Employment Law Blog

Does your ADA accommodation have to be perfect, or can it just get the job done?

The Americans with Disabilities Act (“ADA”) requires that employers provide “reasonable accommodations” to those with disabilities to perform the essential functions of their jobs. These accommodations cannot impose an undue hardship on the employer, however. This necessarily raises the question as to whether an accommodation must be the accommodation a disabled employee requests or if an employer may substitute an accommodation that reasonably facilitates the employee in his or her employment. The Second Circuit, in the case of Noll v. IBM, recently sided with the employer, ruling that an employee is not entitled to the “perfect” accommodation, merely a reasonable one. More >

Morbid Obesity is Not a Disability in Kentucky – For Now

There’s no question that obesity is a national health crisis, with the Centers for Disease Control and Prevention estimating that more than a third of adults in the U.S. are obese. In 2013, the American Medical Association pronounced that it now finds obesity to be a disease, adding more fuel to the fire that suggests individuals afflicted with this disease could be considered “disabled” under the Americans with Disabilities Act (“ADA”). With regard to state law, however, the Kentucky Supreme Court closed the door – at least, for the time being - on disability claims with regard to obesity in the case of Pennington v. Wagner’s Pharmacy, Inc.[1] More >

ADA “Direct Threat” Defense Just Got a Little Easier

The rights and protections afforded to those with disabilities by the Americans with Disabilities Act (“ADA”) are not without limitations. Accommodations for disabled employees must be reasonable, and the employee must still be able to perform essential job functions with an accommodation. Additionally, the employee’s disability cannot pose a risk to her- or himself or others in the course of job functions if that risk cannot be eliminated or reduced by a reasonable accommodation. This is known as the “direct threat” defense – adverse employment or hiring actions taken against an employee or applicant were done so to mitigate a direct threat to the safety of the employee or others. More >

Anxiety over Reasonable Accommodation under the ADA for Social Anxiety Disorder

Employers might be just a bit more anxious after learning that the Equal Employment Opportunities Commission (“EEOC”) defined the “ability to interact with others” as a major life activity, bringing social anxiety disorder into the scope of protection afforded by the Americans with Disabilities Act (“ADA”). The Fourth Circuit, in the case of Jacobs v. N.C. Administrative Office of the Courts,[1] recently agreed with the EEOC that social anxiety disorder may be a disability for ADA purposes. For practical purposes, however, the important takeaway in this case is that reasonable accommodation requests should never be taken lightly and all decisions that adversely affect employees should come with ample documentation. More >

E-Cigarettes and Workplace Smoking Policies: To Ban or Not to Ban, that is the Question

Smoking in the workplace is slowly becoming an antiquated notion. Federal and state laws ban smoking in some places, and an increasing patchwork of local ordinances decreases the availability of indoor and even outdoor smoking in some circumstances. Complicating matters, as it usually does, is the rise of new technology that straddles the line between permissible and impermissible conduct – the e-cigarette. The question employers now have to struggle with is whether these devices, which purport to alleviate the harmful effects of smoke on both the user and those inhaling second-hand, should fall under broad workplace bans on smoking. More >

Must Gluten-free Be Free? What You Should Know About Celiac Disease and the ADA

Restaurants nationwide are beginning to offer gluten-free alternatives to regular menu items. This is welcome news to those long suffering from celiac disease, a chronic and serious immune reaction to eating gluten, a protein that is found in wheat, barley and rye. The National Foundation for Celiac Awareness cites a statistic that one out of every 133 Americans has celiac disease. While that number seems small, that means that a busy restaurant will likely encounter at least one customer with celiac disease every few days at the least, and quite often daily. Many restaurants that do provide gluten-free options, however, charge an added fee for the dish. This raises a few important topics of note for those with celiac disease - whether celiac disease is a “disability” that requires accommodation under the American with Disabilities Act (“ADA”), whether a restaurant must provide a gluten-free dish as an accommodation, and finally, whether it may charge an added fee for the accommodation. More >

Sixth Circuit Vacates Decision On Telecommuting Accommodation

In May, we wrote about the Sixth Circuit’s interesting decision in Equal Opportunity Commission v. Ford Motor Co., wherein the Court expanded the instances in which a telecommuting arrangement would be considered a reasonable accommodation for disabled employees in accordance with the Americans with Disabilities Act (“ADA”).[1] More >

Employer Wellness Plan Under Attack by the EEOC

The U.S. Equal Employment Opportunity Commission (“EEOC”) has filed its first lawsuit directly challenging a wellness program under the Americans with Disability Act (“ADA”). The case, EEOC v. Orion Energy Systems, was filed in the U.S. District Court for the Eastern District of Wisconsin.

The EEOC is alleging that Orion penalized an employee in 2009 after she declined to participate in the company’s wellness program by requiring her to pay her entire health care insurance premium, in addition to a $50-a-month nonparticipation penalty. Shortly thereafter, the employee was fired – a move that the EEOC believes was retaliatory. Further, the agency contends, Orion required medical examinations and made disability-related inquiries that were not job-related or consistent with business necessity.

The ADA limits the circumstances under which an employer may require physical examinations or answers to medical inquiries. Examinations and inquiries are permissible, but only if participation in an employee wellness program plan is voluntary. Orion’s program, according to the EEOC, was not voluntary because it penalized the employee when she declined to participate.

Employers who want to implement an employee wellness plan must ensure that the plan is compliant not only with ADA requirements, but also with the Affordable Care Act (“ACA”). See more on the ACA’s requirements, which are relatively new, here and here. 

The EEOC’s press release announcing the suit states that 94% of employers with over 200 workers offer some sort of wellness plan, as do 63% of smaller employers. That means that there is a lot of potential for liability when it comes to wellness plans. If you have questions about yours or would like to consult with legal counsel before implementing a program, contact McBrayer’s Employment Law attorneys today.

Preston Clark Worley is an associate with McBrayer law. Mr. Worley concentrates his practice in employment law, land development, telecommunications, real estate and affordable housing. He is located in the firm’s Lexington office and can be reached at pworley@mcbrayerfirm.com or at (859) 231-8780, ext. 1201.

Services may be performed by others.

This article does not constitute legal advice.

The Sixth Circuit Broadens Telecommuting as a Reasonable Accommodation For Disabled Employees

In a new decision involving the Ford Motor Company handed down by the U.S. Court of Appeals for the Sixth Circuit, the Court has expanded the instances in which a telecommuting arrangement would be considered a reasonable accommodation for disabled employees in accordance with the Americans with Disabilities Act (“ADA”).[1] In Ford Motor Company, Jane Harris, who worked in a supply purchasing position, was terminated from her position after she asked to perform her job primarily via telecommunication in an attempt to control her unfortunate symptoms of irritable bowel syndrome. There was no dispute that she possessed a disability affecting a major life activity. So the discussion revolved around whether she could do her job via telecommuting and whether Ford’s proposed alternative accommodations were acceptable. Ford denied the request for telecommuting even though it did allow those in positions such as Harris to work from home on a limited basis. According to Ford, Jane’s physical presence at the workplace was critical to the group dynamic of the resale-buyer team and thus her request was unreasonable. The district court sided with Ford, granting the employer summary judgment as to claims of failure-to-accommodate under the ADA and retaliation. The question on appeal was whether Harris created sufficient questions of fact for her case to be allowed to proceed. The Sixth Circuit agreed that Harris did present sufficient questions of fact for her claim to be considered and in so doing appeared to send a message to employers that they need to be more flexible in considering telecommunication as a reasonable accommodation. More >

The ADA & Web Accessibility

On March 6, the U.S. Department of Justice announced that a consent decree with H&R Block had been entered requiring the company to establish accessibility of its websites and mobile apps under the Americans with Disabilities Act. The decree resolves the department’s allegations that individuals with disabilities are denied full and equal enjoyment of the company’s tax-preparation focused goods and services provided online. More >