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Oktoberfest Jaunt Leads to Disability Fraud Firing

The Sixth Circuit has affirmed summary judgment for an employer who terminated an employee on FMLA leave based on its “honest belief” that the employee had “over-reported” his restrictions to avoid doing light duty work. Seeger v. Cincinnati Bell Telephone, (6th Cir. May 8, 2012). Under the labor contract, an employee on otherwise unpaid FMLA … Continue reading Oktoberfest Jaunt Leads to Disability Fraud Firing
June 3, 2012

No ADA Protection for Medical Marijuana Users

The Ninth Circuit ruled today in James v. City of Costa Mesa, that the Americans with Disabilities Act does not protect medical marijuana users who claim they are subject to discrimination on the basis of their marijuana use. The Court concluded that doctor-recommended marijuana use permitted by state law, but prohibited by federal law, is an … Continue reading No ADA Protection for Medical Marijuana Users
May 21, 2012

EEOC Does Not Issue ADA Attendance Guidance, Yet Again

The extent of an employer’s obligation to extend leave and excuse absences as a reasonable accommodation under the ADA is perhaps the most vexing ADA issue for employers. In June 2011, the EEOC held a public hearing on leave as a reasonable accommodation, and suggested it might issue guidance on the topic in 2011. When … Continue reading EEOC Does Not Issue ADA Attendance Guidance, Yet Again
April 27, 2012

Mammography Tech with Epilepsy Not Qualified under ADA and a Direct Threat of Harm

An ADAAA “rule of construction” is that an episodic impairment is a disability if it would substantially limit a major life activity when active. A Missouri federal district court has held that whether an employee with an episodic impairment is a qualified individual with a disability is also determined when the impairment is active.  The court … Continue reading Mammography Tech with Epilepsy Not Qualified under ADA and a Direct Threat of Harm
April 23, 2012

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

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