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Posts Tagged ‘ADA’

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].

Supreme Court Considers Whether the ADA Requires Officers to Provide Accommodations to Violent and Mentally Ill Suspects

Posted on: March 30th, 2015

By: Kevin Stone and Brian Dempsey

Earlier this week, the Supreme Court heard oral argument in Sheehan v. City and County of San Francisco and grappled with an important issue facing every law enforcement officer across the nation: Whether Title II of the Americans with Disabilities Act (ADA) requires law enforcement officers to provide accommodations to an armed, violent, and mentally ill suspect in the course of bringing the suspect into custody.

The case arose out of an incident at a group home for the mentally ill.  Teresa Sheehan, a resident of the home, threatened to kill a social worker, so the social worker called San Francisco police officers to detain Sheehan for a psychiatric evaluation.  When the two female police officers arrived, they entered Sheehan’s room.  Sheehan then attacked the officers with a knife, forcing them out of the room and slamming the door.  The officers called for back-up.  But before back-up arrived, the officers re-opened the door because they feared that Sheehan might be planning an ambush.  Sheehan again attacked them with the knife. In response, the officers pepper-sprayed Sheehan.  When this did not stop Sheehan’s advance, the officers shot Sheehan several times.  She survived and sued, contending that the officers’ entry and use of force were unreasonable under the Fourth Amendment and that they failed to accommodate her mental illness.

Currently, most federal circuit courts agree that the ADA generally applies in the arrest context.  They are split, however, on whether and how the ADA applies when exigent circumstances exist.  The Fifth and Sixth Circuits do not require police officers to provide accommodations to disabled suspects when exigent circumstances or public safety concerns are present. By contrast, the Fourth, Ninth, and Eleventh Circuits consider exigency as one aspect of the inquiry into whether proposed accommodations are reasonable.

During oral argument, Justice Scalia made clear his thoughts on the issue: “It is never reasonable to accommodate somebody who is armed and violent, period.”  While the other Justices were not so explicit, most expressed concerns with the practicality of accommodating armed and violent mentally ill suspects before they are safely in custody.  On the other end of the spectrum, Justice Sotomayor’s comments suggested that police officers must try to mitigate these situations before they “jump to violence.”  She observed that approximately 350 mentally ill people are shot by police officers every year, while also recognizing that 100 officers die at the hands of mentally ill suspects.  While Justice Sotomayor proposed that the ADA was intended to ensure that the police mitigate these tense situations without force, she did not suggest how officers are supposed to do so.

If an accommodation is required, determining what constitutes a “reasonable” accommodation presents yet another problem.  For example, some of the justices seemed inclined to accept that the officers’ initial use of pepper spray, rather than lethal force, qualified as a suitable accommodation.  Another pertinent discussion addressed how the ADA requires an officer to respond when he or she encounters someone who — unbeknownst to the officer — has a mental illness.  For example, a suspect might exhibit subjectively strange behaviors which could be attributable to many factors which are unrelated to mental illness.  For good reason, the justices questioned whether officers can practically be expected to diagnose each suspect and then decide the accommodation question, all in the heat of the moment.

A decision is expected by June.  While litigation may take years, officers must respond in only minutes or seconds.  Regardless of the outcome, this case underscores that concerns regarding public safety, officer safety, and the rights of disabled individuals often intersect in ways that yield no easy answers to either law enforcement officers or the courts which ultimately review their actions.

Disability or Criminal Behavior? ADA Claims Involving Law Enforcement

Posted on: February 7th, 2013

By: Brian Dempsey and Ali Sabzevari

Title II of the Americans With Disabilities Act (“ADA”) prohibits a “public entity” from discriminating against a “qualified individual with a disability” based upon that individual’s disability. An individual is deemed to have a disability in the context of the ADA if the individual: (1) has a physical or mental impairment that substantially limits one or more major life activities; (2) has a record of such impairment; or (3) is regarded as having such an impairment.

While individual officers will not be held liable under the ADA, counties and municipalities may be held liable for the discriminatory acts of its law enforcement officers if a plaintiff can show that: (1) he is a qualified individual with a disability; (2) he was either excluded from participation in or denied the benefits of a public entity’s services, programs, or activities, or was otherwise discriminated against by the public entity; and (3) the exclusion, denial of benefit, or discrimination was by reason of the plaintiff’s disability.

Although application of the ADA to law enforcement activities varies widely from circuit to circuit, claims mainly arise under three legal theories: (1) wrongful arrest; (2) failure to reasonably accommodate; and (3) failure to train. The following is a brief discussion of each of these commonly employed legal theories and certain aspects that warrant particular attention.

Wrongful Arrest

Courts that recognize a wrongful-arrest claim under the ADA do so in situations where law enforcement officers have wrongfully arrested a qualified individual with a disability because they misperceived the effects of that disability as criminal activity. In other words, liability may arise where law enforcement officers misconstrue certain actions taken by a qualified individual with a disability as suspicious, illegal, or uncooperative behavior. For example, a person may appear to be intoxicated when she in fact has a disability that causes her to have slurred speech, loss of balance, become lethargic, or become unconscious. Other examples include instances where a person suffering from a seizure may be perceived as being belligerent or disturbing the peace, or where a person who is deaf may appear as uncooperative.

However, a wrongful arrest claim under the ADA is not without limits. A disabled individual whose actions were unlawful receives no immunity from arrest due to his disability. For instance, an officer’s conduct in attempting to subdue an individual who is suffering from schizophrenia is not a wrongful arrest when the individual threatens the officers with a knife. As a result, probable cause to arrest a qualified individual with a disability will also likely foreclose liability under a wrongful arrest theory.

Failure to Make Reasonable Accommodations

Under a reasonable accommodations theory, liability is generally imposed where law enforcement officers fail to reasonably accommodate a qualified individual’s disability in the course of investigation or arrest, causing the person to suffer greater injury or indignity than other arrestees. For example, arresting, interrogating, or jailing a deaf individual without providing interpretive services may give rise to liability. However, an exception to this theory exists where law enforcement officers are faced with exigent circumstances in the line of duty. Law enforcement officers are not required to make accommodations prior to securing the safety of themselves, other officers, and any nearby civilians. In that light, the ADA would not apply to a law enforcement officer’s on-the-street responses, regardless of whether the incident involves subjects with physical or mental disabilities, prior to the officer securing the scene and ensuring that there is no threat to human life. That being said, once the officer has secured the area and the threat to human safety has been eliminated, the officer is under a duty to reasonably accommodate the qualified individual’s disability. The Eleventh Circuit has further limited potential liability under this theory by holding in Bircoll v. Miami-Dade County that the duty to provide a reasonable accommodation is not even triggered until a specific demand for an accommodation is made.

It is important to note that a wrongful accommodations claim is not limited to the context of arrests, but applies to providing accommodations after arrests, such as during police transportation and subsequent interrogations. For instance, an individual who sustains injuries while being transported in a police vehicle that was not equipped with wheelchair restraints may have an ADA claim. Moreover, liability may also arise for failing to provide reasonable accommodations to disabled inmates in jails and prisons. For example, a county jail may be liable under the ADA for depriving a disabled inmate of a wheelchair. Also, a prisoner who is denied access to certain amenities or programs because of a medical history may have a viable claim under the ADA.

Failure to Train

An emerging theory of liability under the ADA is based upon a failure to train. Courts have not been entirely consistent in their approach to this claim. In some jurisdictions, liability has been imposed on a county or municipality’s failure to train its law enforcement officers for peaceful encounters with disabled persons where such failure necessarily causes discrimination. Some jurisdictions, on the other hand, have failed to directly address whether a failure to train claim is even recognized under the ADA.

Courts which recognize such a claim look to the legislative history of the ADA. The House Judiciary Committee stated, “In order to comply with the non-discrimination mandate, it is often necessary to provide training to public employees about disability,” and such “discriminatory treatment based on disability can be avoided by proper training.” When enacting the ADA, Congress found that individuals with disabilities continually encounter various forms of discrimination, including failure to make modifications to existing practices.

Regulations promulgated by the Department of Justice are also instructive. According to the preamble of the regulations that interpret Title II of the ADA, “[t]he general regulatory obligation to modify policies, practices, or procedures requires law enforcement to make changes in policies that result in discriminatory arrests or abuse of individuals with disabilities.” Moreover, under 28 C.F.R. § 35.105(a), a public entity shall evaluate its current services, policies, and practices that do not or may not meet the requirements of the ADA, and if necessary, the public entity shall proceed to make necessary modifications. And, according to 28 C.F.R. § 35.130(b)(7), a public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.

Courts that decline to recognize a failure to train claim do so by turning to the plain language of the ADA itself. These courts hold that when looking at the plain language, a violation of Title II of the ADA does not occur until there has been an exclusion or denial of participation in, or the benefits of, a public entity’s services, which manifestly occurs well after any training of the public entity’s agents. Another reason to foreclose such a claim is that acts or omissions involved in failing to train an officer to deal with individuals with disabilities may have a disparate impact on these individuals as a class, but can never by itself equate to a specific act of intentional discrimination against a particular individual.


While it would be unreasonable to expect law enforcement officers to diagnose or recognize every disability, to avoid potential liability, officers should make an effort to distinguish between the effects of a disability from criminal behavior. Moreover, law enforcement officers should be cognizant that unless they are faced with exigent circumstances entailing a necessity to secure the scene or eliminate a threat of harm, they have a duty to provide reasonable accommodations to a qualified individual with a disability. Lastly, although jurisdictions are not uniform, counties and municipalities should consider incorporating the requirements and objectives of the ADA in training materials and to modify policies, if necessary, to guide officers’ interactions with disabled individuals.