6th Circuit offers a good reminder that the ADA is often a bilateral process

Like many people, I would love to have the time to exercise more. Life (and by life, I mean the 10 or more hours per day I'm often at work) gets in the way.

What if, however, you had the available time to exercise during the work day?

Or, for example, consider, McDonald v. UAW-GM Center for Human Resources (6th Cir. 6/21/18), which asks whether an employer is required to grant an extended lunch break as a reasonable accommodation to permit an employee to engage in disability-related exercise.

Per her employer's collective bargaining agreement, Shannon McDonald's employer permitted employees annually to elect whether to take a 60-minute lunch break, or a 30-minute lunch break with two additional non-contiguous 15-minute breaks. In 2014, McDonald opted for latter, yet kept extending her lunch by 30 minutes to exercise. She was born with Crouzon syndrome, a genetic disorder, which caused multiple surgeries over the years. She claimed that exercise helped alleviate pain from those previous surgeries.

The employer, however, caught on to McDonald's extended lunches, refused to permit her to change her annual election, and warned her that a continuing failure to follow its policy on breaks could result in discipline. It did, however, offer her an alternative. In lieu of granting an exception to her annual lunch-break election, the employer offered McDonald the option to use its exercise facility prior to the start of her shift. She refused, however, because she "would rather have been able to switch [her] lunch from a half hour to an hour," and that she did not want to "wake up early if [she] didn't have to."

Ultimately, the employer suspended McDonald. She had submitted a doctor's note asking for 60 minutes of exercise time as an accommodation. While the employer was considering the request, McDonald continued to violate its lunch break rule. That violation resulted in her suspension. While on suspension, she resigned, and sued.

The 6th Circuit affirmed the district court's dismissal of McDonald's ADA claim.

CHR never denied McDonald's request. True, her immediate supervisor told her it was not feasible and suggested alternatives. But the actual decision-makers had not yet rendered their verdict.… But McDonald didn't wait for an answer: she immediately went on personal leave after her suspension and quit just a few weeks after that. "[A]n employee cannot base a disability discrimination claim upon an employer's delay in providing a requested accommodation where the delay is due to internal processing or to events outside the employer's control."

Like many workplace issues, the ADA is a two-way street. An employee cannot claim the Act's protection by shutting down one of those lane and demanding a one-sided process.

Dealing with IEDs in your workplace—employees with intermittent explosive disorder

Every workplace has had THAT employee. The hothead. Someone who loses their cool at the drop of hat. Yells, screams, and is prone to fits of rage.

It should go without saying that no one should be required to be subjected to this degree of misconduct. For this reason, you may (should?) decide to separate Hothead's employment.

What happens, however, if Hothead delivers a doctor's note advising you that he or she is being treated for "intermittent explosive disorder?"

6th Circuit says full-time work is not an essential function of every full-time job

Is an employer required to permit a disabled full-time employee to work a reduced work schedule as a reasonable accommodation?

In Hostettler v. The College of Wooster [pdf], the 6th Circuit concluded that it depends on the specific position, and that an employer risks violating the ADA by declaring full-time work as an essential function of a position without analyzing the actual need for full-time work for that position.

Firing of deaf employee costs Costco a Costco-sized verdict

I've thought a lot of things walking through Costco.

Why aren't the free samples out yet?

What the heck am I going to do with 10 pounds of cheese, but damn that's a good price?

How did I just manage to spend $250?

The one thing I've never thought?

It's so loud in here; I wish the employees would speak more quietly.

Court upholds Postal Service's termination of employee over fear of "going postal"

What do you do when you learn that an employee may pose a risk of violence to your workplace?

Does your opinion change if you learn this information on the eve of the employee returning from a leave of absence for depression or other mental illness?

Mitchell v. U.S. Postal Service (6th Cir. 6/21/18) answers these questions.

Is technology the answer to your employees’ mental health problems?

The world was rocked last week, first by the suicide of Kate Spade and then by that of Anthony Bourdain. American suicide rates have skyrocketed, up 30 percent since 1999, emblematic of the larger mental-health epidemic we are facing.

Many point to the isolationism and perfection seeking created by our personal technology devices (and the social media they feed to us) as one the main causes of this epidemic.

But what if the analytical power of these devices could actually alert us to mood changes and create an earlier awareness of an impending personal mental-health crisis?

The ADA’s interactive process is always a two-way street

Photo by MelanieSchwolert via Pixabay

Who has the burden of proof in an ADA reasonable accommodation case? The employee, to prove a lack of an accommodation, or the employer, to prove the unavailability of an accommodation? 

In Snapp v. BNSF Railway, the 9th Circuit Court of Appeals re-affirmed that the burden squarely rests on the shoulders of the employee.

Sympathetic does not always equal protected under the ADA

Photo by Pexels on Pixabay

Today’s opinion is a lesson straight out of the school of hard knocks. No matter how sympathetic the plaintiff or how harrowing his plights, the law is the law and sometimes it’s just not on his side.

When an opinion starts with this quote, you know that the plaintiff is not going to have a good day.

What happened in Sepúlveda-Vargas v. Caribbean Restaurants, LLC (1st Cir. 4/30/18) to garner this tough life lesson from the court?

THIS is how you reasonably accommodate a disabled employee

Photo by David Pisnoy on Unsplash

I’ve spent a lot of time over the past 16 months discussing bad employers—those that so mishandled employees that they earned a spot on my list of America’s Worst Employers.

Today, I thought I’d take a look at the brighter side—an employer that handled a tricky employee issue correctly.

Don’t sleep on verifying reasonable accommodations

Photo by Nathan Dumlao on Unsplash

George Hirmiz, a front-desk clerk at a Travelodge Hotel, was caught on video sleeping in the hotel lobby while a fight broke out among its guests. After the hotel fired him, he claimed disability discrimination. His disability? An alleged illness that he had contracted from long-term exposure to high levels of electromagnetic voltage at the hotel.

The 7th Circuit had little difficultly affirming the dismissal of his lawsuit:

Ohio Chamber of Commerce takes the lead on fighting addiction at work with launch of its Employer Opioid Toolkit

Nearly 50,000 Americans lost their lives to opioid-related overdoses in 2016. Compare that figure to the HIV/AIDS epidemic, which recorded 43,000 deaths during its peak in 1995, or the entire Vietnam war, which saw 58,000 U.S. soldiers die.

Needless to say, our opioid problem is a national epidemic. And, Ohio sits right on the front lines, with the 3rd highest rate of annual opioid-related deaths, trailing only West Virginia and New Hampshire.

My state, however, is not taking this problem sitting down. Last week, the Ohio Chamber of Commerce launched its Employer Opioid Toolkit.

The legal implications of employee tracking devices

Photo by N. on Unsplash

I once knew of company (not a client) at which its CEO would sit in his office all day and watch a bank of monitors connected to cameras all over the workplace so that he could track the productivity of his employees. He even had one outside the bathrooms to record how frequently, and for how long, his employees were taking potty breaks. Needless to say, morale among his employees was not great.

Monitoring of employees has gone even more high tech. The Chicago Tribune reports that Amazon has developed wristbands to track worker hand movements as they fill and ship orders in its warehouses and distribution centers.

When does telecommuting qualify as a reasonable accommodation?

I’m writing today’s post from the comfort of the kitchen island in my house. My son has the flu, and I’m working from home.

It’s been three years since the 6th Circuit decided EEOC v. Ford Motor Co., a groundbreaking decision in which the court issued its en banc decision declaring that telecommuting is not an appropriate reasonable accommodation, unless the employee can show that that regular attendance in the workplace, and face-to-face interaction with co-workers, are not essential elements of the employee’s job. 

Yesterday, the same court decided Mosby-Meachem v. Memphis Light, Gas & Water Division [pdf], which defined the parameters of when an employee’s job does qualify for remote work as a reasonable accommodation.

“Can I bring my peacock to work? It’s for emotional support”

United Airlines has blocked a customer from bringing her “emotional support peacock” on a recent flight.

Truth be told, whether it was a large peacock, or a small parakeet, or a dog, or any other animal labeled “emotional support,” the airline acted well within its rights, whether dealing with a customer or an employee.

The ADA makes no reasonable accommodation allowance for “emotional support animals” of any species and of any size. Period.

A real stinker of an ADA lawsuit

Amber Bridges, the former Lead Staff in the City of Indianapolis Magistrate Court, claims that her efforts to ease employees’ complaints about a co-worker's body odor got her fired.

When employees and staff members began to complain about the co-worker’s “chronic body odor,” Bridges installed air fresheners throughout the office.

Months later, however, the malodorous employee complained to her boss that the air fresheners created a hostile work environment. As a result, the City fired Bridges.

Employees that allegedly take an employer’s stuff without authorization don’t win discrimination cases, but might win defamation cases

Jason Shann worked as the Enterprise Desktop Management Team Leader in the IT department of Atlantic Health System. He also suffered from tinnitus, a crackling and buzzing noises in his left ear caused by an Eustachian tube dysfunction. His tinnitus would flare up unpredictably, and, as it worsened, it caused him to suffer anxiety and depression.

As a result, he applied for, and was granted, a 21-day FMLA leave, and intermittent leave thereafter upon his return to work. Despite the intermittent FMLA leave, his tinnitus continued to worsen. Ultimately, he decided to take short-term disability leave, which he intended to role into long-term disability and retirement. 

Prior to leaving Atlantic Health, the company discovered that he had “removed” a plethora of computer assets from his workplace. According to the police report, he took four laptops, one iPad, three hard drives, one portable DVD-R/RW and RAM Drive, one mouse, and an AC adapter for one of the laptops. The company also discovered that he had used unauthorized third-party software to overwrite more than 27,000 files on the one hard drive he left at his desk.

Work stress and the ADA

I’ve been thinking a lot lately about stress, and the anxiety it can, and often does, cause.

Stress induced anxiety can cripple someone. According to the Anxiety and Depressions Association of America:

• 72 percent of people who have daily stress and anxiety say it interferes with their lives at least moderately.
• 40 percent experience persistent stress or excessive anxiety in their daily lives.
• 30 percent with daily stress have taken prescription medication to manage stress, nervousness, emotional problems, or lack of sleep.
• 28 percent have had an anxiety or panic attack.

What happens, however, when the thing inducing the stress and anxiety is the workplace itself? What are an employer’s obligations under the ADA to accommodate this mental health disorder?

9.8 million reasons to consider transferring a disabled employee to a vacant position

Photo by Taber Andrew Bain
Licensed via Creative Commons 

Earlier this month, American Airlines agreed to pay $9.8 million to settle a disability discrimination lawsuit brought by the EEOC.

The agency claimed that the employer’s return-to-work policy—which allegedly refused to consider transfers to open positions for disabled employees, but instead required the employees to apply for and compete for vacant position upon their return to work—violated the ADA.

Just try to curb your enthusiasm about this post on the ADA and attendance

On last night’s season-nine premier of HBO’s “Curb Your Enthusiasm,” Larry David was faced with this age old problem.

How does an employer handle an employee who skips work because she’s constipated?

Larry handled it by foisting his problem employee (his personal assistant) onto someone else.

What should you do?

7th Circuit rejects extended medical leaves of absence as ADA accommodation

Photo: speedpropertybuyers.co.uk/

“You’re FIRED!”

No, this post is not about a recent Trump rally; it’s about the end game to Severson v. Heartland Woodcraft, Inc., in which an employer terminated an employee unable to return to work after the expiration of his 12-week FMLA leave.