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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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