#ReasonableAccommodations

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.

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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…

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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”).

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My interest is piqued by laws with unusual twists, like the Emeryville, California ordinance that permits the use of sick leave to care for a family member’s service animal (about which I blogged previously). Here’s another one – Pittsburgh recently passed a pregnancy accommodations ordinance that extends protections to the partners of pregnant employees!

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In its latest edition of the Digest of EEO Law, the Equal Employment Opportunity Commission included an article entitled, “Religious Accommodation in the Workplace: An Overview of the Law and Recent Commission Decisions.” Although the article summarizes federal sector decisions, it provides guidance to private employers on the EEOC’s overall position on religious accommodations – and (just in time for Halloween) the conclusions are a little scary!

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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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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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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…)
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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.
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