Wyatt Employment Law Report


Leave a comment

Long-Term Leave Not a Reasonable Accommodation Under the ADA… According to the Seventh Circuit

medical leave request

By Michael D. Hornback

The intersection between the Family Medical Leave Act (“FMLA”) and the Americans with Disabilities Act (“ADA”) is sticky, at best.  Over the years, partners in my Firm and I have received phone calls that go something like this: “Hey, Lawyer.  I have an employee who has been off work dealing with [insert medical condition].  He is supposed to be back next week, but now he is saying he needs more time off to deal with [aforementioned medical condition].  What do I do?”  Good question.  And the answer is not always clear.

This is precisely the set of circumstances the Seventh Circuit Court of Appeals considered in Severson v. Heartland Woodcraft, Inc., — F.3d —, 2017 WL 4160849 (Sept. 20, 2017).  The short version of the opinion is that in the Seventh Circuit, long-term leave is not a reasonable accommodation under the ADA.  The Seventh Circuit Continue reading


Leave a comment

The EEOC Weighs in on HIV-Positive Workers

By Amanda Warford Edge

The Equal Employment Opportunity Commission (EEOC) has long considered HIV infection to be a disability within the scope of the Americans with Disabilities Act (ADA). From 1997 to 2014, the EEOC received in excess of 4,000 charges alleging ADA violations based on HIV status. In 2014, the EEOC resolved 197 charges and obtained over $800,000 for individuals who filed charges based on HIV status. The EEOC has also filed several lawsuits over the past few years against employers based on claims alleging failure to hire, discrimination and failure to accommodate individuals with HIV.

On December 1, 2015, in conjunction with World AIDS Day, the EEOC posted two publications that address HIV-positive workers. Through these publications, the EEOC makes clear that employers “cannot rely on myths or stereotypes about HIV infection when deciding what [they] can safely or effectively do.”

The first publication, entitled “Living with HIV Infection: Your Legal Rights in the Workplace Under the ADA,” removes all doubt that those with HIV: (1) have workplace privacy rights; (2) are protected from discrimination because of Continue reading


1 Comment

Beware the Dangers in Unemployment Compensation Hearings

By Sean G. Williamson

medical leave requestAn unemployment compensation hearing can be fraught with dangers for the unsuspecting or unprepared employer.  Many employers disregard such proceedings as low risk because any benefits will be paid from the state’s unemployment insurance fund to which all employers must contribute.  But the factual issues raised in unemployment compensation hearings closely relate to more significant sources of employer liability, such as the Family and Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. § 2601 et seq., and the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101 et seq.  The recent decision of the Kentucky Court of Appeals in Hicks v. Kentucky Unemployment Insurance Commission, — S.W.3d —, No. 2014-CA-001061-MR, 2015 WL 7351398 (Ky. App. Nov. 20, 2015), illustrates the potential intersection between those seemingly distinct areas of law and the need for a forward-looking strategy to avoid future claims.

Tarsis Hicks worked as an interpreter for Fairview Community Health Center (“Fairview”).  She assisted Spanish-speaking patients in communicating with medical staff.  During her employment, Hicks received a diagnosis of breast cancer.  She then took leave from work under the FMLA to undergo chemotherapy treatments.  After exhausting her twelve weeks of FMLA leave, Hicks requested that Fairview allow her to work from home by Continue reading


Leave a comment

The EEOC’s New Proposed Rule: Long-Awaited Workplace Wellness Regulations

By Leila G. O’Carra

Last year, the EEOC sued three different employers (Honeywell, Orion and Flambeau),1 claiming that the companies’ workplace wellness programs violated the Americans with Disabilities Act. Except for the EEOC’s court papers in these cases, employers have had little guidance on the ADA’s requirements for wellness programs. On April 20, 2015, the EEOC finally revealed its position.

worksite wellnessThe EEOC’s proposed rule applies to employers with 15 or more employees that offer workplace wellness programs that include disability-related inquiries or medical exams. According to the proposed rule, covered wellness programs must be reasonably designed to promote health or prevent disease. Further, covered wellness programs must be voluntary. That is, the employer: (1) may not require employees to participate; (2) may not deny coverage under any of its group health plans for non-participation (or limit benefits except as specifically allowed in the regulation); (3) may not take adverse employment action or retaliate against employees who do not participate; and (4) if the program is part of a group health plan, must provide a detailed notice with information about the program. The notice must be reasonably likely to be understood by Continue reading


Leave a comment

U.S. Department of Justice’s Civil Rights Division Rules that School District Staff Must Assist Student with Handling of Service Dog

By Jason A. Lopp

On April 13, 2015, the U.S. Department of Justice’s Civil Rights Division issued a ruling stemming from an investigation of the Gates-Chili Central School District (DJ No. 204-53-128) located in Rochester, New York. A complaint was filed against the school district by the parent of a student attending elementary school in the District. According to the ruling, the complaint alleged that the District refused to permit the child’s service dog, who is trained as a seizure alert dog, in school unless the parent provided a separate, full-time, adult handler. Due to the student’s physical limitations, she required intermittent assistance in tethering and untethering the dog and with vocalizing a limited number of commands. While it appears that the District provided a 1:1 aide for the child, the aide was not authorized to assist with the service animal and was not provided for all school-related activities, such as on the bus.

The U.S. DOJ found that providing the requested assistance to the student “falls well within the range of support and assistance that school staff provides to young children day in and day out. Accordingly, the District must reasonably modify its current ‘hands off’ policy” with respect to the service dog. The full decision can be found here, and is an interesting and important read for all school districts and similarly situated entities governed by Title II of the ADA.


Leave a comment

U.S. Supreme Court Sets Forth Test for Evaluating Pregnancy Discrimination Claims

By Michelle High

The Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k), dictates that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same” as other employees who are “similar in their ability or inability to work.”  The Act has two sections.  The first section provides that employers can’t discriminate on the basis of pregnancy because it would be sex discrimination and the second section provides that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability to work.”  The second section of the law has been the source of repeated questions for employers and employees alike.

pregnancyIn Young v. United Parcel Service, Inc., a newly released 6-3 opinion, the U.S. Supreme Court has provided a test detailing when the Pregnancy Discrimination Act requires an employer that provides work accommodations to non-pregnant employees to extend such accommodations to pregnant employees who are similar in their ability or inability to work.

Peggy Young was a driver with UPS.  When she became pregnant, her obstetrician advised her not to lift more than 20 pounds.   Generally, UPS drivers were expected to carry packages of up to 70 pounds, but the company offered accommodations to those injured on the job; those with conditions recognized as Continue reading


Leave a comment

Court Holds That Requiring an Employee to Undergo Psyhological Counseling May Violate ADA

By Edwin S. Hopson

On August 22, 2012, the U.S. Court of Appeals for the Sixth Circuit in Kroll v. West Lake Ambulance Authority, ___ F.3d ___, Case No. 10-2348, held that requiring an employee to undergo psychological counseling may violate the Americans with Disabilities Act.

The ADA states:

“A covered entity shall not require a medical examinationand shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.”

The plaintiff had had an affair with a co-worker and after an incident related to that during with which it was reported that the plaintiff had been screaming into her phone while on an emergency run, her supervisor required her to undergo psychological counseling before returning to work.  She refused and never returned to work.  A suit was filed claiming, among other things, an ADA violation. The district court granted summary judgment dismissing the case and the former employee appealed.

The appellate court in reaching its decision relied heavily on EEOC guidance.  That guidance consists of seven factors:

(1) whether the test is administered by a health care professional;

(2) whether the test is interpreted by a health care professional;

(3) whether the test is designed to reveal an impairment or physical or

mental health;

(4) whether the test is invasive;

(5) whether the test measures an employee’s performance of a task or

measures his/her physiological responses to performing the task;

(6) whether the test normally is given in a medical setting; and,

(7) whether medical equipment is used.

The court found that factors one, two and three were present, and reversed and remanded the case to allow more development of a record as to the remaining factors.