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Disability Access Litigation and ComplianceBlog Posts

Seventh Circuit Tips Balance on ADA’s Accommodation of Last Resort 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. Circuit courts had been evenly divided on whether an individual with … Continue reading Seventh Circuit Tips Balance on ADA’s Accommodation of Last Resort September 23, 2012	Adverse Impact on Co-Workers of a Requested Accommodation under ADA Relevant in Determining Essential Functions We posted recently about an Eighth Circuit decision in which the court held that rotating shifts was an essential function because “[i]f [plaintiff] were switched to a straight day shift and not required to work the rotating shift, then other Resource Coordinators would have to work more night and weekend shifts.” Another court has … Continue reading Adverse Impact on Co-Workers of a Requested Accommodation under ADA Relevant in Determining Essential Functions September 23, 2012	Plaintiff With Many Chemical and Other Sensitivities Not Qualified Under Rehab Act A plaintiff with chemical or other sensitivities alleging disability discrimination is not unusual. The typical claim is that such a plaintiff, despite such sensitivities, is a qualified individual with a disability and the employer failed to accommodate those sensitivities. The pro se plaintiff in an Eleventh Circuit case making that claim, a nurse in a … Continue reading Plaintiff With Many Chemical and Other Sensitivities Not Qualified Under Rehab Act September 11, 2012
Rotating Shifts is Essential Job Function, Citing Impact on Co-Workers as Well as Business Justification Recall our post concerning the claims of the acrophobic bridge worker and incontinent court reporter that rotating through job assignments was not an essential function of their jobs. Now comes a “Resource Coordinator” seeking a straight day shift as an accommodation to her disability and claims that working rotating shifts is not an essential function … Continue reading Rotating Shifts is Essential Job Function, Citing Impact on Co-Workers as Well as Business Justification September 4, 2012	Court Issues Leave Limits Guidance: Will Employee Be Able to Perform Essential Functions on an Estimated Date Within 6 Months? The question frustrating employers for decades remains: how much leave, beyond FMLA and employer policies, must an employer give a disabled employee as a reasonable accommodation under the ADA? More than a year after the EEOC hosted a public hearing on this topic, raising hopes that guidance may be forthcoming, only to have those hopes dampened … Continue reading Court Issues Leave Limits Guidance: Will Employee Be Able to Perform Essential Functions on an Estimated Date Within 6 Months? September 4, 2012	Reminder to Philadelphia Employers: You May Have to Provide Your Employees with Paid Sick Leave As of July 1, 2012, several employers in Philadelphia now have to provide their employees with paid sick leave. Pursuant to an amendment to Chapter 17-1300 of the Philadelphia Code, titled “Philadelphia 21st Century Minimum Wage and Benefits Standard,” certain entities providing services to, or receiving financial aid from, the City of Philadelphia must provide … Continue reading Reminder to Philadelphia Employers: You May Have to Provide Your Employees with Paid Sick Leave August 31, 2012
Private Investigator’s Report Supports “Honest Suspicion” of FMLA Misuse An employer had an ”honest suspicion” that an employee was not using FMLA for its intended purpose based in part on the report of a private investigator, according to the Seventh Circuit. The Court affirmed summary judgment for the employer. Scruggs v. Carrier Corporation. (7th Cir. August 3, 2012). The employer had hired the investigator … Continue reading Private Investigator’s Report Supports “Honest Suspicion” of FMLA Misuse August 23, 2012	Are Weeks “Off” in a Rotational Schedule Counted in Calculating FMLA Leave? When an employee works a “rotational” schedule—typically weeks “on” followed by weeks “off”—do the “off” weeks count when calculating FMLA leave? An Oklahoma federal court held that an employer did not violate the FMLA by counting scheduled weeks off as FMLA leave. Murphy v. John Christner Trucking (D. Ok. Aug. 15, 2012). In 2010, an Alaska federal … Continue reading Are Weeks “Off” in a Rotational Schedule Counted in Calculating FMLA Leave? August 18, 2012	It Depends on Your Definition of “Has”: Connecticut Appellate Court Rejects State Law “Perceived Disability” Claim. The Connecticut law prohibiting discrimination against an individual who has a “physical disability” does not create a cause of action for discrimination by someone who does not have, but is perceived to have, a physical disability, according to the Connecticut Appellate Court. Desrosiers v. Diageo (Aug 14, 2012). The Court noted that the state law … Continue reading It Depends on Your Definition of “Has”: Connecticut Appellate Court Rejects State Law “Perceived Disability” Claim. August 15, 2012
Employer Must Reduce Performance Standards to Take FMLA Absences into Account While the FMLA does not require an employer to reduce its performance standards when an employee is actually on the job, the FMLA “can require that performance standards be adjusted to avoid penalizing an employee for being absent during FMLA-protected leave,” according to the United States Court of Appeals for the Seventh Circuit. Pagel v … Continue reading Employer Must Reduce Performance Standards to Take FMLA Absences into Account August 13, 2012

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