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Posts Tagged ‘ADA’

Is Your Attendance Policy Too Rigid?

Posted on: September 6th, 2018

By: Christopher Curci

Employers need to be mindful of both the Family Medical Leave Act (“FMLA”) and Americans with Disabilities Act (“ADA”) when considering how to enforce their attendance policies.  When an employee requests time off from work to attend to a medical condition, most employers will consider the request as one for medical leave under the FMLA.  However, what happens if the employee has exhausted his or her FMLA leave or is not eligible for FMLA leave.  Many employers will simply conclude that the employee is not eligible for FMLA leave without considering whether the ADA requires the leave as a reasonable accommodation.  This common mistake often results in a violation of the ADA.

For example, in August 2018 the EEOC filed a lawsuit against Stanley Black & Decker for terminating an employee who took leave for medical treatments related to her cancer.  To qualify for FMLA leave, the employee must have been employed with the company for at least one year and worked at least 1,250 hours during the prior year.  In the Stanley Black & Decker lawsuit, the employee requesting leave had been employed for less than one year.  When she asked Human Resources what her options were to receive her medical treatments, she was correctly told that she was not eligible for FMLA leave.  However, Human Resources did not consider whether the requested leave was a reasonable accommodation under the ADA.

What happened?  The employee exceeded her allowed vacation days to undergo her cancer treatments and Stanley Black & Decker terminated her employment for excessive absenteeism in violation of its attendance policy.  Then what happened?  The EEOC filed a lawsuit against Stanley Black & Decker for violating the ADA.

Per the EEOC, Stanley Black & Decker’s attendance policy “does not provide exceptions for people who need leave as an accommodation to their disability.”  EEOC Regional Attorney Debra M. Lawrence said, “Employers can run afoul of the ADA if they have a rigid attendance policy that penalizes employees taking leave as a reasonable accommodation for their disabilities.”

Inflexible leave policies that discriminate against individuals with disabilities is one of six national priorities identified by the EEOC’s Strategic Enforcement Plan.  The take away: when an employee requests leave due to a medical condition, employers must consider both the FMLA’s leave requirements and the ADA’s reasonable accommodation requirements.

Christopher Curci practices Labor & Employment law in Pennsylvania and New Jersey and is a member of  Freeman Mathis & Gary’s Labor and Employment Law National Practice Section.  He represents employers in litigation and advises clients on all aspects of employment law.  He can be reached at [email protected].

 

Discrimination Suit Over Service Dog Revived By Third Circuit

Posted on: August 23rd, 2018

By: Barry Brownstein

The Third Circuit has revived a lawsuit by the parents of an epileptic girl who claim a Pennsylvania school discriminated against her by barring her service dog.

In 2014, Traci and Joseph Berardelli sued the Allied Services Institute of Rehabilitation Medicine, which operates a school with a specialized program for dyslexic students, after it barred their daughter from bringing her service dog to school to help alert staff to her epileptic seizures. The school claimed the dog would be a distraction, and the Berardelli’s daughter missed many school days when her seizures were bad. When the school finally permitted the service dog to accompany her, the reprieve did not last long, as school officials required that it wear a “special therapeutic shirt designed to decrease allergens” that caused the dog to overheat. The parents’ lawsuit alleged that the school violated the ADA, the Rehabilitation Act, and a Pennsylvania discrimination law.

The United States District Court for the Middle District of Pennsylvania dismissed the ADA and state discrimination claims, ruling that they improperly sought damages.

On appeal, Traci and Joseph Berardelli argued that “reasonable modifications” required under the ADA are substantively the same as “reasonable accommodations” provided for in the Rehabilitation Act, and thus, service animal requirements in the ADA apply to both laws.

The Third Circuit ruled that the district court erred in its instructions to the jury about the Rehabilitation Act claim and improperly disallowed testimony about ADA service animal regulations because that was not the law being considered.  In its enforcement of the ADA, the Department of Justice has ruled that service animals are reasonably permitted to be used by disabled persons in public places as long as they are housebroken, not out of control, and pose no risk to the public.

The Third Circuit ruled that the Rehabilitation Act of 1973 and its progeny the Americans With Disabilities Act of 1990 must be interpreted the same way with respect to reasonable accommodations that must be provided to those with disabilities, including the use of service animals. Thus, under the Rehabilitation Act just as under the ADA, a covered actor ordinarily must accommodate the use of service animals by individuals with disabilities. The Third Circuit also overturned dismissal of the claim made under Pennsylvania discrimination law, ruling that the district court erred because that law does permit damages as a remedy.

If you have any questions or would like more information, please contact Barry Brownstein at [email protected].

To FMLA or not FMLA, that is the question…

Posted on: November 10th, 2017

By: Christopher M. Curci

FMLA and ADA leave questions are some of the most frequent that we receive from our clients.  Deciding whether an employee’s absence should be designated as FMLA leave, or granted as a reasonable accommodation under the ADA, is a legal land mine.

Fortunately, at least one federal judge in Pennsylvania recognizes the employer’s dilemma.  In Bertig v. Julia Ribaudo Healthcare Group, LLC, the employee suffered from bladder cancer and asthma, which are disabilities under the law.  She requested and was granted one month of FMLA leave in May of 2012.  She returned to work in June of 2012 as planned.

Beginning in April of 2013 and continuing through April of 2014, the employee called out sick thirteen times for various reasons, such as foot pain and a sore throat. She was terminated for violating the company’s attendance policy.  The employee filed suit alleging that she informed management that her absences were related to her disabilities, therefore her absences should have been designated as FMLA leave.  She also brought a claim for failure to accommodate her disabilities under the ADA.

The Court ruled in favor of the employer. The employee admitted during her deposition that ten of her thirteen absences were unrelated to her disabilities.  Because her absences were not disability-related, her termination did not violate the FMLA or ADA.  But, the most important takeaway in this case is the Court’s implication that the employer was not obligated to make further inquiry as to whether those absences were related to the employee’s disability before it made the decision to terminate her employment.  That burden fell on the employee given the totality of facts here.

While this decision is very fact specific, it is nonetheless a win for employers who struggle with FMLA/ADA leave requests. Just because an employee took FMLA leave in the past for a disability does not necessarily mean that the employer has a burden to inquire whether subsequent absences are related to that disability – especially when the absences occurred ten months later and the employee gives non-disability related reasons for the absences.

All employers should have written FMLA and ADA policies advising employees of their FMLA and ADA rights, and should document reasons for employee absences. Christopher M. Curci represents employers in litigation and advises his clients on all aspects of employment law.  If you need help with this or any other employment issues, he can be reached at [email protected].

Employers Beware: Use Of Biometric Technology Can Expose You To Troublesome Lawsuits (Especially In Illinois)

Posted on: November 6th, 2017

By: William E. Collins, Jr.

The recent spike in claims against employers involving employee biometric data is a reminder that employers across the country should use caution before implementing technology utilizing employee biometric information.

How and Why Employers Use Biometric Technology
Employers are increasingly turning to technology utilizing biometric verification to ensure accurate time records and increase security. Biometric verification uses one or more unique identifiers from a person to verify their identity. These biometric identifiers include the use of fingerprints, finger geometry, and hand, face, or body scans. Employers use this technology to ensure accurate time records and increase security. Biometric verification combats “buddy punching”—where co-workers clock in or out for a fellow employee—and inaccurate time records because it requires the employee to be present in the workplace when the entry is made. By requiring the employee be physically present, the employer increases accuracy, security, and can restrict employee access to specified areas in the workplace. While this technology certainly has its advantages, it is not without risks to employers.

Flurry of Cases in Illinois
Since September of 2017, there have been more than 25 new lawsuits in Illinois State Court that allege violations of the Illinois Biometric Information Privacy (“BIPA”), which requires employers provide employees notice, obtain their consent, and clearly outline retention policies if using biometric identifiers.

Hyatt, Roundy’s, Zayo Group, Speedway, and Kimpton’s Hotels are a few targets of the most recent BIPA lawsuits. These companies allegedly violated BIPA where they required employees provide a fingerprint or finger geometry to clock in and clock out or to access company facilities without obtaining employee approval or outlining the scope and duration of use of the employee’s information.

The law imposes steep penalties for even unsuspecting employers where the liquidated damage provision of the statute is $1,000 per occurrence if the employer is merely negligent. And when the acts are willful or reckless, the damage is $5,000 per act. As you can imagine, this represents significant liability for employers and that potential liability quickly escalates when faced with the prospect of class action litigation. It was recently estimated that one company embroiled in one of the Illinois biometric fights faces the prospect of damages reaching $10 million.

Statutes Across the Country
While Illinois is the only state with a private right of action, several states place restrictions on an employer’s use of certain biometric information. For example, similar to Illinois, both Texas and Washington require that employers provide notice and obtain consent from employees prior to capturing biometric identifiers. In other states, certain actions involving biometric information are prohibited. In New York, most employers are prohibited from requiring fingerprinting as a condition of securing or continuing employment. While in California, employers are prohibited from sharing biometric data with third parties.

Even if your state does not regulate biometric information, you should be prepared because state legislatures are very active in this area. In 2017 alone, new legislation regulating biometrics was proposed in Alaska, New Hampshire, Connecticut, and Washington. Much of this legislation mirrored the statutes in effect in Illinois and Texas.

Federal Employment Laws are Implicated
Employers also must be cautious when implementing technology that utilizes biometric information because federal employment statutes may be implicated. Consider EEOC v. Consol Energy, Inc., where the EEOC brought a religious discrimination claim against an employer who implemented hand-scanning technology. There, the EEOC prevailed on behalf an employee who was declined accommodation for his religious belief that the hand-scanner used to clock in and clock out would provide information that could be used by the “Antichrist” to identify those with the “Mark of the Beast.”

In other instances, because eye, hand, or fingerprint scans potentially give medical information to the employer that alone, or through further analysis, could provide an employer information that they might otherwise not know, the use of biometric identifiers could bring ADA or GINA claims. For example, eye scans could reveal undisclosed eye disorders and diseases, finger print scans might reveal burns or tissue disorders, and hand-scans could reveal arthritis, scar tissue, or temperature distribution issues. As a result, employers implementing these programs must be careful to narrowly tailor their programs so that the information does not impact participation in benefit programs or that it does not otherwise lead to discrimination based on a disability.

The Bottom Line

Employers should be thoughtful and diligent when deciding to implement technology utilizing biometric identifiers as liability lurks for employers under both state and federal laws. Ultimately, employers should:

1. Carefully evaluate the decision to implement biometric verification technology and consult with legal counsel to better understand their obligations under state and federal law.
2. Develop a written policy and obtain written consent from employees when deciding to implement this technology.
3. Narrowly tailor what information is captured, how the information is stored, and who the information is shared with.

If you have any questions or would like more information, please contact William Collins at [email protected].

Extended Medical Leave Held Not Reasonable Accommodation Under ADA

Posted on: October 2nd, 2017

By: Amy C. Bender

Accommodations for disabled workers, and particularly requests for medical leave, continue to present challenges for employers. Who is considered disabled? Do I have to provide employees additional time off work after FMLA, other statutory leave entitlements, and PTO have been exhausted? If so, how much leave do I need to provide? How will I cover the employees’ duties during the absence? If I give additional time off to one employee, will I have to do it for everyone? The questions seem endless.

Fortunately for employers, a recent federal court decision has held that a multi-month medical leave of absence is not a reasonable accommodation under the Americans with Disabilities Act. The court reasoned that the ADA is not a medical leave statute, but rather is intended to prohibit discrimination against qualified individuals with disabilities and to require reasonable adjustments to jobs to enable those employees to perform their essential job functions. By contrast, an extended medical leave does not help a disabled worker perform the job, but rather excuses the inability to work, and thus is not a “reasonable” accommodation. The court noted that a short-term leave of a couple days or even a couple weeks may be a reasonable accommodation, depending on the circumstances. There is no bright line between “short-term” and “long-term” leave, and of course, the facts of each situation will vary. However, the case signals good news for employers by placing some limitation on the ever-increasing accommodation obligation. The decision may be read here.

FMG’s Labor and Employment Law team can assist your organization in responding to accommodation requests, defending ADA claims for failure to provide an accommodation, and implementing effective discrimination and accommodation policies and strategy.

If you have any questions or would like more information, please contact Amy C. Bender at [email protected].