As our readers know, we have been monitoring decisions regarding the ability of employers to take disciplinary action against employees for using marijuana at work (like this decision here). The most recent high court to weigh in on this topic is the Massachusetts Supreme Judicial Court, which looked at whether an employer may violate that state’s anti-discrimination law when it fires an employee because of a failed drug test based on the employee’s use of medical marijuana. The Court concluded that employers must accommodate medical marijuana users in the normal course under these circumstances to avoid a violation of that law. We discuss this important new decision – Barbuto v. Advantage Sales and Marketing, LLC – below.
In a decision that will provide some solace to employers asked to permit remote work as a reasonable accommodation under the Americans with Disabilities Act, the United States Court of Appeals for the Fifth Circuit recently held that the ADA did not require the Louisiana Attorney General’s Office to permit a litigation attorney to work from home indefinitely. In Credeur v. State of Louisiana, No. 16-30658 (5th Cir. June 23, 2017), the court determined that the employer did not fail to accommodate the attorney’s disability in violation of the ADA by denying her request to work remotely because it considered regular on-site attendance an essential function of her job and the statute and regulations required the court to “give the greatest weight to the employer’s judgment” on this issue.
The basketball court isn’t the only place you’ll see interesting uniforms this month. Many employers choose to implement and enforce their own uniform requirements and dress codes at work. But if done incorrectly, uniforms or dress codes may reinforce stereotypical gender roles and put transgender employees and applicants in a very uncomfortable place. In addition, some religious people in the workplace require exceptions to uniform requirements and dress codes in order to adhere to their beliefs. There was even a hotly debated Supreme Court opinion a couple years ago about a religious headwear exception to an employer’s dress code. These increasing changes in the law are forcing employers to take a time out to rethink their uniform and dress code strategies to make sure they do not travel out of bounds.
The EEOC recently published guidance for mental health providers describing their role in an employee or applicant’s request for a reasonable accommodation under the Americans with Disabilities Act (“ADA”). While the guidance is primarily aimed at providing information to mental health providers, it also presents the EEOC’s pronouncements on some fundamental precepts on the ADA and the reasonable accommodation process, which should interest employers and practitioners alike.
The obligation to accommodate a disabled employee is an ongoing one; a doctor’s note may not be a prerequisite to engage in the interactive process – those are two important lessons that employers should take away from a recent decision by a California Federal district court.
Last month, a California state appellate court issued a decision that, as the dissent characterized, went “where no one has gone before.” In Castro-Ramirez v. Dependable Highway Express, Inc., the court held that California’s Fair Employment and Housing Act (FEHA) – California’s anti-discrimination law – requires an employer to provide a reasonable accommodation to a nondisabled employee who associates with a disabled person. This troubling and broad interpretation of the law, which effectively would import a caregiver accommodation requirement into the law, has certainly captured the attention of employers even outside this jurisdiction.
As a recent federal appellate decision confirmed, the Americans with Disabilities Act does not require employers to always accommodate a disabled employee. Instead, it is the employee’s burden to first show that he or she can perform the essential functions of the job with said accommodation. Alternatively, if the employee cannot perform the essential functions of the job, he or she may seek, as a reasonable accommodation, a reassignment to a vacant position as long as the employee is qualified for that position. In both cases, the employer is relieved of the accommodation requirement if it can show an undue hardship would result. It was these essential function and vacancy issues that were the focus of the First Circuit’s opinion in Lang v. Wal-Mart Stores.
The Western District of Washington recently emphasized that the obligation under the Americans with Disabilities Act (“ADA”) to engage in good faith interactive dialogue when seeking an accommodation that will permit an employee with a disability to perform his or her job applies to employees as well as employers. In Huge v Boeing Co. (W.D. Wash. March 4, 2016), following a bench trial the court found the employee had failed to present evidence that her employer, Boeing Co., did not take reasonable measures to accommodate her Asperger’s Syndrome where the record showed the employee repeatedly engaged in obstructive and uncooperative behavior in response to Boeing’s proposed accommodations. Continue Reading Employee’s Failure to Participate in Interactive Process in Good Faith is Fatal to ADA Accommodation Claim, Says Washington Federal Court
New York Governor Andrew Cuomo recently signed a series of bills entitled the “Women’s Equality Agenda” that significantly amend the State’s equal pay, sex discrimination, harassment and other laws to provide additional protections for women in and outside the workplace. Among other changes, the amendments broaden the definition of “equal work” for equal pay, add “familial” status as a protected class, require employers to accommodate pregnant workers, authorize treble damages for willful violations, provide sex discrimination plaintiffs with a new right to attorneys’ fees and apply the law’s prohibition on sexual harassment to all employers regardless of size. The amendments, which we briefly summarize below, take effect on January 19, 2016.
Is passing gas now protected by our anti-discrimination laws? Over the past several years, we have written extensively (here, here, here and here) about the possibility of obesity discrimination lawsuits becoming the next wave of disability discrimination litigation, and now we have a new test case in New Jersey, and this time with a unique twist or two: a terminated employee claiming that his “extreme gas,” symptomatic of surgery related to his “disability” of obesity, led to his alleged unlawful termination, and the employee’s wife (who also happens to be his co-worker) claiming in a federal lawsuit that she was constructively discharged because of her association with her obese husband. Continue Reading Something is Rotten at the Pork Roll Company … and it’s not the Pork Rolls: Flatulent Employee (and his Wife) Bring Claims for Disability Discrimination