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by M. McClure on Sep 13, 2010 at 3:31 PM

Plaintiffs gain momentum in ADA litigationThe first cases decided under the amended ADA are beginning to appear, and, as expected, they don't look great for employers. In October of 2008, Congress passed the Amendments Act to the Americans with Disabilities Act (ADAAA), expanding the definition of disability. The new cases move away from the issue of whether the plaintiff is disabled and focus instead on whether the employer met its responsibility in the accommodation process.  Three recent cases illustrate this trend.    

Jenkins v. National Board of Medical Examiners is the only ADAAA case that has been decided by a circuit court so far.  Jenkins was a medical student that had been diagnosed with a reading disorder at a young age.  Despite this disadvantage, he successfully completed high school, college and had reached his third year of medical school before his reading disorder presented an insurmountable challenge.  The National Board of Medical Examiners refused to provide Jenkins with additional time on an upcoming test.  Jenkins sued for injunctive relief.  At trial the court applied the old, more restrictive, standard and found that Jenkins was not disabled.  Jenkins appealed.  Before the Sixth Circuit heard the case, the new standard went into effect.  Because Jenkins was requesting relief for an ongoing harm, the Sixth Circuit applied the ADAAA and found that Jenkins was disabled.  Plaintiff wins.
    
In Grizzell v. Cyber City Teleservices Marketing, Inc., the employee was sent to the Philippines for job training where he witnesses the death of a young girl.  The experience traumatized the employee, who had previously been diagnosed with post-traumatic stress disorder (PTSD).  The employee told his employer that he might need treatment for PTSD, but the employer refused to accommodate the employee’s request.  A few weeks later, the employer fired him.  The employee sued; the employer filed a motion to dismiss; and the court held that PTSD is a disability under the ADAAA and the case should go to trial.  Plaintiff wins.
    
In Hoffman v. Carefirst of Fort Wayne, Inc., the employee was in remission after treatment for renal cell carcinoma and had been released for work with no restrictions by his doctor.  One year later, the employer changed the employee’s hours from 40 a week to 65-70.  When the employee told his employer that he could not work that long for health reasons and provided a statement from his doctor to that effect, the employer fired him.  Later, the employer called the employee, stating that he had not been terminated, and could work 40 hours a week, but could no longer work from home and must commute to a location an hour away.  The employee was not amused, and told the employer that because he had already been fired, he was not coming back to work under those conditions.  The employee then sued the employer for wrongful discharge under the ADAAA.  The employer filed a motion for summary judgment, claiming that the employee was not disabled.  The Court held that cancer in remission can be a disability, and held for the employee.  Plaintiff wins.
    
The score so far: Plaintiffs 3, Employers 0.  In every ADAAA case the courts have ruled on to date, in addition to the three discussed above, the employee has been found to be disabled.  This is a major shift for employers.  Employers now need to focus on the accommodation process and give real thought to whether an accommodation is available to assist an employee who has medical concerns.   

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by M. McClure on Sep 5, 2009 at 12:11 PM
Filed in ADA | FMLA

Exception to company policyIn HR circles, we joke that no good deed goes unpunished.  A well-intended exception to a company policy can turn into Exhibit A of a lawsuit.  For that reason, employment lawyers generally preach "no exceptions."  But exceptions that are grounded in good business judgment can provide management flexibility, create employee goodwill, and help to make your company an employer of choice.

In Hearst v. Progressive Foam Technologies, an Arkansas employer allowed an employee to take FMLA-protected time away from work before the employee was technically eligible for the leave.  The employee worked for Progressive Foam for nine months before he was injured off the job.  The FMLA requires that an employee work a full year before he or she is eligible for leave.  Here, the employee requested a month of FMLA leave, and Progressive Foam allowed it.

The employee then extended the leave to undergo surgery, stretching the leave into four months.  After the first twelve weeks passed, Progressive Foam informed the employee that his FMLA leave had expired, but agreed to extend the leave 30 more days based on his doctor's statement.  The employee then notified Progressive Foam that he would need another surgery and another month to recover, and Progressive Foam fired him.  

The employee filed an FMLA claim, arguing that because he did not work for Progressive Foam for a year when he initially requested leave, he was ineligible under the FMLA and that none of the time off before his one-year anniversary should be counted.  The court disagreed and found that "equity trumped" the employee's argument.  Although FMLA provides a minimum twelve-month work requirement, employers are free to lower the standard if they wish.  Here, Progressive Foam not only allowed the employee to take FMLA leave before he worked twelve months, it also allowed him four weeks of extra time. 

Bottom Line:  For making an employee-friendly exception, Progressive Foam found itself in litigation.  Still, I think Progressive Foam made the right decision.  Allowing an employee to take FMLA-protected leave before he or she is technically qualified creates goodwill with your employee base, may help you comply with the requirements of the Americans with Disabilities Act, and is sometimes just the right thing to do.  Yes, often good deeds are punished, but Progressive Foam, like other employers, may have reasoned that a little flexibility grounded in good business judgment can improve employee retention and productivity.  So, go ahead and do the right thing.     

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by M. McClure on May 25, 2009 at 11:29 AM
Filed in ADA
The US Supreme Court recently delivered a Pregnancy Discrimination Act (“PDA”) decision that won’t have relevance for most employers, but it may give guidance as to how the Court might rule on the issue of whether the ADAAA definition of disability should be applied retroactively.   

In AT&T v. Hulteen, the Court considered whether AT&T’s pre-PDA policy of denying women service credit for time spent away from work for the birth of a child violated the PDA. The Court looked, in part, to Landgraf v. USI Film Products to support its conclusion that Congress did not intend the PDA to apply retroactively and therefore, the denial of service credit for time away from work due to pregnancy was lawful.

Similarly, Eighth Circuit district courts have looked to Landgraf to deny the retroactive application of the ADAAA when considering the standard of disability.  Nyrop v. Independent School District No. 11 and Kirkeberg v. Canadian Pacific Railway.  Based on the Supreme Court’s decision in Hulteen, employers should feel confident that the Supreme Court would use the pre-ADAAA standard for disability for employment actions that occurred before January 1, 2009.   

The Bottom Line:  Review your disability accommodation process to make sure that your company is considering the new definition of disability under the ADAAA, which will cover many more employees than the ADA.  For employment actions after January 1, 2009, courts will be focusing primarily on whether the accommodation process was effective, rather than on whether the employee was disabled.

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by M. McClure on Apr 23, 2009 at 11:16 AM
Filed in ADA
The Eighth Circuit Court of Appeals recently underscored an employer’s right to discharge an employee who requests an indefinite leave under the ADA. Peyton v. Fred’s Stores of Arkansas, Inc.  The court found that the employee’s request for an indefinite leave for cancer treatment was not a reasonable accommodation under the ADA, and the employer did not violate the law by discharging her.

The employee began her employment as a Store Manager at Fred's Stores on December 5, 2005.  On January 9, 2006, the employee was hospitalized. While in the hospital, the employee’s manager called to ask what accommodation she needed.  The employee responded that she did not know how long she would be absent. On January 14, the employee was discharged.  The court noted that the circumstances were “unfortunate,” but upheld the termination.

The Bottom Line:  While the ruling in Peyton is very helpful for employers, it's important to note that the employee was not protected by the FMLA because of her length of service.  An employer should allow an employee to exhaust all FMLA leave and engage in the ADA interactive process before moving to termination.

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