Disability Discrimination (ADA)

Human resource keyboardMake plans now to attend the biggest employment law conference in Southwest Florida, HR Law & Solutions, now in its 25th year! Henderson Franklin’s Employment Law and Workers’ Compensation attorneys will return to Sanibel Harbour Marriott Resort & Spa in Fort Myers on Friday, March 10, 2017, for a fun-filled day of education. Click here to view the seminar brochure.

Topics and Speakers

8:30 – 9:45 a.m. Legislative and Case Law Update
Speakers:  Robert C. Shearman, Esquire and Vicki L. Sproat, Esquire
Bob and Vicki will provide an interactive update on notable court decisions, including cases addressing contentious employment policies and other noteworthy employee claims. Attendees will learn practical advice and tips for businesses to reach their goal of a compliant workplace under current laws and regulations.

10:00 – 11:00 a.m. The ADA – 25 Years Later
Speaker:  John F. Potanovic, Esquire
On March 5, 1992, Henderson Franklin sponsored its first “Employer’s Update,” where John spoke to a small gathering at the Royal Palm Yacht Club about a brand new law – the Americans with Disabilities Act (ADA). Much has evolved since then. 25 years later, the Henderson Franklin seminar is called “HR Law and Solutions” and has 300+ attendees each year; the Royal Palm Yacht Club is a Pinchers Crab Shack; and John no longer has need for a blow-dryer. In this session, John will discuss the more difficult issues confronting employers attempting to steer clear of ADA problems, and he will share best practices to assist in dealing with these challenging issues.

11:15 a.m. – 12:15 p.m. How to Avoid Costly Litigation in Workers’ Compensation
Speakers:  David Roos, Esquire, Michael McCabe, Esquire and Tania Ogden, Esquire
Henderson Franklin’s Workers’ Compensation Defense Attorneys will share strategic tips employers can implement to help avoid costly litigation. They will discuss best practices with regard to policies that should be in place before the injury, how to manage and set employees’ expectations when an injury occurs, employer do’s and don’ts, as well as return to work policies. David, Michael and Tania will also share the importance of communication between the employer, insurance company and defense attorney(s) to try and achieve the best outcome possible for the employer.

1:45  – 2:45 p.m. New Year, New Administration: What Does 2017 Hold for Employers?
Speakers:  Panel discussion moderated by Suzanne M. Boy, Esquire, with panelists Robert E. Weisberg, Esquire, Regional Attorney for U.S. Equal Employment Opportunity Commission (Miami) and Benjamin Yormak, Esquire
There is little doubt in employer and HR circles that the ever-evolving nature of employment law can make management and prevention of problems difficult for even the most experienced leaders. After a 2016 that saw the Department of Labor roll out its huge new overtime changes mid-year, only to have implementation halted just weeks prior to the effective date, this has probably never been more true for 2017, when there is significant uncertainty surrounding what the new Administration will mean for employment laws. In this session attendees will have a unique look into what experts from all sides of the employment law world believe is on deck for 2017, including: potential changes to minimum wage and overtime laws, paid sick/maternity leave; the status of sexual orientation/gender identity protections; and, the ever-changing NLRB rulings. The panelists will also share their best tips to help employers stay in compliance and reduce exposure to the many employment claims prevalent today.

3:00 – 4:30 p.m. The Co-Workers’ Challenge
Guest Speaker Scotty Gunther
The Co-Workers’ Challenge is a quick paced, unique program that combines humor, motivational speaking, and leadership training. This session promotes teamwork, communication, and stress relief for HR professionals and other leaders through laughter. The Co-Workers’ Challenge provides participants various tools, strategies and tactics that they can use to help facilitate better communication, forge stronger working relationships among co-workers, and diffuse difficult or stressful situations more effectively.

4:30 – 5:30 p.m. 25th Anniversary Celebration
Please join us for a cocktail hour to celebrate our 25th Anniversary!

Continuing Education

This conference has been approved by SHRM for 5.75 PDCs and from HRCI for 6 Recertification Credit Hours (General).

Conference Partners

We are grateful for the support and sponsorship of Lykes Insurance (lunch sponsor) and of Gravity Benefits (our 25th Anniversary Celebration Sponsor), as well as our in-kind partners Charlotte County SHRM, SHRM SWFL, and HR Collier.

Registration

Registration is $50 per person and includes a continental breakfast, plated lunch, seminar materials and valet parking. To online register now, click here.

Join the discussion on social media using the #swflhrlaw hashtag.

We hope to see you soon! For group reservations or questions, please contact me at gail.lamarche@henlaw.com or by phone at 239-344-1186.

ergo chair via Kare Products FlickrConsider this scenario:

Carmen Parada worked for Banco Industrial de Venezuela in New York as a credit analyst, a largely sedentary job that involved organizing credit letter applications, ensuring that certain documents complied with various standards, and issuing credit letters. In 2007, she fell on the sidewalk and suffered a spinal injury in her lower back. As a result, the employee was directed by her doctor to avoid “prolonged sitting” and to stand after 10 or 15 minutes of sitting. She borrowed a colleague’s ergonomic office chair temporarily, and was able to sit using that chair without the need for standing breaks. The employee asked her employer (a bank) multiple times for a permanent ergonomic chair as a “reasonable accommodation” under the Americans with Disabilities Act of 1990 (ADA). However, she never received the chair and was ultimately terminated.

Which of the following statements is correct?

A. The bank may deny the employee’s request for the ergonomic chair as a reasonable accommodation under ADA, since she is not precluded from sitting at all times.

B. The bank must grant the employee’s request for breaks to allow her to stand after 10-15 minutes of sitting as a reasonable accommodation under ADA but is not required to provide the chair at the employer’s expense.

C. The bank must grant the employee’s request to either stand periodically or use an ergonomic chair, but not both, and the employee has to pay for her own chair.

D. The bank must grant the employee’s request and provide the chair at the employer’s expense, if the employee can show that she is a qualified individual with a disability and the chair will allow her to perform the essential functions of her job.

Continue Reading Employment Law IQ: Reasonable Accommodation, Termination and the ADA

chemical allergyConsider this scenario. Cathy works for Clean As a Whistle, Inc. as a janitor. Cathy recently developed a sensitivity to all cleaning chemicals. Initially, Cathy brought in a doctor’s note limiting her to two hours of chemical exposure per eight hour work day. Clean As a Whistle agreed to limit her exposure to two hours. When that limitation failed to abate Cathy’s symptoms, her doctor modified the restriction to “no exposure to cleaning solutions.”

Clean As a Whistle tried to find a solution for Cathy, but ultimately determined there was no way to accommodate her because the chemicals were airborne so merely working in the building resulted in exposure, and providing a respirator was too expensive. After she was terminated, Cathy sued.

Did Clean As a Whistle violate the ADA?

A.  Yes, because Clean As a Whistle did not engage in the interactive process.

B.  No, because Cathy did not have a disability.

C.  Yes, because Clean As a Whistle should have provided a respirator.

D.  No, because Cathy was not “qualified” to do her job based on the doctor’s restriction.

Continue Reading Employment Law IQ: Disability, Termination, and the ADA

man construction worker tired sweating silhouetteContinuing in our series to test your employment law IQ, this week we will focus on FMLA requests often received in HR offices.

Scenario: Henry Fixit worked as a maintenance man for Sleep Inn for almost 20 years. Sleep Inn has 105 employees. As part of Fixit’s regular duties, he was constantly climbing ladders, lifting heavy equipment, and performing other physical labor. Fixit recently suffered a non work-related injury that required surgery. He requested FMLA leave, which Sleep Inn approved. After two months, Fixit gave Sleep Inn’s HR Director a doctor’s note, stating that Fixit was able to return to work, but with certain lifting and bending instructions. When Sleep Inn refused to create a light duty position for Fixit, Fixit sued for FMLA interference.

Which of the following statements is correct?

A.  Sleep Inn interfered with Fixit’s FMLA entitlement when it refused to offer him a light duty position.

B.  Sleep Inn is not liable for FMLA interference, but it would be liable under workers’ compensation laws for its failure to create a light duty position.

C.  Sleep Inn is not required to create a light duty position for Fixit.

D.  None of the above.

Continue Reading Employment Law IQ: FMLA Interference – What Would You Do?

Happy 2014! Can you believe it is another new year? Time flies!employee termination

We will be finishing up our Employment Law IQ series in the next few weeks. Today’s question involves the sticky overlap of the ADA and FMLA, two laws that can be difficult even for seasoned HR professionals to navigate.

Scenario. Lucy Lawless works as an associate attorney at Dewey, Sue & Howe, the biggest law firm in Southwest Florida. Lawless, a lifetime smoker, was recently diagnosed with lung cancer. Dewey, Sue & Howe, which calculates FMLA leave on a calendar basis, grants Lawless 12 weeks of leave under the FMLA. Lawless is unable to return to work after 12 weeks, so Dewey, Sue & Howe grants Lawless an additional six months leave. At the end of six months, Dewey, Sue & Howe granted Lawless an additional period of leave, up to the anniversary date of her first request for leave. On the anniversary date, Lawless requests additional leave, but does not provide Dewey, Sue & Howe with any doctor’s note or certification to verify her request. Dewey, Sue & Howe terminates her.

Which of the following statements is correct?

A.  Dewey, Sue & Howe violated the ADA by failing to grant Lawless additional leave.

B.  Dewey, Sue & Howe violated the FMLA by failing to grant Lawless additional leave.

C.  Dewey, Sue & Howe violated both the ADA and FMLA by failing to grant Lawless additional leave.

D.  None of the above.

Continue Reading Employment Law IQ: FMLA Extension or Termination – What Would You Do?

surprised young woman holding white empty paper isolated on whiteContinuing our Employment Law IQ series, today we focus on Anxious Annie. Anxious Annie works as a receptionist for P U Waste Disposal. She is a decent employee, but seems to have trouble coming to work on time, and often calls in “sick” on Mondays and Fridays. When Annie is written up for absenteeism, Annie tells her supervisor she needs a leave of absence to deal with panic attacks. Annie’s supervisor reports the request to P U’s HR Director, but laughs it off and says the request “smells funny.” P U has more than 15 employees.

Which of the following statements is correct?

A.  Because Annie’s disability is not obvious, P U is entitled to receive “reasonable documentation” about the disability and its functional limitations.

B.  Because Annie’s disability is not obvious, P U can ask to see Annie’s medical records.

C.  Because Annie’s disability is not obvious, P U can ask about the nature of the disability and its functional limitations.

D.  Both A and C are correct.

Continue Reading Employment Law IQ: Absenteeism and Questionable Leave Requests

The final regulations implementing the Americans with Disabilities Act Amendments Act ("ADAAA") are effective today, May 24, 2011.  As you probably know, the new regulations highlight the ADAAA’s broader definition of disability.  This means more individuals with be considered disabled, thus qualifying for protection under the ADA.  The focus now will likely be on the accommodation process, instead of whether someone qualifies as disabled under the regulations.

Vicki Sproat of our office prepared a newsletter highlighting important parts of the new regulations, which we e-blasted to our subscribers last month.  If you missed it, you can download a copy here.

The U.S. Equal Employment Opportunity Commission ("EEOC") announced the filing of three new disability discrimination cases in a recent press release.  These cases, which were filed under the ADA Amendments Act of 2008 ("ADAAA"), allege discrimination against qualified individuals with diabetes, cancer, and severe arthritis.

 You should recall that the ADA was amended by the ADAAA, effective January 1, 2009.  The ADAAA clarified and expanded the definition of "disability," making it easier for people with disabilities to qualify for protection under the ADA.  I wrote a brief newsletter article in October 2008 detailing some of the changes, which you can download here

The new cases are among the first filed by the EEOC under the ADAAA, but employers can rest assured they will not be the last.  According to EEOC Chair Jacqueline Berrien, the EEOC wants to send a "clear message that the Commission will vigorously enforce the ADA."  The EEOC’s general counsel further cautions, "Individuals with disabilities — including serious medical conditions such as cancer, diabetes, and severe arthritis — must be evaluated according to their qualifications, and not their disabilities."

Employers and HR professionals should take special care to ensure they fully understand the scope and breadth of the ADAAA.  If you have any doubts or questions about the definition of diability, reasonable accommodations, or anything related to the ADAAA, the best time to act is NOW — do not wait until the EEOC comes knocking.

The Department of Labor recently debuted its Disability Nondiscrimination Law Advisor, an online tool intended to help employers determine which federal disability nondiscrimination laws apply to their organization, and their responsibilities under each law.  Employers answer a series of questions about their business, then the Advisor generates a list of applicable disability nondiscrimination laws.  The Advisor also includes a "Guide to Employing People with Disabilities," which outlines resources available to help employers comply with disability nondiscrimination laws.

While it is important to note that the Advisor does not address all federal disability nondiscrimination laws, it does address many of the major federal laws, including:

  • Title I of the Americans with Disabilities Act of 1990 (ADA)
  • Title II, Subtitle A, of the Americans with Disabilities Act of 1990 (ADA)
  • Section 188 of the Workforce Investment Act of 1998
  • Section 504 of the Rehabilitation Act of 1973, as amended (only as it pertains to federal financial assistance)
  • Section 503 of the Rehabilitation Act of 1973, as amended
  • The Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended

We encourage our clients to use the Advisor as a helpful guide and good starting point for understanding these laws.  The Advisor is not, however, a substitute for legal advice on all federal, state, and/or local disability nondiscrimination laws.  Employers should consult counsel with any specific questions.