Spying on your sick employees is a recipe for disaster

Do you remember the episode of The Office where Dwight stakes out Oscar's house to see if he's faking a medical condition and committing insurance fraud?

Believe it or not, something similar is happening in real life at Tesla. The managing director and human resources director of one of its foreign gigafactories recently targeted 30 employees on sick leave for home visits. While the HR director claims the visits had "nothing to do with general suspicion," the managing director has a documented history of intolerance toward factory workers who "couldn't get out of bed."

Needless to say, the employees did not appreciate the visits. "You could just tell by the aggression," the HR director said. Employees slammed doors, threatened to call the police, and questioned why the visits weren't scheduled in advance.

"100% healed" = 100% illegal

The EEOC has sued Navitas Systems for its "100% healed" return to work policy.

The case involves the company's former division controller, who suffered a severe rotator cuff injury and fractured wrist. His doctor cleared him to return to work with restrictions, limiting the use of his injured left arm. Confident that he could still handle all the essential functions of his job with his right arm, he asked to come back to work, despite Navitas's policy. The company, however denied his request and fired him.

"Policies that require an employee to be restriction-free before returning to work run afoul of the ADA," said Miles Uhlar, the local EEOC trial attorney handling the case. "This employee could have performed the essential functions of his position. By strictly applying its '100% release' policy, Navitas violated the ADA."

Meteorologist fired for 'sharing recovery journey publicly' raises issues of disability discrimination

"Thank you for going on this journey with me despite the yucky medical stuff I have going on. I'm happy to announce I am 9 months sober!"

That's what local television meteorologist and personality Hollie Strano wrote on her personal Instagram last month. Eleven days later, her employer, WKYC/Tegna, fired her. (The "yucky medical stuff" she referred to is ovarian cancer.)

"I believe the actions of WKYC and Tegna demonstrate the stigma surrounding addiction that so many in our community experience every day," Strano shared after her termination.

I believe this goes beyond stigma; it looks like disability discrimination.

The interactive process is a two-way street

The interactive process for disability reasonable accommodations is a two-way street, requiring participation from both the employer and the employee. If either party fails to participate or withdraws from the process, that party will likely lose in a subsequent ADA failure-to-accommodate lawsuit.

A recent case, Wilson v. Dept. of Mental Health & Addiction Services, decided by the 6th Circuit, serves as an example.

Temporary impairments as ADA disabilities

Does recovery following surgery qualify as a "disability" under the ADA? Well, it depends.

Consider, for example, the recent court of appeals decision in Long v. KeltanBW. Long worked as a floating teacher in a daycare center owned and operated by KeltanBW. Less than one month after starting her job, Long took time off for liposuction surgery. Upon her return to work eight weeks later, the employer assigned her to the preschool rooms to accommodate her temporary post-surgery lifting restrictions. Within a couple of months, however, KeltanBW fired her for poor attendance. 

Long sued, claiming disability discrimination.

Call me … maybe? 6th Circuit saves FMLA claim of employee who failed to follow employer's call-in rules.

Latrice Crispell, a 23-year employee of FCA working as a floater on its truck assembly line, suffered from major depression and anxiety, which qualified her for intermittent leave under the FMLA. FCA had a strict 30-minute call-in rule, requiring employees to notify their supervisors of any absence at least 30 minutes before their shift, or later with a statement explaining the missed call-in.

Crispell struggled to comply with that rule during severe flare-ups of her condition, which she argued made it impossible for her to call in on time and made her absent or late 15 times during the final three months of her employment. Despite submitting explanations and a doctor's note about how her illness made it impossible for her to comply with the 30-minute rule during flare-ups, FCA disciplined and ultimately terminated her.

Despite the employee failing to meet FCA's call-in requirements for her intermittent leave, the 6th Circuit reversed the trial court's grant of summary judgment to the employer. 

A ruff reasonable accommodation claim

Samantha Howard worked as a pharmacist for Boswell Regional Health Center. She suffers from Type I diabetes along with hypoglycemic unawareness, which prevents her from knowing when her blood sugar dangerously drops. To help manager her blood sugar, she requested a diabetic-alert service dog as a reasonable accommodation. The employer, however, denied the request because of hygiene concerns and risk of contamination to sterile work areas.

The 8th Cir. Court of Appeals heldheld that the employer had lawfully denied Howard's accommodation request for two key reasons: (1) she had performed her essential job functions for more than a year, and therefore the accommodation was not necessary; and (2) the employer had valid and legitimate concerns about contamination and risks to the sterility of the work environment.

Context, not "magic words," is what matters in judging reasonable accommodation requests, 6th Circuit says

"I'm struggling and need some time to get back to normal. Working 53 hours my first week back is hard for me physically."

That's what Mary Ellen Yannick, a bakery department manager at Kroger's, told Marli Schnepp, her store manager, within a week of Yannick's return from a four-month leave of absence following breast-cancer surgery.

In response, and instead of discussing with Yannick a reasonable accommodation, Schnepp told her that "business was business." If she couldn't hack it, Schnepp told her, she'd have to step down. That's exactly what Yannick did, transferring to a lesser position at another store. She also sued.

For Ohio employers, it doesn't matter what the DEA says about marijuana

News recently broke that the DEA intends to reclassify cannabis from a Scheule I drug to a Schedule III drug. That reclassification would permit health care providers to legally prescribe cannabis for medicinal uses.

As a result of this reclassification, employers would likely inherit a legal obligation under the ADA to reasonably accommodate an employee's use of legally prescribed marijuana. It would no different that the use of any other Schedule III drug (e.g., ketamine or codeine) — you have to accommodate its use off duty but not employees' impairments on duty.

BUT … check your state law. 

Remote work as a reasonable accommodation

A former UCLA employee has sued the university, claiming that if fired him in retaliation for requesting to continue to work from home after its "work from home" order ended.

According to his complaint, the 23-year employee, who last worked as a mechanic in the physical sciences machine shop, suffers from disabilities that affect his arms and hands. The lawsuit alleges that his supervisor denied his request to continue working from home after Covid work from home orders ended, despite most other employees continuing to work remotely. After the university later laid him off, he sued.

Courts are generally in agreement on two things related to remote work as a reasonable accommodation: 1) regular, in-person work is an essential function of most jobs; and 2) remote work as a reasonable accommodation is a highly fact-specific inquiry.

Workplace harassment and employee assistance programs

Is it legal under the ADA to mandate that an employee accused of sexual harassment use the company's employee assistance program? That's the question being asked in a lawsuit the EEOC just filed against Weis Markets.

Failure to advise employer of a disability dooms employee’s ADA claim

True or false — An employer must always reasonably accommodate an employee’s disability if necessary to permit the employee to perform the essential functions of the job unless it causes an undue hardship on the employer?

Answer — False. An employer does not have an obligation to grant a reasonable accommodation that an employee never requests.

Case in point: Mueck v. La Grange Acquisitions.

Can you hear me now?! Jury awards deaf truck driver $36M in disability discrimination lawsuit

$36 million is a number large enough to get anyone's attention. It certainly got the attention of Drivers Management, LLC and Werner Enterprises, Inc., after a federal jury awarded the EEOC that amount in a disability discrimination lawsuit it filed on behalf of Victor Robinson, a deaf truck driver, denied employment because of his disability.

A disabled employee is entitled to a “reasonable” accommodation, not a “preferred” accommodation

Jay Hannah worked as a package delivery driver for UPS. He developed hip bursitis, which caused pain in his lower back, hip, and buttocks. As a result, he requested two alternative reasonable accommodations: either that UPS allow him to drive his route with a smaller truck with softer suspension or that UPS reassign him to a non-driving inside job. 

UPS denied both requests. It determined that the specific needs of Hannah's route required a larger truck, and that the smaller van had an insufficient capacity to service his route. Other possible alternatives that could have permitted Hannah to use a smaller truck — giving a part of his route to another driver or completing the route himself in multiple trips — were not feasible as each would violate the governing collective bargaining agreement. Further, there were no openings for inside work at the time. UPS advised Hannah that it would consider him for any openings as they arose.

While UPS denied Hannah the particular accommodations he requested, it did allow him to retain his job and take a leave of absence without pay until he could return to work. And after several months, Hannah did return to work and thereafter continued to drive the route to which he was assigned in a truck suited for that route.

“Geographical discrimination” is NOT a thing

"If you don’t relocate and return to in-person work, we’re going to have to let you go." Many employers are having this very conversation with their remote employees. Some employees who want to continue working remotely are starting to push back.

According to a recent report, employees are considering suing their employers for geographical discrimination. 

Workers who moved to another city, state, or even country from their employer's main office during the pandemic are claiming that they're being discriminated against geographically by being forced to return to in-person work.

Wal-Mart (allegedly) did a 💩 job of accommodating this employee

Why can't some employers understand the interactive process and make accommodations that are simple and easy to make? I wish I knew the answer. After reading the facts of a lawsuit the EEOC just filed against Walmart, I know that Wal-Mart doesn't know the answer.

The EEOC claims that Walmart violated the ADA by refusing to provide a reasonable accommodation to a deli associate suffering from Crohn's disease.

EEOC lawsuit highlights risks associated with not accommodating service animals

The EEOC has filed a disability discrimination lawsuit against Papa John's Pizza claiming that it denied the request of Michael Barnes, who is blind, to bring his service dog — Indie, a black lab — with him to work. After denying his request, the agency alleges, the pizza company fired Barnes. 

This seems like an easy accommodation request to get right, and yet so many employers get it wrong. Here's a handy Q&A for your next service animal accommodation request in your workplace.

Someone needs to take away Elon Musk’s twitter access

The reality is that this guy (who is independently wealthy) did no actual work, claimed as his excuse that he had a disability that prevented him from typing, yet was simultaneously tweeting up a storm.

That was Elon Musk's very public, and very offensive, tweet to a former Twitter employee who had asked whether the company still employed him, as his network access had been inactive for nine days and no one from HR could confirm his employment status.

Post-termination diagnosis is insufficient to support ADA claim

Haley Hrdlicka, a 30-year General Motors employee, began having attendance problems after transferring to its Design Academy. Serious attendance problems. Dozens of absences in the four-month period from May – August 2019. A less-than-glowing performance review followed by an "Attendance Letter" (essentially a final written warning) did nothing to improve her attendance. So GM fired her. 

She unsuccessfully appealed her termination through GM's internal grievance process. During that process Hrdlicka was diagnosed with Persistent Depressive Disorder and a brain tumor. She then sued GM for disability discrimination stemming from the after-the-fact diagnosis.

Offensive social media posts doom airline employee’s discrimination claim

"If I were Black in America, I think I'd get down on my knees every day and thank my lucky stars that my ancestors were brought over here as slaves."

"Have you lost your cotton pickin' mind?"

"Too many [blue-eyed people] are reproducing with Brown Eyed People."

Those are three examples of Colleen Koslosky's (a former American Airlines customer service agent) Facebook posts that went viral and caused her employer to fire her.

She claimed the airline fired her because of her disability — nerve damage and edema in her leg — based on its prior denial of a reasonable accommodation. The employer, on the other hand, argued that it properly fired her after Koslosky's posts went viral, customers complained, and employees refused to work with someone they believed was "racist." 

The 3rd Circuit Court of Appeals had little difficultly affirming the dismissal of Koslosky's lawsuit.

She … claims that a male American customer service employee who was not disciplined for his social media posts disparaging Trump voters — calling them "ignorant rednecks" and "uneducated racist white people." Koslosky does not argue American management knew about her colleague's inflammatory social media posts. This is dispositive. …

As Koslosky points to no evidence of pretext, we are thus left with one conclusion: American fired her because her racially insensitive social media posts violated its policies and generated an outcry from employees and customers alike. Because this is a legitimate justification for her ouster, we are not persuaded that the company violated any law here.

This employee had no business keeping her job or winning a discrimination lawsuit. Employees are absolutely responsible for what the post on their personal social media, and need to understand that their employer can, should, and will hold them accountable when warranted. In this case, it was warranted.