"disabilities/ADA" Blog Tag


Tourette syndrome, the ADA and racial harassment

August 28th, 2019 by Robin Shea at Constangy


Cursing at work

Is Tourette syndrome a disability?

Is the "N" word racial discrimination?

Can you fire someone who has Tourette syndrome?

And what about constructive discharge?

Robin Shea covers all of this and more.

Make your workplace a SUE-free zone

August 14th, 2019 by Robin Shea at Constangy


Sue free zone

To be clear (for those of you who don't look at the pictures in my posts, which frankly is a little hurtful), I am not referring to SUE the T. Rex (and yes that is the correct spelling, just ask The Field Museum).

I am referring to getting a piece of certified mail that may make you wish you were battling SUE and not being sued.

We turn again to Robin Shea for five of ten ways employers get themselves sued, as she weaves together medicine, Stranger Things, needles, nachos, the Dodd Frank Wall Street Reform and Consumer Protection Act and hygiene,

Court weighs evidence – bus (driver)'s obesity not a disability

August 2nd, 2019 by Robin Shea at Constangy


Bus scale

Obesity: physical impairment?

Obesity: covered by the ADA?

Termination: an option?

Obesity: disease?

Obesity: what is a "normal range"?

Obesity: physiological disorder?

ADA: public health statute?

Perception: reality?

Robin Shea sorts it all out, as she always does, plus provides a short history of obesity.

Measles in the workplace – just the FAQs ma’am

June 4th, 2019 by Katherine Dudley Helms at Ogletree Deakins


Just the facts maam

The measles is (are?) back and whether you believe in vaccination or not, the chances that you will need to deal with them (it?) in the workplace is greater than it has ever been in your professional lifetime. Katherine Dudley Helms answers six measles FAQs.

Obesity - disability, impairment, disease? Depends

May 8th, 2019 by Melissa Legault at Squire Patton Boggs


The American Medical Association has officially recognized obesity as a disease.

The EECO takes the position that obesity is an impairment under the ADA under some, but not all, circumstances.

Many courts have concluded that physical characteristics, such as obesity, are not considered disabilities under the ADA.

Melissa Legault helps you weigh the factors and provides some court examples.

"Fat shaming" at work can cost more than money, a lot of money

April 22nd, 2019 by Robin Shea at Constagy


Fat-shaming at work (and everywhere, but we do pander to the SEO gods) is rude, offensive, clueless, inappropriate, (insert your own adjective(s)), and expensive.

Not always expensive, but never helpful.

Robin Shea provides some background, including some help with the behaviour requirements for a legal claim of "intentional infliction of emotional distress" (spoiler alert - did this particular case reach the burden of proof? - OK, not really a spoiler alert) and a bit of potent advice" "Employers should never ignore such behavior".

I forgot ignorant. So ignorant.

 

Workplace Christmas Quiz (this is legit and will secondarily eat up some time before you get to go home)

December 24th, 2018 by Robin Shea at Constangy


Ralphie slide

One of our favorites, Robin Shea, invites you into her Christmas HR world with a Christmas-themed quiz featuring:

  • Santa
  • Bob Cratchit
  • circumnavigating the globe in one evening in a sleigh pulled by reindeer
  • Ralphie
  • Rudolph
  • Baby It's Cold Outside
  • The Grinch.

Thanks Robin!

And to all a good night!

Depression – what can an employer do?

November 21st, 2018 by hrsimple


Depression is an illness. Depression can be treated. Depression should not be ignored.

And the holidays can carry lots of triggers: sentimental memories, loneliness, less sunlight, changes in diet/routine, alcohol at parties, end-of-year timelines at work, unrealistic expectations.

What can you, as an employer, do?

Read "What to Say (and Not Say) When an Employee Is Depressed" from Suzanne Lucas, aka Evil HR Lady, where she provides some answers, including:

  • What do you say?
  • What are things you should not say?
  • What can you do to support an employee with depression?
  • How can you accommodate employees with depression?

Disability – Dr. or employee approved?

October 24th, 2018 by Fiona W. Ong at Shawe Rosenthal


Medicine is not a science

The U.S. Court of Appeals for the Seventh Circuit rejected an employer’s assertion that the employee was not disabled under the Americans with Disabilities Act because she had been cleared by her doctor to return to work without restrictions, where the employee still complained of physical limitations.

Disability/pregnancy practices – what not to practice

October 16th, 2018 by Robin Shea at Constangy


If nothing else, you want to read Robin Shea's blog because she makes a good in-context Kate Gosselin reference. Of course there is "else" which includes stuff you need to work through:

  • DON'T automatically terminate
  • DON'T automatically terminate (no, I DIDN'T stutter, there are two)
  • NO 100% recovered policy
  • "TEMPORARY" can mean a lot of things, like "disability" and "protected"
  • Medical exams/questionnaires – 10 words for you: STOP CHILDREN WHAT'S THAT SOUND EVERYBODY LOOK WHAT'S GOING DOWN.

There is also a picture that is not the Official "Grumpy Cat".

Bad mix – accommodation request and firing

September 28th, 2018 by Robin Shea at Constangy


Accommodation requests and firing are a bad mix, like a jalapeno and contacts or open nail polish in a car.

Robin Shea provides lessons learned from a tale that was not "I Can See Clearly Now" (Tom Jones does his own mix, you decide if it is good or bad).

  1. ADA accommodation requests should not be a pass-in-the-hall sorta thing (this goes for the employee too).
  2. Take any mention of disability seriously.
  3. If you are firing someone, really know why (BONUS: 5 questions to always ask when firing).
  4. Always tell HR.

And as this is Friday afternoon, how about a "Bad" mix: Martin Scorsese's film/video of Michael Jackson's classic.

I'll take "ADA in 5s?" please Alex

September 20th, 2018 by hrsimple


Five words:

  1. How
  2. can
  3. I
  4. help
  5. you?

Five tips:

  1. simple for simple
  2. engage / interact
  3. preferential treatment is OK
  4. document, document, document
  5. respond to co-workers questions

Being at work full time is not an essential function of a job?

October 24th, 2018 by Fiona W. Ong at Shawe Rosenthal


Where you at

The U.S. Court of Appeals for the Sixth Circuit held that “full time presence at work is not an essential function of a job simply because an employer says that it is.” Interestingly, this seems to run counter to the Americans with Disabilities Act regulations, which state that evidence of whether a job function is essential includes, first, “The employer’s judgment as to which functions are essential.”

Lessons learned: 

  1. explain why the functions are essential
  2. what is the effect of an absence on the business
  3. not surprisingly, document, document, document

Treating service animal requests (always treat the animal)

August 14th, 2018 by hrsimple


Pluto meets dog

Service animal pop quiz (yes/no):

  • The ADA permits assistance dogs to be with their person where members of the public can go (yes)
  • The ADA requires service dogs to be professionally trained (no)
  • Minature horses are covered under the ADA and Great Danes can be the size of miniature horses (yes and yes - I saw two at the dog park last night)

Peter Petesch at our partner Littler, suggests, among other things in this SHRM article, covering the following when handling service animal requests:

  • it's an accommodation request
  • alternatives?
  • doctor's note?
  • confidentiality!
  • what are the ground rules?

And for those of you in Philadelphia, a BONUS Littler workshop on September 6, Doggy Dilemmas: Accommodating Service Animals for Employees and Customers, complete with a demonstration from Canine Companion's assistance dog Mork.

Job tasks and essential functions under the ADA

August 16th, 2018 by Richard R. Meneghello and Myra K. Creighton at Fisher Phillips


For those of you who consider yourself a rules stickler, please see "Is the employee disabled under the ADA?" which is Part Uno in this blog series of two.

For those of you who are more of a rules recusant, the china shop is yours.

No, you can't sleep on the job

August 1st, 2018 by Shelby Skeabeck, formerly of Shawe Rosenthal


However, you can discipline and even terminate employees for violating work rules even though they have a legally protected condition.

"We need to talk" isn't any easier to say than to hear

October 24th, 2018 by Mathew Parker at Fisher Phillips


Nobody wants to hear those four words – "We need to talk" because it isn't going to be an easy conversation.

But you probably don't want to be the one saying them either.

Fact of HR: you are going to be saying those words at some time. And the longer you avoid saying them, the greater the anxiety for you and the more the entire workplace will suffer. Mat Parker from Fisher Phillips has 5 tips to help:

  1. Identify
  2. Clarify
  3. Open mind / open ear
  4. Manage / preserve
  5. Follow up

PS: PTSD IRL*

July 12th, 2018 by hrsimple


Obvious fact: you want to make sure your employees are taken care of.

Not so obvious fact: some of them might be suffering from Post Traumatic Stress Disorder (PTSD).

Possibly even shocking fact: your workers’ compensation plan may cover PTSD treatment.

Want to learn more about PTSD in the workplace and what treatment options are available? Our friends at the Iowa Association of Business and Industry and their friend Juli Jenkins at LMC Insurance and Risk Management have some good basic info for everybody.

* In Real Life

Is the employee "disabled" under the ADA?

September 10th, 2019 by Richard R. Meneghello and Myra K. Creighton at Fisher Phillips


ADA disability: 

An individual is “disabled” under the terms of the statute if they have a “physical or mental impairment” that “substantially limits” one or more major life activities.**

That's a lot of quotation marks, which typically means BEWARE!

Rick and Myra provide some examples and some practical lessons, including:

  • err on the side of caution and at least begin the process of working with the employee
  • even if you're right, it might be easier and cheaper to provide an accommodation than go to court
  • not being able to work overtime doesn't mean you are disabled.

** Of course, employees might also be considered disabled under the ADA if the employer regards them as being so impaired or has a record of such impairment, but for the purposes of this article, we’ll focus on the questions surrounding whether they actually have that kind of impairment.

How to approach an employee showing signs of cognitive decline

March 12th, 2019 by Sofija Anderson at Littler


Dear Littler: We have an employee who is exhibiting signs of dementia or some other sort of cognitive impairment. He has fallen asleep at work a few times recently and seems confused by tasks that did not pose any problem for him in the past. His performance was solid for years but started declining in the past several months, along with his attention to detail. How do we handle our concerns about his well-being and performance? Should we ask him what’s going on with his health?

                                                                                                 —Worried in Wisconsin

Dear Worried in Wisconsin . . .

What is the ADA?

June 12th, 2018 by Nancy Van der Veer Holt at Ford Harrison LLP


The Americans with Disabilities Act (ADA) was signed by President George H. W. Bush in 1990. It became effective July 26, 1992. It was most recently amended in 2008 with proposed regulations issued in September 2009 as to these amendments.

The ADA’s purpose was to address and prohibit discrimination against persons with disabilities in matters relating to employment, housing, public accommodations, education, transportation, communication, recreation, health services, voting, institutionalization, and access to public services. According to initial Congressional findings, approximately 43 million Americans are disabled, either physically or mentally. This number will increase as the population becomes older and as the ADA Amendments go into effect. For more information, see Chapter 15, The ADA Amendments Act of 2008.

The ADA consists of five titles or sections: