As seen in the January, 30 2012 CT Law Tribune

Last year was a record-setting year for the Equal Employment Opportunity Commission.  It received more charges than ever, resolved more charges and obtained more monetary relief through mediation than ever, and reduced its pending charge inventory by nearly 10 percent.  The agency secured several multi-million dollar consent decrees in class actions against large employers.  To top it off, the EEOC accomplished these feats despite a hiring freeze.

The EEOC is on an upswing, so compliance is more important than ever.  Employees are filing charges in record numbers, in part due to outreach programs in which the EEOC encourages employees to go after employers who have violated the law.  In addition, the mandatory EEOC poster contains a toll-free number for employees.  For details of this program, click here .

As with many of the Obama Administration’s initiatives, the revitalized EEOC is not about changing the law but about increasing scrutiny.  This can be more significant for employers because new laws do not necessarily lead to more enforcement, but when an agency steps up enforcement of existing laws, employers need to be ready.

Take this opportunity to make sure you know whether you are in compliance.  Have you trained your supervisors?  Do your employees, and more importantly supervisors, understand the ramifications their behavior can have for the company?  Is your handbook up to date?  When did you last have an HR audit?  Make sure your company is ready if the Government focuses on you.

Brody and Associates regularly provides counsel on civil rights issues and employment litigation in general.  We also help employers with all aspects of Human Resource audit and compliance strategies.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

 A substance abuse counselor working for a nonprofit company went on FMLA leave to recover from knee surgery in 2003.  He took FMLA leave again in September 2008, for knee pain.  He exhausted his FMLA leave in the middle of December.  The employee submitted a doctor’s note stating he would need leave for a longer period of time. 

When his leave was exhausted, he failed to give a return to work date or a fitness for duty certificate.  Instead, he asked that the employer make a reasonable accommodation – hire a substitute counselor and allow him to take an indefinite leave of absence until he was fully recovered.  The employer terminated his employment while he was still on leave, claiming this accommodation created an undue hardship. 

The employee sued under the ADA.  The court found his request was not a reasonable accommodation and the employer was justified in terminating him.  Under the ADA, an employee has to be able to perform the essential functions of his job, with or without a reasonable accommodation.  The Court found the employee was unable to perform one of his essential job functions – coming to work regularly and on time.  Often, an accommodation allows the employee to perform the job without pain or with greater ease.  However, here, the accommodation request of an indefinite leave did not enable him to work.  More importantly, its indefinite tenure was unreasonable.

Employers should always take great stride to consider an employee’s request for accommodations; remembering that such consideration should be an interactive process between the employee and the company.  With the new amendments to the ADA, it is likely there will be increased accommodation requests.  Employers should consult with counsel or their Human Resources staff when evaluating such requests.  Brody and Associates regularly provides counsel on the ADA, as well as other civil rights issues and employment laws in general.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

Peter Karl Mauerhan was a sales representative for Wagner Corporation with a drug problem.  He entered voluntary outpatient rehabilitation while continuing to work at the company.  A year later, the employer made him take a drug test.  The test was positive and the Company fired him, but said he could come back if he “got clean.”  Mauerhan checked into an inpatient drug treatment program for thirty days.  Upon his discharge, his drug counselors said his prognosis was “guarded.”  The day after completing the program, Mauerhan asked for his old job.  The employer offered him a different position than before, but Mauerhan refused.  Mauerhan claimed the Company violated the ADA because they discriminated against him based on his prior drug use.

The ADA considers recovering drug addicts disabled and protects them from discrimination.  However, it does not protect current or active drug users.  Mauerhan claimed he was a recovering addict at the time, and therefore entitled to protection.  The employer believed he was still an active drug user due to his “guarded” prognosis. 

The 10^th Circuit agreed with the employer, finding that at the time Mauerhan asked for his job back, he was still an active drug user, and therefore not covered under the ADA.  The ADA provides “if the drug use was sufficiently recent to justify the employer’s reasonable belief that the drug abuse remained an ongoing problem,” then the employee is not covered.  Doctors testified it takes about three months to be truly clean from drug addiction.  Here, Mauerhan had only been in treatment for thirty days.  In addition, his prognosis upon leaving the program was only “guarded” which means his physicians were unsure that he was completely clean.  It was reasonable under such circumstances for an employer to believe the employee was still a current drug user. 

Employers should be very careful when making employment decisions regarding a former drug addict.  The Court did not articulate any bright line test for employers to follow.  The longer the employee is in or has been finished with treatment, the more likely he/she will be considered rehabilitated.  If employers are unclear, it is advisable to consult with the former employee’s doctors and counselors.  Each employee’s condition should be treated on a case by case basis. 

Brody and Associates regularly provides counsel on the ADA, as well as other civil rights issues and employment laws in general.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

Diane Ames worked at Home Depot for five years without any problems.  One day, she told her supervisor she suffered from alcoholism and asked if he could help her enroll in the Employee Assistance Program.  Ames received paid time off so she could complete a rehabilitation program.  She was allowed to return to work after passing a drug and alcohol test.  She asked for, and was granted, scheduling accommodations so she could attend Alcoholics Anonymous meetings.  Ames also provided her manager with a note from her doctor, saying she was under his care and was seeing a psychiatrist for medication management. 

One day while at work, her supervisor noticed Ames acting strangely and smelled alcohol on her breath.  She was asked to take a blood alcohol test, which came back positive for alcohol.  Home Depot decided they would terminate Ames for violating their substance abuse policy.  Her supervisor scheduled a meeting with her on January 2.  On January 1, Ames checked herself into the hospital because she had grown so anxious about the meeting that she began drinking heavily again.  On January 2, Ames did not show up for the meeting with her supervisor, and her termination letter was mailed to her house.

Ames filed a lawsuit in Federal court claiming Home Depot violated the Family Medical Leave Act, and the Americans with Disability Act.  In order for the FMLA to apply, an employee must show that at the time of the disciplinary incident, he/she  suffered from a “serious health condition” which is an “illness, injury, impairment, or physical or mental condition that involves (A) inpatient care at a hospital, hospice or residential medical care facility; or (B) continuing treatment by a healthcare provider.”  Here, Ames failed to show she was receiving continuing treatment by a healthcare provider, or was receiving care at a medical facility until after failing the alcohol test at work.  Also, the note from her doctor did not say she was receiving continuing treatment for any medical condition.

Under the ADA, alcoholism can be a disability but only if a person can prove a disability that impacted any “major life activities.”  These activities may include sleeping, walking, or eating.  Ames testified that her condition did not affect her performance at work or her activities at home.  Therefore, the District Court found Ames failed to show Home Depot violated the ADA or the FMLA.  The 7^th Circuit Court of Appeals affirmed the District Court’s decision. 

Employers should be mindful that alcoholism and other substance abuse problems may be considered disabilities under the ADA or a serious health condition under the FMLA requiring the employer to follow the guidelines of each statute.  Brody and Associates regularly provides counsel on the FMLA, as well as employment law issues in general.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

Employers should familiarize themselves with the expanded ADA definitions and ensure compliance with the law.  Brody and Associates regularly provides counsel on the ADA, as well as other civil rights issues and employment laws in general.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0565.

In Sulima v. Tobyhanna Army Depot, plaintiff Ed Sulima claimed he was discharged due to his disability in violation of the ADA.  His employer claimed the ADA did not apply because he was not “disabled.”  Under the ADA, an employee is disabled when he has “a physical or mental impairment that substantially limits one or more of [his] major life activities.” 

Sulima argued that when he began taking weight loss medication (both prescription and over-the-counter), he began making frequent and extended bathroom trips, sometimes totaling two hours during a work shift.  Sulima claimed these gastrointestinal difficulties (solely resulting from his medications) constituted a disability under the ADA. 

The court, looking at this issue for the first time, stated that such claims are viable but that they require a different analysis since they are “somewhat different from a typical ADA claim.”  To qualify for the ADA’s protections, an employee claiming side-effects-as-a-disability must show (1) the treatment is required in the prudent judgment of the medical profession, (2) the treatment is not just an “attractive option,” and (3) the treatment is not required solely in anticipation of an impairment resulting from the plaintiff’s voluntary choices.  Applying this test, the court found the first factor was not met because according to Sulima’s doctor, the medications were not required – when the doctor heard about the side-effects, he told Sulima to simply stop taking them.

Thus, although it ultimately rejected Sulima’s ADA claim, the Third Circuit Court joined the Seventh, Eighth, and Eleventh Circuits in holding employees can bring side-effects-as-a-disability claims under the ADA.  While employers covered by those circuits certainly need to take heed, this appears to be a growing trend of which all employers should be aware.  In general, when an employee indicates an inability to perform tasks due to a physical or mental impairment, you should discuss whether the employee needs a reasonable accommodation.  Your conversation may include a discussion of options including not taking the side-effect inducing drug.  However, if you believe the impairment is due solely to side-effects of non-required medication and do not believe an accommodation is warranted, you should consult competent counsel to determine your obligations. 

Brody and Associates regularly provides counsel on the ADA, as well as other civil rights issues and employment laws in general.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

In DiMare v. MetLife Ins. Co., the plaintiff went out on leave due to breast cancer.  Pursuant to the Family and Medical Leave Act (“FMLA”), the company provided a 12 week leave and notified her that her position may be filled if she does not return after 12 weeks.  Going beyond the mandates of the FMLA, the company’s practice was to hold employees’ positions until they became eligible for long term disability insurance payments, up to six months.  After that time, if a replacement was hired, the employee was notified and given the option to either separate immediately (and collect severance) or postpone termination for 30 days during which they may try to find another position with the company.

The plaintiff remained out on leave for over six months.  After her position was filled, she attempted to find another position with the company but was unsuccessful.  After the 30 day postponement, she was terminated.  She filed a lawsuit alleging gender and disability discrimination under New Jersey’s Law Against Discrimination.

In deciding the company’s motion for summary judgment (arguing for pre-trial dismissal of the plaintiff’s suit), the trial court relied on evidence that the company was merely sticking to its non-discriminatory policies and practices on leaves of absence.  Because this is the way the company dealt with all employees on leave, regardless of gender or disability, the plaintiff could not show the company singled her out in any way.  As a result, the court granted the company motion, and the Court of Appeals upheld the decision.

This reminds us that good deeds can prevail, especially when uniform enforcement of non-discriminatory policies and practices is maintained.  Brody and Associates regularly provides counsel on civil rights issues and employment litigation in general.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

To establish a case of discrimination under the ADA, plaintiffs must show (among other things) that they were qualified to perform the essential functions of their job with or without reasonable accommodations and that they suffered an adverse employment action because of their disability.  The key issue in this case was whether punctuality and attendance were essential functions of the plaintiff’s job.  While this requires an analysis of the specific facts of each case, here the Court found that the Department of Education’s rules and regulations, together with the corrective action taken to rectify the plaintiff’s attendance issues demonstrated that punctuality and attendance were essential functions of her job.  As the Court noted, because she could not perform the “essential function of regularly showing up to work,” the plaintiff could not show she was qualified for the job.  As a result, her discharge did not violate the ADA.

What is important to remember is that when you are faced with an employee who claims an inability to perform job duties due to a disability, you must determine whether those duties are essential and whether a reasonable accommodation can be made which would enable the employee to perform those duties.   Even where you cannot imagine a solution to the problem, you should ask the employee if there is a viable accommodation.  Once that process is complete, and you’ve determined the job function is essential, it’s time to uniformly apply your rules and let the chips fall where they may!

Brody and Associates regularly provides counsel on the ADA, as well as other civil rights issues and employment laws in general.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.