Tag Archives: Americans with Disabilities Act

Is Obesity A Disability Under the ADA?

Contributed by Suzanne Newcomb, March 15, 2019

Page with ADA (Americans with Disabilities Act) on the table with stethoscope

As with so many ADA questions, “it depends.” However, a pair of cases pending before the 7th Circuit Federal Court of Appeals (covering Illinois, Indiana, and Wisconsin) could provide further guidance.

The 7th circuit has not definitively ruled on whether obesity alone is a “disability.” Federal appellate courts for the 2nd, 6th, and 8th circuits (covering NY, CT, and VT; KY, MI, OH, and TN; and AR, IA, MN, MO, ND, NE, and SD respectively) have all concluded obesity is not a disability unless it is linked to some other disabling condition. In the first of two pending appeals, the trial court reached the same conclusion, ruling that “severe obesity” alone is not a disability under the ADA. (Note, Michigan state law prohibits discrimination based on body weight and a handful of municipalities have passed similar measures.)

But, employers should proceed with caution. Obese employees have defeated motions for summary judgment by arguing their employers regarded them as disabled, and any adverse action taken on the basis of that perception violated the ADA. This is precisely what happened in the second case pending before the 7th circuit.

The plaintiff, who weighed 331 pounds and had a BMI of 47.5, was excluded from his position based on a policy forbidding anyone with a BMI over 40 from working in a safety sensitive role – a policy the employer argued was necessary because those with a BMI over 40 have a substantially higher risk of developing medical conditions which can cause sudden incapacitation or impairment.

The court denied summary judgment concluding it was unlawful to act on the belief that potential future disabilities pose a present safety risk. 

Best practices:

  • Remember the ADA’s statutory definition of “disability” includes those who have an impairment that substantially limits major life activities and those who are “regarded as having such an impairment.”
  • Ensure that all job qualifications – including those designed to ensure safety – are necessary and narrowly tailored to the requirements of the particular job at issue. 
  • Focus on the duties of the position. Can the applicant or employee perform the essential functions of the job safely? If not, could he with a reasonable accommodation? If the accommodation at issue is not particularly onerous, it may make sense to provide it despite uncertainty about whether the individual truly has a disability. An individual who cannot perform the essential functions of a position with or without reasonable accommodation is not a “qualified individual” and cannot sustain an action under the ADA. 
  • When in doubt, treat the individual, at least preliminarily, as if he has a disability. Don’t assume there are no medical conditions beyond excess body weight. Engage in an interactive process to determine whether the individual has a disability, and don’t take a final adverse action until the individual has had an opportunity to provide relevant facts, including evidence of a disability.

Job Posting and Ban the Box

Contributed by Mike Wong, February 18, 2019

job application on a laptop screen

Over 33 states and 150 cities, counties and municipalities have enacted Ban-the Box laws that prohibit employers from asking about an applicant’s criminal record or criminal history prior to the applicant being selected for an interview or, if there is no interview, prior to a conditional offer of employment.

But did you know that Ban-the-Box laws can also impact your job posting or advertisement?

Yes, these laws can, and much like the Fair Credit Reporting Act (FCRA) and Americans with Disabilities Act (ADA), Ban the Box laws are being used by “professional plaintiffs” to go after employers for technical violations.

For example, New Jersey, New York City, Washington and Wisconsin’s Ban the Box laws specifically prohibit employers from asking applicants about their criminal history before making a job offer – including in job postings.  In those jurisdictions, having job postings or advertisements that state: “background check is required,” “clean criminal history,” “no felons,” “no criminal background,” or any other language that expresses any limitation in the hiring of an individual, directly or indirectly, based on his or her arrest or criminal background violate the law.

While the majority of Ban the Box laws do not expressly include prohibitions of such language in job postings and advertisements, employers now have potential exposure if they decide to include language of that kind. For example, an applicant could argue that while a state or local law does not expressly prohibit using language regarding criminal history in a job positing or advertisement, by doing so the employer is, in essence, unlawfully seeking criminal history information from job candidates. Additionally, if the state or local law prohibits discrimination against individuals with arrest records, the same legal argument the EEOC uses for Title VII discrimination claims based on arrests or convictions could be used – i.e., that the use of arrest records has a disparate impact on individuals of certain protected classes by eliminating, for example, more African American or Hispanic applicants as compared to applicants outside those groups.

Thus, while Ban the Box seems pretty straightforward, it is important to understand the details of each state and local law that may apply to your business. Moreover, it is important to review you job postings, advertisements and recruiting materials to make sure that they are up to date and not creating potential liability for you.

Helpful Guidance in Determining a Position’s Essential Functions under the ADA

Contributed by Allison P. Sues, October 19, 2018

16306823 - 3d illustration of scales of justice and gavel on orange background

Illustration of scales of justice and gavel on orange background

A recent decision from the U.S. District Court for the Northern District of Illinois sheds light on how to determine what job tasks are properly considered essential functions of a position under the Americans with Disabilities Act (ADA). A plaintiff alleging that her employer denied her a reasonable accommodation for her disability must prove that she is a qualified individual, which requires showing that she can perform all the essential functions of the job with or without an accommodation. In the recent decision, the court dismissed a police officer’s failure to accommodate claim because the police officer could not perform certain functions deemed essential to her position. Specifically, she could not ambulate independently or handle a firearm. The police officer claimed these duties were not essential because she was on limited duty indefinitely and spent most of her days working at a desk.

The court delved into federal regulations and case law to determine whether a particular job duty should be deemed essential. Written job descriptions and other indications of an employer’s judgment about a position’s essential functions provide convincing – but not controlling – evidence. Courts will also consider other evidence regarding whether a task is essential, including the amount of time the employee typically spends on the function, the consequence of not requiring the employee to perform the function, terms of any collective bargaining agreement, and the work experience of prior employees or other current employees in that same position. Courts may also make additional inquiries, more likely determining that a function is essential if any of the following are true: (i) the position exists to perform the function, (ii) there are a limited number of employees among whom the function can be distributed; (iii) the function is highly specialized and/or the employee was employed specifically for her expertise or ability to perform that function.

The court also provided helpful analysis in determining essential functions where an employee is responsible for multiple tasks on a rotating basis. A court will likely find that each of the multiple duties are essential functions, even where the employee completes some of the duties only rarely, if the employer can justify why it requires each employee in that position to be able to complete all duties. An employer may satisfy this burden by showing, for example, that the workforce is too small to justify hiring specialists for each separate task or that there are unexpected surges in demand for a particular task.

The court found that even here where the plaintiff did not generally handle a firearm in her limited duty position, the police force could require all officers to be able to handle a firearm regardless of their day-to-day duties because being able to arrest someone is a central purpose of the police force.

Employers should analyze each position in the workforce to understand the position’s essential duties before an issue arises. Being able to differentiate between essential functions and marginal functions will assist an employer in determining its obligations when an employee requests a reasonable accommodation. While an employer may be required to excuse an employee from completing marginal functions, the ADA does not require it to excuse an employee from performing essential functions.  However, it may need to provide accommodations to enable the employee to perform those essential functions.

 

Seventh Circuit Holds that Multiple-Month Extended Leaves Are Not Reasonable Accommodations Under the ADA

Contributed by Allison P. Sues, September 27, 2017

Because not all recoveries from medical conditions come in neat twelve-week packages, employers commonly need to address employees’ requests for additional leave after they have exhausted all leave afforded under the Family Medical Leave Act (“FMLA”) or company policy.

Clock and StethoscopeThe U.S. Equal Employment Opportunity Commission has long taken the position that terminating an employee who has exhausted FMLA leave, but is still not able to return to work, may violate the Americans with Disabilities Act (“ADA”). For instance, the EEOC guidance, issued on May 9, 2016, opined that providing additional leave may be necessary as a reasonable accommodation.

The Seventh Circuit Court of Appeals recently issued a decision running contrary to this EEOC guidance and the prevailing precedent in other circuits, holding in Severson v. Heartland Woodcraft, Inc., that an employee is not entitled to extended leave as a reasonable accommodation under the ADA.

In this case, employee Severson took a twelve-week medical leave from work under the FMLA to deal with serious back pain (the statutory maximum). Shortly before this leave expired, Severson notified his employer that he was scheduled to undergo back surgery, and requested an additional two to three months of leave to recover from surgery. The company denied Severson’s request to continue his medical leave beyond the FMLA entitlement, terminated his employment, and invited him to reapply when he was medically cleared to work.  Instead, Severson sued, alleging a failure to reasonably accommodate his disability—namely, a three-month leave of absence after his FMLA leave expired.

The Seventh Circuit affirmed the district court and clarified that a medical leave spanning multiple months is beyond the scope of a reasonable accommodation. Finding that the employer did not violate the ADA by refusing to provide the additional leave, the Seventh Circuit explicitly stated that an employee, who cannot not work or perform their job’s essential functions, is not a “qualified individual” under the ADA.  Further highlighting its position, the Court distinguished between the FMLA, which it held was intended to provide long-term medical leave for those who cannot work, while the ADA is meant to require accommodation only for those “that can do the job.”

Before employers in Illinois, Wisconsin and Indiana reinstate strict Maximum Leave Policies and No-Fault Termination policies, whereby employees are automatically terminated if they cannot return to work when FMLA or other awarded leave is exhausted, several limitations to Severson should be noted.

Severson’s holding is limited to “medical leave[s] spanning multiple months.” The Court acknowledged that finite extensions of leave for shorter durations – described as “a couple of days or even a couple of weeks”, but less than multiple months – may still be deemed a reasonable accommodation.

The Court further acknowledged that intermittent leaves of short duration may constitute reasonable accommodations in the same way a part-time or modified work schedule may be a reasonable accommodation for employees dealing with medical flare-ups. Moreover, employers should be cautious about maintaining 100% Healed Policies, whereby an employer requires employees to have no medical restrictions whatsoever when their leave ends.

At any time employees have exhausted their leave, but are not fully cleared to return to work, the employer should engage in the ADA’s interactive process and consider the following before deciding to terminate employment:

  • Whether the employee’s current medical restrictions affect the employee’s ability to perform the essential functions of the position;
  • If the restrictions do impact the employee’s ability to perform the essential functions, are reasonable accommodations available that would enable the employee to perform these functions;
  • Whether vacant positions exist that the employee would be qualified to perform and could be reassigned into;
  • Whether the employer has a policy of creating light-duty positions for employees who are occupationally injured and whether this benefit could be extended to the employee without posing an undue hardship; and
  • Whether the employee’s request for additional leave is definite in time and of a short duration, and if this extended leave could be provided without posing an undue hardship.

 

EEOC Lawsuit Reminds Employers That Pre-Employment Health Inquiries Are Off-Limits

Contributed by Steven Jados, June 15, 2016

A recent consent judgment entered against Grisham Farm Products, in a lawsuit brought by the EEOC, Case No. 6:16-cv-03105 (W.D. Mo.) (June 8, 2016), provides an important reminder to employers that job application questions directed at medical histories are generally off-limits.

The case arose from an EEOC Charge filed by a man who did not even submit a job application. Instead, after seeing the application’s medical history questions, he headed to the EEOC and filed a Charge of Discrimination alleging violations of the Americans with Disabilities Act, as amended (“ADA”), and the Genetic Information Non-Discrimination Act of 2008 (“GINA”).

two insurance forms on a clipboard with a pen.

The job application included a three-page health history that asked 43 questions. The top page of the history stated: “All questions must be answered before we can process your application or change authorization”—potentially indicating that applications would be rejected for failure to provide a complete medical history. The history sought information on virtually any condition an applicant might have, from allergies to varicose veins. For each “yes” response an applicant gave, indicating a current or past medical diagnosis, the history sought additional information, including the dates symptoms presented, whether hospitalization was necessary, and the name and address of the applicant’s doctors and hospital.

It did not stop there. The history inquired about current medications, including dosage, the reasons for prescription, and the name and address of the prescribing doctor. The history concluded by asking applicants to disclose—again in complete detail—whether any surgery or medical testing had been recommended, and to provide recent blood sugar and blood pressure testing results.

Considering the ADA generally prohibits employers from conducting pre-offer medical examinations or inquiring into the existence or severity of an applicant’s disabilities, it was clear that this application violated the ADA. The fact that the man had not actually applied for a job was of no consequence. The ADA affords protection to persons who are deterred from applying for a job because of discriminatory practices or policies.

Additionally, because the health history required disclosure of consultations with “‘a doctor, chiropractor, therapist or other health care provider within the past 24 months’” and identification of “whether ‘future . . . diagnostic testing . . . has been recommended or discussed’ with [a] medical provider,” the application violated GINA by soliciting information that might reveal an applicant’s family history or other risk factors for certain medical conditions.

The consent judgment included a permanent prohibition from requiring any pre-offer medical examinations or pre-offer medical inquiries and a payment of $10,000.

This case serves as a reminder that an employer may not ask a job applicant medical questions before making a job offer. An employer may ask a job applicant if they can perform the essential functions of the job. The essential job functions should be listed in a job description that is provided or made available to the applicant.

Universally Applied Seniority-Based Bidding System Trumps ADA Accommodation Says Seventh Circuit – Though Dissenter Disagrees

Contributed by Suzanne Newcomb

On December 3, the Federal Court of Appeals for the Seventh Circuit (Illinois, Indiana and Wisconsin) affirmed dismissal of a failure to accommodate claim brought by an employee bumped from a job assignment that accommodated his disability after his employer opened that assignment to seniority-based bidding pursuant to the terms of the collective bargaining agreement (CBA).

After a series of injuries and several extended leaves of absence, the employee was released to return to work with permanent restrictions that prevented him from performing many of the physically demanding essential functions of his position. The employer accommodated his restrictions by placing him into the fairly sedentary “Matrix position.” The CBA allowed employees to bid on their desired work assignments and required the employer place them in their selections according to seniority. The Matrix assignment, however, was reserved for employees with permanent restrictions and was not subject to seniority-based bidding.

The employee had held the Matrix position for years when the employer decided the position should be included in the seniority-based competitive bidding scheme. The employee did not have enough seniority to hold the position. He inquired about several no-bid positions, but none were available at the time. Ultimately he was placed on extended leave and sued.

Office PeopleThe employee claimed his employer failed to accommodate his disability by refusing to allow him to remain in the Matrix position and by failing to place him in a no-bid position. Relying on U.S. Supreme Court precedent, the Court held that the employer was not required to violate a uniformly enforced seniority system in order to accommodate an employee’s disability. The employee’s argument with respect to the no-bid positions failed because he could not show a vacancy existed at the relevant time, reaffirming that the Americans with Disabilities Act (ADA) does not require an employer to create a vacancy or “bump” other employers in order to provide an accommodation.

Notably, however, a dissent was filed. The dissenting judge pointed out that the prior precedent on which the majority relied, specifically allowed that “special circumstances” can warrant a finding that the requested accommodation is reasonable under the particular facts despite the existence of a seniority system. He concluded that evidence that the employer excluded the Matrix position from the seniority system for years could warrant such a finding. Whether the employee will ask the United States Supreme Court to review the decision remains to be seen.

Bottom line: Although this decision is a win for the employer and welcomed guidance for employers who regularly find themselves balancing individual employee’s ADA rights and its obligations under a CBA, the dissent highlights the fact that, as with all things ADA, there are no clear answers. Careful analysis of all accommodation options and a review of available positions must be conducted on a case by case basis.

Are You Prepared for Medical Cannabis?

Contributed by Noah A. Frank

Medical marijuana (MMJ) is now permitted in 23 states and Washington D.C. Out of those 23 states four of them permit recreational use. Though it remains illegal on the Federal level, the U.S. Department of Justice recently announced the release of over 6,000 inmates convicted of nonviolent drug charges. This begs the question – are you prepared for medical cannabis in the workplace?

Nondiscrimination Policies

Most states with MMJ prohibit discrimination on the basis of a worker or applicant being a registered patient. However, employers should also carefully consider that a registered patient’s underlying medical condition is likely a disability under the Americans with Disabilities Act. As a result, employers that discriminate against (or refuse to provide reasonable accommodations for) a MMJ user could face unanticipated exposure under the ADA and other equal employment opportunity laws. Therefore, employers may regulate use and impairment in the workplace, but not discriminate against the underlying condition or status as a registered patient.

19261587_sSignificantly, employers will also have to carefully scrutinize their background check process to ensure compliance with the Fair Credit Reporting Act, EEOC guidance, and “Ban the Box” laws to avoid any unintentional discrimination. This is especially true with the impending release of inmates with actual conviction histories. In general, a background check policy should be tailored to the position(s) being applied for, and employers should have a bona fide basis for disqualifying those with a criminal history (i.e., a nurse with access to controlled substances versus a groundskeeper). If there is no bona fide reason for excluding those with certain types of crimes, then do not do so.

Drug (In)Tolerance & Testing

Employers need to determine what they will and will not tolerate. Zero tolerance policies and discipline for impaired work (especially resulting in injury or damage) are permitted. Use by a non-registered user is not protected conduct (the same as using another’s codeine).

Take a close look at drug testing policies to ensure that they are based on reasonable suspicion: lack of agility, dexterity, and coordination could be the result of impairment from MMJ or other intoxicating substances, or could be the physical manifestation of the underlying protected disability. A good faith basis for considering discipline and providing the employee with the opportunity to explain will help mitigate risk of a discrimination claim.

How to Prepare for MMJ

Employers should take proactive steps today to ensure compliance with the various laws now to avoid bigger problems later. This includes:

  • Reviewing the company’s philosophy towards medical marijuana and other controlled substances in the workplace, and ensuring that managers and supervisors are training in the company’s policies.
  • Determining which positions are safety-sensitive, and updating job descriptions accordingly (side note: with impending updates to the DOL’s FLSA regulations, it is not a bad time to consider which positions are non/exempt).
  • Updating handbooks and manuals to reflect drug testing, workplace search, disability, and other related policies.
  • Engaging employment counsel to audit policies and practices to ensure compliance prior to there being an incident.