLSA and disability laws like the Americans with Disabilities Act and analogous state laws. (OK, I know that you’re on the edge of your seat now…) Continue Reading When the FLSA and the ADA Meet…

As an avid practitioner of yoga (much to my surprise – I always assumed I was too type A for inner focus and meditation), I was highly entertained by a recent case in which an employee requested to attend a yoga class as a reasonable accommodation under the Americans with Disabilities Act. Now, in my 25 years of practice as an employment attorney, I have seen many interesting requests for accommodation, but this was a new one for me. Continue Reading Yoga Is Not a Reasonable Accommodation

Only days after California started selling recreational pot, which had been legalized under state law, CNN reported that Attorney General Jeff Sessions will announce that he is rescinding Obama-era guidance that had set forth a policy of federal non-interference with state legalization laws. This action further complicates an already confusing situation for employers struggling with how to navigate the battling federal and state laws on the workplace impact of marijuana use. Continue Reading The Federal Government Is Challenging State Legalization of Marijuana – What Does This Mean for Employers?

Many employers have drug-free workplace policies that require employees to disclose if they are taking prescription (and perhaps over-the-counter drugs) that could affect their ability to perform the essential functions of their job safely and/or effectively. This requirement seems pretty sensible, right? But according to the Equal Employment Opportunity Commission, it violates the Americans with Disabilities Act! Continue Reading Be Careful Asking About Employees’ (Non)Prescription Drug Use

The consensus amongst employers in the recent past has been that, because federal law categorizes marijuana as an illegal substance, employers could take adverse action against individuals who tested positive for marijuana (refusing to hire, disciplining or terminating). In that same vein, because marijuana was illegal under federal law, the thought was that an employer had no obligation to provide accommodations to workplace policies, such as drug testing policies, to individuals who tested positive because of medical marijuana use.  (Except in Nevada, because it is the only U.S. jurisdiction whose statute requires accommodations for medical marijuana users).  However, a recent case, Barbuto v. Advantage Sales & Mktg., LLC, has seemingly caused the traditional line of thinking to go up in smoke. Continue Reading Do Employers Have to Provide Accommodations for Medical Marijuana Use?

I am often surprised (and highly amused) by the excuses offered by employees to justify their misconduct. And by the fact that they’re often willing to litigate over them! A recent example of this can be found in the case of Alamillo v. BNSF Railway Co.

The employee worked an “extra board” schedule, meaning that he would report to work when called, rather than the usual 5-day a week regular schedule. An extra board employee who fails to answer three phone calls within a 15-minute period is marked as having “missed a call.” Under the company’s policy, five missed calls within a 12-month period may result in termination. Continue Reading Extraordinary Employee Excuses

Judge_Gorsuch_official_portraitA colleague recently brought to my attention a 2014 employment case written by then-Circuit Judge Gorsuch for a panel of the U.S. Court of Appeals for the 10th Circuit – a particularly interesting opinion that may give us hints as to how Justice Gorsuch may rule in future employment cases before the Supreme Court.

In Hwang v. Kansas State University, an assistant professor was diagnosed with cancer and received a six-month leave of absence. (In the opinion, Judge Gorsuch specifically noted it was a “(paid) leave.” Whether or not it was paid is irrelevant to the legal analysis, but his express mention of payment suggests approval of the employer’s actions as exceeding the norm). Towards the end of the six months, she requested additional leave of apparently another few months. The University, however, had an inflexible policy limiting leave to six months, and it denied her request. The professor then sued, claiming that the University’s inflexible leave policy violated the Rehabilitation Act. Continue Reading Justice Gorsuch and the ADA?

healthFollowing up on my recent post, “Employer May Change Essential Functions of the Job,” I thought we’d discuss another little-mentioned aspect of essential job functions under the Americans with Disabilities Act – job functions that are rarely performed can still be essential!

As we’ve previously discussed, the ADA protects employees with disabilities who, with or without reasonable accommodations, are able to perform the essential functions of his/her job. The ADA regulations define “essential function” as “a fundamental job duty of a position.” But how do you determine what are the essential functions of a particular job? According to the Equal Employment Opportunity Commission (which is the federal agency charged with enforcing the ADA) and the regulations, the following factors should be taken into account in determining whether a job function is essential: Continue Reading Rarely Performed Job Functions May Still Be “Essential” Under ADA