Last week, in a case of first impression titled Kroll v. White Lake Ambulance Authority, the Sixth Circuit found that psychological counseling may qualify as a “medical examination” under the Americans With Disabilities Act (“ADA”), which forbids employers from requiring medical exams unless they are job-related. The Circuit Court vacated the lower court’s ruling in favor of White Lake Ambulance Authority on summary judgment in a discrimination case brought by Emily Kroll, a former employee. Kroll had refused to attend psychological counseling mandated by White Lake after other employees reported concerns about Kroll’s well-being and White Lake received a complaint that Kroll had been screaming at a male acquaintance on her cell phone while driving an ambulance in emergency status with lights and sirens. The district court found that such psychological counseling alone did not constitute a medical examination.
Almost two years ago, we wrote that the EEOC had filed its first-ever lawsuit asserting that “severe” obesity was a protectable disability under the ADA. That case, EEOC v. Resources for Human Development, Inc., provided little guidance to employers about where the EEOC would draw the line on when obesity is “severe” enough to constitute an ADA-protected disability. Although it is still unclear where that line is, it is now clear that the EEOC considers “morbid” obesity” to be a protectable disability under the ADA.
We have written before about the EEOC’s position that inflexible leave of absence policies may violate the Americans with Disabilities Act. For example, as discussed in a prior blog entry, in July 2011, the EEOC settled a lawsuit filed against Verizon and a number of its subsidiaries, which claimed that Verizon violated the ADA with its progressive discipline policy that imposed discipline for all absences, including those absences caused by an employee’s ADA-covered disability. To resolve the lawsuit, Verizon agreed to pay $20MM and to revise its attendance and ADA policies by providing exceptions to the no-fault attendance policy as reasonable accommodation for covered disabilities.
Employee is Not "Substantially Limited" Under the ADA When He is Able to Work a 40-Hour Week But No Overtime.
Some people just can’t catch a break. In recent years, this was certainly true of Michael Boitnott, an employee of Corning Incorporated. Mr. Boitnott, a maintenance engineer, worked a schedule that was typical for similarly-situated co-workers, which included twelve-hour shifts, alternating bi-weekly between day shifts and night shifts. Throughout 2002 through 2004, Mr. Boitnott experienced health problems for which he was periodically absent from work, including abdominal pain, a heart attack with further cardiac difficulties, and leukemia. In February 2004, following his leukemia-related absence, Mr. Boitnott regained his health and told Corning he was ready to return to work. According to his physician, however, Mr. Boitnott was limited to working a typical 40-hour, day-shift workweek without overtime. Thus, Mr. Boitnott could not return to his former schedule of twelve-hour rotating shifts.
The Office of Federal Contract Compliance Programs (OFCCP), an agency of the United States Department of Labor, has proposed a new rule that would require those federal contractors and subcontractors that are subject to affirmative action laws and regulations to set a hiring goal of having 7 percent of their workforces be people with disabilities (read the DOL press release here).
Psychiatric Disabilities Under the ADA: proposed changes to diagnostic tool may result in a broader definition of "disability"
I just read a very interesting article. titled “Furor over DSM-V.” Apparently, the Diagnostic and Statistical Manual (DSM), published by the American Psychiatric Association as a diagnostic tool), is in the process of being revised (for the fifth time, hence “V”). Details of the proposed changes were recently released and, if implemented in their current form, may significantly impact employers’ obligation to accommodate disabilities under the Americans with Disabilities Act.
California's DFEH Drops The Disability Discrimination Hammer - Largest Administrative Award In Its History
On September 12, 2011, the California Department of Fair Employment and Housing (“DFEH”) announced its largest-ever administrative award of $846,300 (and no, that’s not a typo) against electrical supplier Acme Electric Corporation (“Acme”) for firing an employee, Mr. Charles Richard Wideman, because he had cancer.
Here is what happened...
The EEOC recently published an informal discussion letter, outlining its perspective on the impact of the Genetic Information Nondiscrimination Act (GINA) on employer-sponsored workplace wellness programs. More specifically, the letter discussed how and to what extent employers may offer incentives to employees to participate in wellness programs without violating GINA.
EEOC: Employer Liable for Violating ADA Despite Employee's Failure to Adequately Document Disability or Need for Accommodation Prior to Filing Her Claim
In a case all employers should find troubling, the EEOC recently held that a federal agency-employer discriminated on the basis of disability by denying an employee’s request for accommodation, despite the fact that information the employee provided when making his request and during the time in which the employer and employee engaged in the required interactive process did not show either that the employee was disabled or how the accommodation related to his alleged disability. In Harden v. Astrue, EEOC DOC 0720080002 (August 12, 2011) the EEOC found that sufficiently detailed medical and other documentation was provided to the employer after the employee filed a charge of discrimination, during discovery process associated with the charge. Therefore, the EEOC concluded, the employee was disabled and entitled to reasonable accommodation.
Huh? So what’s an employer to do? From the EEOC’s perspective, the apparent answer is that an employer must continue to engage in the interactive process of accommodation indefinitely and must err on the side of allowing an accommodation.