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

healthA recent case highlighted for me (and now for you) an interesting point under the Americans with Disabilities Act (ADA) – whether essential job functions can change. As you may know, the ADA protects employees with disabilities who, with or without reasonable accommodations, are able to perform the essential functions of his/her job. This means that the issue of what are the essential functions of the job is critically important.

According to the EEOC, the following factors should be taken into account in determining whether a job function is essential:

  • whether the reason the position exists is to perform that function,
  • the number of other employees available to perform the function or among whom the performance of the function can be distributed, and
  • the degree of expertise or skill required to perform the function.

The EEOC also identifies the following types of evidence that can be used to establish that certain job functions are essential:

  • the employer’s judgment as to which functions are essential,
  • a written job description prepared before advertising or interviewing for a job
  • the actual work experience of present or past employees in the job,
  • the time spent performing a function,
  • the consequences of not requiring that an employee perform a function, and
  • the terms of a collective bargaining agreement.

Continue Reading Employer May Change Essential Functions of the Job

US-EEOC-Seal.svgIn a prior blog post, “EEOC Says Sexual Orientation Is Protected Under Title VII!!,” I noted that the Equal Employment Opportunity Commission can be sneaky in seeking to expand the scope of the laws it enforces. It will drop bombshells in the middle of otherwise pretty innocuous guidance or resource documents, as if hoping no one notices. The latest example of this is in its just-announced (December 12, 2016) publication on the rights of job applicants and employees with mental health conditions, in which the EEOC oh-so-casually expands the reach of the American with Disabilities Act! Continue Reading EEOC Expands the ADA!

Mark of the BeastBack around Halloween, we offered you a seasonally appropriate and cautionary tale about accommodating an employee’s religious concerns. As we discussed in that blog about the case of EEOC v. Consol Energy, Inc., the employee refused to use a biometric hand scanner because he was afraid it would reveal or imprint the mark of the beast. Because the mark of the beast is supposed to appear on the right hand, the company told him to use his left hand, but the employee believed that using either hand was a problem. The company refused to permit him to record his time manually or to report it to his supervisor, and the employee chose to retire under protest. The EEOC brought suit against the company on his behalf for failure to provide a reasonable accommodation for his religious beliefs and constructive discharge (i.e. the employee was forced to quit), and the employee was awarded over a half-million dollars in damages- a death knell to the employer’s arguments!

Like a zombie, the employer has returned from the grave to ask the court to throw out the judgment on various grounds. The court’s reaction to the employer’s arguments provide some additional lessons for employers generally. Continue Reading Return of the Beast: Religious Accommodation Redux

According to the federal district court in Mendillo v. The Prudential Ins. Co. of America, the answer is “yes.” But I struggle with this decision, because I think it ties an employer’s hands and undercuts the employer’s right to demand medical information under the Americans with Disabilities Act.

In this case, a call center employee was pretty seriously injured in a car accident.  There were some performance issues that pre-dated her car accident, and they continued after her return to work. About four months later, the employee’s responsibilities were changed so that her off-line work was taken away and she did telephone work full-time. She told her supervisor that the full-time telephone work would exacerbate her back pain, since she was able to get up and stretch  when she was doing off-line work. In fact, her back pain did worsen with the full-time telephone work, which caused her doctor to order that she cut back on her hours. In addition, her performance took an immediate and significant turn for the worse. She was able to improve her performance, but it fluctuated over the next year, finally resulting in her termination. She then sued, alleging a number of claims including that the company failed to accommodate her in violation of the ADA. Continue Reading Must Employers Accept An Employee’s Stated Disability Without Question?