This case tests the limits of an employer’s attendance policy. Just how essential is showing up for work on a predictable basis? In the case of a neo-natal intensive care nurse, we conclude that attendance really is essential.
So begins the United States Court of Appeals for the Ninth Circuit in Samper v. Providence St. Vincent Medical Center.
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.
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.
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.
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.
The number of religious discrimination cases has risen steadily over the past decade. This trend may continue, at least in New York City, well into the future. On August 17, 2011, the New York City Council, NYC’s law-making body, passed Local Law Int. No. 632-A, which amended the NYC Human Rights Law – already one of the strongest in the nation – to provide increased protections against religious discrimination.
