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Eternal Tribute to Deceased Ex-Employee Required in Severe Obesity ADA Case

When a 527 pound employee at a residential drug and alcohol treatment center was terminated, she filed an ADA charge with the EEOC, claiming her severe obesity was the reason. She died while her charge was pending. The EEOC sued her former employer and the parties have resolved the lawsuit with a Consent Decree. EEOC v. … Continue reading Eternal Tribute to Deceased Ex-Employee Required in Severe Obesity ADA Case
April 22, 2012

Hunter Tracked Into Woods; FMLA Claim Survives

A man walks into the woods with a gun and sits in a comfortable chair already set up in a blind. An hour earlier that Monday, 2 ½ hours into his shift, he told his employer he was in severe pain and could not perform his work duties. Because the employee’s FMLA requests tended to … Continue reading Hunter Tracked Into Woods; FMLA Claim Survives
April 19, 2012

Regular Attendance is Essential Function of ICU Nurse Post; Request for Unlimited Absences Unreasonable

 Whether and to what extent attendance is an essential job function is perhaps the most vexing ADA issue. In Samper v. Providence St. Vincent Medical Center (9th Cir April 11, 2012), the plaintiff, an ICU neo-natal nurse with fibromyalgia, asked to “opt out” of the employer’s unplanned absence policy as an accommodation.  In a remarkably refreshing … Continue reading Regular Attendance is Essential Function of ICU Nurse Post; Request for Unlimited Absences Unreasonable
April 12, 2012

The Worst Case Scenario: Discussing Performance and FMLA Leave at the Same Time

Worst v. Glynn County School District (S.D. Ga. March 29, 2012) reminds employers that the  best case scenario is to avoid connecting performance issues and leave. Worst, a third grade teacher, told her principal she would need leave for surgery beginning a month hence. Before Worst’s leave began, her principal spoke with her about her … Continue reading The Worst Case Scenario: Discussing Performance and FMLA Leave at the Same Time
April 6, 2012

Gimme Shelter–and Summary Judgment–in the ADA 501(c) “Safe Harbor”

When dealing with ADA claims relating to benefit plans, make sure to plot the coordinates for the ADA’s Section 501(c) “safe harbor.” Sections 501(c)(2) and (3) protect employers from liability for conduct that  would otherwise violate the ADA if it were taken pursuant to an insured or self-insured benefit plan so long as the plan … Continue reading Gimme Shelter–and Summary Judgment–in the ADA 501(c) “Safe Harbor”
April 1, 2012

U.S. Supreme Court Sharply Divided On FMLA Application to States: Two Decisions, Ten Opinions, One Constitutional Thicket

On the issue of whether states, as employers, may be liable for damages for violating the FMLA, it is fair to say that the U.S. Supreme Court lacks a consensus. On March 20, 2012, the Court said states cannot be sued for damages for violating the self-care provisions of the FMLA, i.e., those provisions dealing with an … Continue reading U.S. Supreme Court Sharply Divided On FMLA Application to States: Two Decisions, Ten Opinions, One Constitutional Thicket
March 25, 2012

Flexible Work Schedule for All: Greater Challenge or Greater Profits?

Employers challenged with scheduling modifications due to reasonable accommodation requests under the ADA, intermittent leave requests under the FMLA, and paid sick leave requests in some jurisdictions, but looking to increase their profitability, might want to keep an eye on H.R. 4106, the Working Families Flexibility Act (WFFA). Introduced in the House of Representatives on … Continue reading Flexible Work Schedule for All: Greater Challenge or Greater Profits?
March 12, 2012

Last Word on Accommodation of Last Resort Yet To Be Spoken

When an employee cannot perform the essential functions of his or her position, with or without an accommodation, due to a disability, an employer must consider “the accommodation of last resort”—transfer to a vacant lateral or lower position for which the employee is qualified. The circuit courts have split on whether an individual with a … Continue reading Last Word on Accommodation of Last Resort Yet To Be Spoken
March 10, 2012

Employee With Migraines Not Disabled–There’s Hope for the “Coverage” Obsessors!

In 2011, an EEOC Commissioner noted that one aim of the ADAAA was to have the parties “stop obsessing about coverage”, i.e., about who is “disabled,” and move to the merits of the substantive claim. A Tenth Circuit decision suggests that there is still value in obsessing about ADA coverage. In Allen v. SouthCrest Hospital … Continue reading Employee With Migraines Not Disabled–There’s Hope for the “Coverage” Obsessors!
March 6, 2012

Who Cares? A Son Deciding Whether to Remove His Mother From Life Support Cares

Courts have struggled to determine who “cares for” a covered family member under the FMLA and who seeks leave for compassionate reasons which fall short of the “caring for requirement. See, e.g., Who Cares, Where? ; Who Cares? And Who Merely Assists Under the FMLA? The Sixth Circuit has held that an employee who sought … Continue reading Who Cares? A Son Deciding Whether to Remove His Mother From Life Support Cares
February 21, 2012

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