Showing 38 posts in Disability.

Wisconsin Supreme Court Mints New Test for Determining Discriminatory Intent in Disability Cases

July 10, 2018 by Hinshaw & Culbertson LLP

In a huge win for Wisconsin employers, the Wisconsin Supreme Court rejected the longstanding version of the inference method followed by the Labor Industry Review Commission (LIRC) to determine intent in disability discrimination cases involving conduct that manifests from the employee’s disability. It replaced LIRC’s method with a two-part inquiry that requires employees to prove (1) the employer took an adverse employment action against him or her because of conduct caused by his or her disability, and (2) the employer knew the employee’s conduct was caused by his disability. More ›

Taking Work Restrictions Seriously: The EEOC Is Targeting “100% Healed” Policies as Systemic Disability Discrimination

July 10, 2018 by Hinshaw & Culbertson LLP

A “100-percent healed” policy refers to a practice or procedure that mandates that an employee be released to work by his physician without any restrictions before he may return to work. For example, if an employee who took FMLA leave for carpal tunnel surgery was released to return to work with a reasonable restriction, e.g., 10 minute break after every hour of prolonged typing, a 100-percent healed policy would prevent the employee from returning to work, perhaps altogether if the restriction becomes permanent. More ›

Trust the Process: Relying on Existing Law or Policy is not an ADA Defense Says Third Circuit

June 25, 2018 by Hinshaw & Culbertson LLP

Many times, employers evaluate disability claims by simply checking the boxes. It’s easy to develop tunnel vision, especially when the employer feels the issue is narrowly defined by an existing law or policy, e.g., a law or employer policy requiring that certain employees be vaccinated. However, this narrow frame of mind may cause employers to miss the complete picture. A recent 3rd Circuit Court of Appeals (DE, NJ, PA) decision illustrates the consequences of missing the big picture. In Ruggiero v. Mount Nittany Medical Center, the court addressed the interplay between a hospital’s vaccination policy and the ADA, holding held an employee’s ADA claim could proceed because the hospital failed to engage in the interactive process. The Court held the hospital had a duty to engage in the process once aware of her disability and request for accommodation, regardless of its policy requiring that all employees be vaccinated. More ›

Seventh Circuit Sets Proof Paradigm for ADA Interference Claims

September 28, 2017 by Tom H. Luetkemeyer

Too often, we think of Americans with Disabilities Act (“ADA”) claims in terms of discrimination and failure to accommodate. Employment lawyers typically see interference claims in the context of other employment statutes, such as the Family Medical Leave Act (“FMLA”). However, the ADA also includes a provision prohibiting interference. It is unlawful for an employer to “coerce, intimidate, threaten or interfere with any individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by the ADA.”  More ›

Seventh Circuit Holds a Multi-Month Leave is Not a Reasonable Accommodation

September 25, 2017 by Hinshaw & Culbertson LLP

Last week the Seventh Circuit dealt a blow to the EEOC's continued position that medical leave is a reasonable accommodation when the leave is (1) of a definite, time-limited duration; (2) re-quested in advance; and (3) likely to enable the employee to perform the essential job functions upon return. The panel rejected that position, noting it glossed over the length of the requested leave, improperly transforming the ADA into "an open-ended extension of the FMLA." More ›

UPDATE: Massachusetts Medical Marijuana Patient Can Sue Employer for Discrimination

July 18, 2017 by Hinshaw & Culbertson LLP

On Monday, Massachusetts Supreme Judicial Court ("SJC") issued a decision in Barbuto v. Advantage Sales and Marketing, holding that an employee may sue her employer for handicap discrimination based on her status as a medical marijuana patient. More ›

EEOC Issues Final Regulations on Wellness Programs

May 18, 2016 by Anthony E. Antognoli, Aimee E. Delaney

Employers who provide employees with incentives to encourage healthy behavior must contend with an alphabet soup of federal law — ERISA, GINA, HIPAA, the ACA, the ADA, just to name a few. Earlier this week, the EEOC weighed in and finalized its latest guidance on how employer wellness programs should be structured. These final regulations largely adopt the proposed regulations that were issued in 2015. More ›

Knock-Knock, Who’s There? The EEOC: When the EEOC’s can Investigate an Employer’s Premises Without Prior Consent

May 3, 2016 by Hinshaw & Culbertson LLP

When the EEOC investigates a charge of discrimination, it may employ one of several investigatory methods, including site inspections.  In EEOC v. Nucor Steel Gallatin, Inc., a case of national first impression, a Kentucky district court considered whether to enforce a subpoena requiring the employer to provide on-site access to conduct witness interviews, examine the facility, and obtain additional information relating to the position the complainant applied for, or alternatively, to require the EEOC to obtain an administrative warrant.   More ›

Employee’s Inability to Meet Job’s Attendance Requirements Divests Her of ADA Protections Sixth Circuit Holds

April 27, 2016 by Hinshaw & Culbertson LLP

The converging paths of the Family Medical Leave Act's (FMLA) and the Americans with Disabilities Act (ADA) ranks among the most difficult legal issues for employers to safely traverse. Employers should think twice before terminating an employee who cannot return to work after 12 weeks of FMLA leave. This is because courts across the country have held that additional leave may be a necessary reasonable accommodation under the ADA. The question then becomes, how much additional leave does one need to provide an employee before he or she is no longer protected by the ADA. More ›

Haze Lifting on Employer's Rights and Medical Marijuana

January 13, 2016 by Aimee E. Delaney

The fast expansion of the medical marijuana movement has brought with it growing confusion on the line between a workers' rights to take advantage of the rights afforded by these state statutes and an employer's right to enforce its anti-drug policies. Last week, a New Mexico District Court decision added to the recent list of decisions to tackle this issue and, in doing so, came down on the side of the employer. More ›

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