Have you read the warnings on prescription painkillers? They can be pretty scary – “May cause drowsiness.” “May cause dizziness.” “Do not operate a car or dangerous machinery.” (Or words to that effect). I think by now, everyone is aware of the risks associated with controlled substances. Certainly, the opioid epidemic did not earn its name lightly. So it’s not surprising that some employers are concerned when employees take prescription medications that come with those warnings – particularly when those employees are working with heavy machinery or sharp objects, or getting behind the wheel of a vehicle. But it is important for employers to understand when they can – and cannot – prohibit employees on such medications from working.

Continue Reading Employers – Don’t Automatically Assume Prescription Meds Pose a Danger in the Workplace

When considering a request for reasonable accommodation under the Americans with Disabilities Act, many employers focus on what will enable an employee to perform the essential functions of their job. But the reasonable accommodation obligation is actually broader than that. As set forth in the EEOC’s regulations, employers must also provide reasonable accommodations that enable an employee with a disability “to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities.” And this encompasses certain activity outside the workplace – such as parking.

Continue Reading Reasonable Accommodations Don’t Just Start at the Office Door…

In the latest entry in our series on extraordinary workplace misconduct, we must come to terms with the fact that not everyone loves birthdays or surprises. And, when an employee tells you that they don’t want a surprise birthday party, you’d best oblige them or you could face a discrimination suit and a nearly half a million-dollar jury verdict!

As the Washington Post, New York Times, and our Twitter scrolling reported, a Kentucky-based medical laboratory, Gravity Diagnostics, was found liable by a jury for disability discrimination when it fired an employee who suffered from an anxiety disorder that caused panic attacks. As a result, the jury awarded $450,000 in damages for lost wages and emotional distress. However, it’s the series of events that prompted the employer’s actions that are truly extraordinary.

Continue Reading Extraordinary Workplace Misconduct: Celebrating you is a piece of cake…

Some readers may know that I have an adorable dog. A lifelong dog-hater, we got the dog as a bribe for my son (long story), and now I love the darned thing. There are days that he is the only one in the family that I love. And it’s been great, in this year+ of WFH, to have him nearby at all times.  Many people agree – and some would like to take their fur babies to the office when they return. But, as one court recently explained, that’s only required if the dog is, in fact, a reasonable accommodation under the Americans with Disabilities Act – and there must be medical support for such an accommodation.

Continue Reading Love Me, Love My Dog? Maybe Not at Work…

By now we probably all have seen the YouTube Video of poor Danny, who finished his Zoom video meeting with his colleagues and forgot to end the call as he walked away from the screen, his colorful boxer short underwear in plain sight (along with his backscratching stretch to loosen his muscles).  Or the son of the late Steve Reeve of Superman fame (Will), a reporter who was spied at the end of a news piece he broadcasted from home without any suit pants! Ah, Danny and Will! But, other things are happening while employees work from home that raise concerns.  For example, the employee who during a conference call is slurring his speech as if intoxicated.

Continue Reading DWZ – Drinking While Zooming (And Other Telework Dilemmas)

As I discussed in a blog post last year, the Equal Employment Opportunity Commission has been bringing cases on behalf of applicants/employees who use lawfully prescribed opioids (including methadone) against employers who fail to conduct an individualized assessment of the applicant/employee to determine whether those drugs made them unqualified for the position. In EEOC v. Steel Painters LLC, the U.S. District Court for the Eastern District of Texas held that a reasonable jury could find that the employer did just that.

Continue Reading Methadone User Can Sue Under ADA

And with that obvious (and rather snarky) statement, the U.S. Court of Appeals for the Fifth Circuit made the obvious point that an employee who was asleep or unconscious on the job was unable to perform the essential functions of his job and therefore not qualified for the position under the Americans with Disabilities Act! Now, as my regular readers know, I enjoy a good snark and my blog posts about various court decisions often contain snide comments. But in this case, the (usually quite proper) Fifth Circuit took care of that all on its own…

Continue Reading “[M]aintaining consciousness is a basic element of any job.”

It is a truth universally acknowledged that an employee unable to perform the essential functions of his/her job must be in want of a transfer. And it is also quite clear under the Americans with Disabilities Act that the employer must consider a transfer or reassignment to a vacant position as a reasonable accommodation. What is less clear is whether the employee automatically gets the position (i.e. an arranged marriage) or whether the employer can require the employee to compete for the position (see, e.g. “The Bachelor”).

Continue Reading A Marriage of Convenience? EEOC Continues To Push Non-Competitive Transfer as Reasonable Accommodation

Hey baseball fans, as well as all you casual observers of the sport.  If you’re like me, you’ve noticed the huge spike in home runs (Commissioner Manfred says the balls are not juiced), some of the unexpected blockbuster trades just before last week’s trade deadline, and the emergence of young second generation stars like Vladimir Guerrero Jr. and Fernando Tatis Jr.  But there’s another significant development that you may have overlooked.  I know I was asleep at the switch and did not see the news over the winter about the renaming of the Disabled List or DL, as it’s been called for over 100 years.  Truth be told, as an employment and labor lawyer, I’ve always wondered about that term.  When a player went on that list with a hamstring pull or a sprained ankle, was I to assume he was really disabled?  Especially as that term is defined under the Americans with Disabilities Act?  Of course not. Even though the ADA can sometimes be expanded to include even transient conditions, a player with a pulled hammy is not disabled.
Continue Reading Why Is Giancarlo Stanton on the Injured List, not the Disabled List?

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.

Continue Reading Pharmacist Afraid of Needles? Be a Stickler About Essential Job Functions!!