Employers often must balance the mandates of seemingly competing directives. A challenging example arises in the area of possible mental impairment.  An employer may hear concerns that an employee is acting abnormally, or has hinted at a desire to hurt herself, or is exhibiting other possible signs of mental impairment.  The employer does not wish to stereotype the employee unfairly, or unlawfully “regard” the employee as disabled; yet, the employer also must ensure a safe work environment for other employees and others on the premises. Continue Reading Mental Impairments: When Can an Employer Require a Fitness-for-Duty Exam?

On April 16, 2015, the Equal Employment Opportunity Commission (“EEOC”) issued proposed regulations on the application of the Americans with Disabilities Act (“ADA”) to wellness program incentives. The release was followed closely by FAQs and a fact sheet. Other agencies similarly provided guidance, including joint FAQs from the Departments of Labor, Health and Human Services (“HHS”), and Treasury, and individual FAQs from HHS. Continue Reading EEOC Joins Other Agencies with Proposed Regulations on Wellness Programs Incentives

Is the Supreme Court’s recent decision in Young v. United Parcel Service, here, a limited ruling, applicable only in the context of the Pregnancy Discrimination Act (PDA)? Or, does the decision ring in a whole new (and less employer-friendly) era in discrimination case law? It is too early to tell. Allow this explanation for why.

The Supreme Court ruled that UPS may have violated the PDA by not providing a temporary light duty assignment to a pregnant driver who was on temporary, pregnancy-related restrictions. But the Court found that neither party was entitled to their desired interpretation of the PDA. Continue Reading Supreme Court Revives Pregnancy Discrimination Case

A trucking company has a practice of not returning any trucker to a driver position if that trucker has admitted to being an alcoholic, even if the trucker completes a treatment program. The EEOC sued on behalf of a trucker and challenged this practice. In this instance, however, the trucker did not complete a treatment program. He explained that he did not complete a program since it would be futile – he could not get his job back anyway.

In a recent ruling, a District Judge in Arkansas ruled that the trucking company’s practice of automatic disqualification of the alcoholic trucker violated the Americans with Disabilities Act (“ADA”). The Court ruled that a jury will have to decide the merits of the specific driver’s claim, but the Court entered an injunction against the trucking company from further use of its practice. EEOC v. Old Dominion Freight Line, Inc. (W.D. Ark. June 24, 2013) found here. Continue Reading EEOC Continues Attack on Employer Practices that “Automatically” Disqualify

The Americans with Disabilities Act (ADA) prohibits a covered employer from requiring an employee to undergo a “medical examination,” unless the examination is shown to be job-related and consistent with business necessity. The Sixth Circuit Court of Appeals recently held that an employer’s demand that an employee seek psychological counseling as a condition of continued employment may constitute a violation of the ADA.

In Kroll v White Lake Ambulance Authority, Case No. 10-2348 (6th Cir. 2012), the plaintiff, Emily Kroll, was an Emergency Medical Technician for White Lake Ambulance Authority (WLAA). She had an affair with a married co-worker and began to exhibit stress and anger at work. Several co-workers expressed to management concern for her well-being. On one occasion, while transporting a patient in emergency status, she was screaming at someone on her telephone. WLAA questioned whether Kroll could perform her job safely and told her that she must attend counseling in order to continue working. There was a dispute whether WLAA required that the counseling be psychological in nature. Kroll refused to seek counseling and did not return to work at WLAA. Continue Reading Requiring Employee to Seek Counseling May Violate ADA

A Tennessee federal judge recently ruled that a termination notice referring to an employee’s “long-term disability” was direct evidence of discrimination and retaliation.  The Court granted the employee judgment as a matter of law under the ADA.

The employee, Coffman, had been off work on an extended medical leave.  She had exhausted her FMLA leave and remained off work due to restrictions.  Coffman refused a job offer of a sedentary job.  Notes from Coffman’s physician indicated that the refusal was unreasonable, but the employer did not obtain those notes until after it had fired Coffman.  At the time, the Company accepted her refusal of the sedentary job and kept her on leave.  Continue Reading Termination Notice Referring to Disability Considered Direct Evidence of Discrimination

Based on recent developments, employers wonder how much leave is really required under the ADA.  It seems that employers with even generous policies and practices have run afoul of the EEOC either in individualized cases, or, worse yet, in class claims.

Most recently, Verizon Communications Inc. settled for a record $20 million payout based on EEOC allegations that Verizon’s no-fault attendance policies did not adequately provide for an individualized assessment of an employee’s condition.  The EEOC has been focusing on such “no-fault attendance” and “maximum leave” policies.

How much leave is required, however, is not the correct question.  The better question is:  “What must be included in the employer’s process of evaluating an employee’s need for leave?”

Compliance with the ADA is often a “process driven” evaluation.  How you do something is almost as important as what you do. Continue Reading ADA Developments – “How Much Leave Is Required?” Is the Wrong Question

The Tennessee Human Rights Act (THRA) applies to employers with eight or more employees within the state and prohibits discrimination based on race, creed, color, religion, sex, age or national origin.  The interpretation and enforcement of the THRA follows closely that of Title VII and the Age Discrimination in Employment Act (ADEA).

The Tennessee Human Rights Commission (THRC) investigates charges of discrimination brought under the THRA, although most charges of this nature are filed jointly with the EEOC and THRC.  Under a work-sharing agreement between the two agencies, most discrimination charges are investigated by the EEOC.  Because Tennessee is a “deferral state,” discrimination charges must be filed within 300 days of the alleged discriminatory act.  Continue Reading What are the Protected EEO/Non-Discrimination Categories in Tennessee?

Interactive processAs an employer’s representative, I know that when I become aware of an employee’s disability, or even now, under the Americans with Disabilities Act (ADA) amendments, when I become aware of an employee’s impairment that could impact the employee’s job, I must engage in an “interactive process.”  But what is that?  How does the interactive process work?

The interactive process is two-way communication between the employer and employee regarding the potential job assistance needs that may be used to assist the employee in performing his/her job.  This communication lays the groundwork for a joint decision-making process.  Not only will this assist in providing an employer with a great good-faith defense in an ADA claim (and perhaps thereby reduce damages) the process also is consistent with “best practices” in creating the type of work environment where we all would want to work.

Continue Reading What is the “Interactive Process”?