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ADA

Document your concern about employee before ordering a fitness-for-duty exam

12/17/2009

The ADA prohibits employers from demanding fitness-for-duty exams unless the exams are “job related and consistent with business necessity.” Employers can demand an exam if they have a reasonable belief that an employee’s medical condition will impair his or her ability to perform essential job functions or will pose a safety threat. If you believe either is the case, document your objective and reasonable beliefs before demanding the exam.

Remind supervisors: Don’t assume disability

12/11/2009

An employer that assumes an employee is disabled and then fires him or even just treats him differently than other employees may end up with an ADA lawsuit. That’s because the employee may not actually be disabled—but can still sue for disability discrimination based on the employer’s presumption that he is.

Make sure attorney coordinates your response to disability retirement claim and ADA defense

12/11/2009

Employees who manage to win both disability retirement benefits and an ADA case get the best of all possible worlds—a regular retirement check, plus a lump-sum jury award for their employer’s failure to accommodate their disability. Employees can pursue both claims if they can show that, with an accommodation, they could have performed their jobs. But if it’s very clear from their testimony in the disability retirement case that they couldn’t possibly perform their jobs under any circumstances, then their ADA cases will be dismissed.

Insist on attendance for all—disabled or not

12/09/2009

Under the terms of the ADA, disabled employees have job protection—if they are able to perform the essential functions of their jobs, with or without accommodations. But those accommodations have to be reasonable. If you consider attendance an essential job function, courts probably won’t compel you to allow disabled employees to miss unreasonable amounts of work.

Misconceptions about disabled employee’s medical condition can spell ADA trouble

12/09/2009

Many medical conditions aren’t disabling, so they don’t qualify for protection under the ADA. That’s because they don’t actually impair a major life activity like walking, breathing, taking care of oneself or working. But sometimes employers mistakenly believe that a medical condition is disabling when it’s not. If they express those beliefs, they may make themselves vulnerable to a “regarded as disabled” lawsuit.

Hobby Lobby to pay for asking disabled worker to climb ladder

12/09/2009

A nationwide hobby and gift store chain will pay $35,000 into a supplemental needs trust account for Julie Tufts, a former employee of the Hobby Lobby store in Rochester.

During the hiring process, when is it OK to ask about disabilities?

12/09/2009

Q. Are there any circumstances where an employer can justify considering a prospective employee’s disability in making hiring decisions?

Cleared to work with no restrictions? Don’t assume employee isn’t disabled

12/08/2009

It makes sense that if an employee’s doctor releases him to return to work with no restrictions, the employee can’t be disabled. Don’t make that dangerous assumption! The ADA covers employees when their claimed disability affects a major life function—and that function can be one that’s not an immediately obvious factor at work.

Now that the ADAAA is law, is smoking a protected disability?

12/08/2009

Twenty-nine states and the District of Columbia have so-called “smoker protection” laws—laws that elevate smokers to a protected class and make it illegal to discriminate against employees because they smoke. Before the ADA Amendments Act (ADAAA) became effective on Jan. 1, 2009, I was optimistic that these smoke-outs were legal. Now , however, I have reservations. Has the ADAAA created a new protected class for smokers?

Could smoking be an ADA-protected disability?

12/08/2009

The recently enacted ADA Amendments Act was passed to make it “much easier for individuals seeking the law’s protection to demonstrate that they meet the definition of ‘disability.’ …” It does that by expanding the definition of the term “disability.” In fact, the definition of “disability” may now be so broad that it covers conditions such as nicotine addiction.