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Americans With Disabilities Act

Wednesday, May 20, 2015

Can Telecommuting be a Reasonable Accommodation to a Disability?

More and more, companies are allowing employees to work from home. Proponents of telecommuting (employers and employees alike) argue that telecommuting can cut costs, reduce turnover and actually increase productivity. Many opponents of the popular telecommuting movement insist that a team with members scattered about can't collaborate as effectively and efficiently when they're not physically located in the same office environment. In some cases, however, regardless of management’s general preferences, telecommuting may be a reasonable accommodation to a disability depending on the facts of the situation and the job’s requirements.

If an employee has a disability, as defined by the federal Americans with Disabilities Act, the employer needs to make reasonable accommodations to the employee so that person can perform the essential functions of the position.

To be qualified for the job, the employee must be able to perform the essential functions of the job with or without a reasonable accommodation. An employer need not provide an accommodation that imposes an undue hardship on running the operation.

Reasonable accommodation disputes are driven by the facts of the particular case. Telecommuting may be a reasonable accommodation to one person holding a particular job working for one employer, but it might not be reasonable for a different job for another employer.

In a recent case in the U.S. Court of Appeals for the Sixth Circuit, EEOC v. Ford, the appeals court ruled in favor of the employer and stated that for Jane Harris, an employee seeking an accommodation due to her irritable bowel syndrome, telecommuting was not a reasonable accommodation. The court agreed with the trial court and dismissed the case.

Harris worked as a resale buyer for Ford (she was an intermediary between suppliers and her company) and the court found that the work not only consisted of communications by phone and email, but personal interactions through meetings with suppliers at their sites and Ford employees at Ford sites. This personal interaction was found to be an essential function of the job, one she could not perform if she only worked at home.

If you are unsure as to your own situation, take time to consider whether others performing the same job can telecommute as that would strengthen a claim that telecommuting should be permitted as an accommodation to your disability as well. If an employer allows non-disabled employees to telecommute, but does not allow that for disabled employees, in addition to this being accommodation issue it is also disability discrimination based on the fact that a disabled employee is being prevented from enjoying equal terms and conditions of employment.

If you live in Georgia and believe that you need an accommodation at work because of your disability, the disability discrimination attorneys at Pankey & Horlock, LLC, can answer your questions and advise you of your legal rights and your employer’s responsibilities. Call today at (770) 670-6250 for a free case evaluation.


Tuesday, October 14, 2014

Supreme Court Declines to Consider Former Pharmacist's Discrimination Claim

Establishing a clear factual basis for a claim is essential to success in court.  Appellate courts are loathed to alter findings of fact and generally will only rule on errors in the application of law.  For a CVS Pharmacist, a key finding may have torpedoed his case and subsequent appeals.

CVS had terminated pharmacy staff member Weldon Williams, who suffers from Type 2 diabetes.  He brought a class action suit claiming that CVS' failure to accommodate his disability violated the Americans With Disabilities Act (ADA).  He also accused them of age discrimination because a younger employer earned more, and alleged a violation of the Family and Medical Leave Act, because CVS would not permit him to return from work after a medical leave.

CVS had argued that the plaintiff's foot pain prevented him from standing for the long periods and prevented him from performing his essential job functions. This made him ineligible for protection under the ADA.  A federal district court in Savannah, Georgia agreed and granted CVS a summary judgment. The Eleventh Circuit Court of Appeals upheld the district court's decision.

A key issue in the case was how much "accommodation" Williams had requested.  CVS said he had asked for a full-time technician to be assigned to assist him, a fact the Court of Appeals noted and relied on. 

In his petition to the United States Supreme Court, Williams said that he had never asked for a full-time technician.  The "reasonable accommodation" he sought could have meant simply transferring him to a CVS Pharmacy with more staff, he argued.  But the Supreme Court declined to review the case.

Had Williams been able to establish early on in the case that his needs could have been easily accommodated his claim of an ADA violation might have been stronger.  

If you feel you have been the victim of discrimination on the job based on disability, race, or any other reason, expert counsel can advise you on whether you have a claim and how to make the strongest case for it.

The skilled attorneys at Pankey & Horlock, LLC have effectively represented employees throughout Georgia in workplace discrimination cases.  For a free confidential case evaluation call our experienced team at (770)670-6250 today.


Tuesday, May 20, 2014

Employers Continue to Discriminate Against Individuals with HIV

More than 1 million people in the United States are living with HIV. Despite efforts on the part of lawmakers to prevent discrimination in the workplace for individuals living with this disease, several recent court cases indicate that discrimination in the hiring and firing process remains prevalent across a wide array of industries.

The Americans with Disabilities Act (ADA) prohibits an employer from discriminating against a qualified candidate due to his HIV status. The Equal Employment Opportunity Commission, the federal government agency responsible for enforcing federal laws prohibiting employment discrimination, recently filed a lawsuit against Maxim Healthcare Services for refusing to hire a candidate after they learned that he was HIV positive. In the suit, the EEOC claims that the staffing service for healthcare professionals extended an offer to a qualified candidate for a position that involved sitting with patients at a local VA hospital. The offer was contingent upon the individual’s completion of a physical. The candidate underwent the examination and the health certificate clearly stated that the candidate was fit to work but it also did indicate his HIV status. The suit claims that upon reviewing the health certificate, Maxim refused to assign the candidate to the VA hospital. The EEOC is seeking an order that would prohibit Maxim from engaging in any other discriminatory hiring practices. If found to be in violation of federal law, Maxim may also be required to pay lost wages, compensatory and punitive damages, amongst other affirmative relief efforts.

Unfortunately, the Maxim case is not an isolated incident. Recent EEOC data obtained and analyzed by RH Reality Check, an online publication devoted to sexual and reproductive health and justice reporting, found that 25 cases have been filed by the EEOC over the past 10 years for discrimination on the basis of HIV and AIDS. Four of these cases are still in litigation. The report further detailed that between 1997 and 2013, the EEOC received almost 4,000 complaints from employees who had suffered discrimination based on one’s HIV or AIDS status.

For over two decades, the attorneys of Pankey & Horlock, LLC have represented employees throughout Atlanta who have faced illegal discrimination in the workplace. If you have a disability and were consequently treated unfairly during the hiring process or throughout the course of employment, you deserve justice and compensation for your suffering. Contact our knowledgeable legal team to schedule your confidential free case evaluation. Call 770-670-6250 today.


Sunday, December 30, 2012

Online Toolkit Helps Employers Recruit and Employ Veterans

The federal government recognizes that challenges exist for employers who want to recruit and hire war veterans.  Many veterans, especially those who have seen combat duty, return to the workforce with medical conditions like post-traumatic stress syndrome (PTSD) or traumatic brain injury from explosive-related concussions.  Veterans who are employees may require accommodations in order to successfully perform their work functions.

The medical conditions that veterans bring to the workplace may be unfamiliar to some employers, even those with significant experience negotiating reasonable accommodations for other employees with other types of disabilities or medical conditions.

Keep in mind that PTSD is not automatically a medical condition covered by the Americans With Disabilities Act (ADA).  The ADA does not include a list of covered medical conditions.  Instead, the ADA defines disability as a physical or mental impairment that substantially limits one or more major life activity.  Therefore, some returning veterans with PTSD may be protected by the ADA, whereas others may not be.

Be that as it may, many employers wish to support returning veterans by offering employment and by offering accommodations so that veterans may perform their jobs.  But, how many employers know what kind of accommodations to offer to an employee with PTSD or a traumatic brain injury?

This is where “America’s Heroes at Work” comes in handy.  Published by the U.S. Department of Labor and launched in mid-December 2012, the America’s Heroes at Work website provides a comprehensive resource service for employers who wish to recruit, hire and retain veterans.  In addition to offering answers to frequently asked employer questions about veterans in the workplace, the America’s Heroes at Work website provides a step-by-step customizable toolkit that employers can use to design and implement a veterans’ recruitment and retention strategy.

America’s Heroes at Work answers questions that employers might have, such as:

  • Will a person with PTSD have violent outbursts at work? 
    “Employees who manage their symptoms through medication or psychotherapy are very unlikely to pose a threat. Employers may help reduce the overall stress in the work environment or mitigate known vulnerabilities to stress by providing a job accommodation.”
  • Does the law require employees or applicants with PTSD or traumatic brain injury to disclose their conditions when returning to or applying for a job?
    “No. Employees need only disclose their disability if/when they need an accommodation to perform the essential functions of the job.”

 

The America’s Heroes at Work website also provides access to a wealth of additional resources for employers who are seeking to offer employment to returning war veterans, wounded warriors and military spouses.

Reasonable accommodations that might support a veteran with PTSD in the workplace include scheduled rest breaks to prevent stimulus overload, job coaching, office locations in quiet areas, and job sharing.

 

 


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