How to Legally Question a Staffer’s Disability Accommodation Request

by Dan Wisniewski

What should you do if you doubt an employee’s need for a disability accommodation?

Disability: Even Rarely Performed Job Functions May Be “Essential” Under the ADA

Eric B. Meyer

You run a delivery service using large trucks and require that drivers be qualified by the Department of Transportation. Although your facility managers aren’t often behind the wheel of the big rigs, you nonetheless require that they too be DOT certified. … Continue Reading

Leave Administration: Cancer: When do the ADA and FMLA apply?

There probably isn’t one person in America whose life has not been touched by cancer, whether the individual has been diagnosed with some form of it or someone they love has been. Given this probability, employers across the country must be prepared for the day when cancer hits their workplace.

Thus, the U.S. Equal Employment Opportunity Com­­­­mis­­sion (EEOC) released a Q&A on cancer in the workplace and the Americans with Disabilities Act (ADA). But the ADA is not the only law you must consider. The Family and Medical Leave Act (FMLA) may also be a factor. It is up to you to determine which law applies and how to comply when they both do. … Continue Reading

Disability: A How-to Guide on Job Searching With a Disability

By Jada Graves

In the series premiere of Downton Abbey, the character John Bates arrives at the series’s eponymous home walking with a cane, and is introduced as Lord Grantham’s new valet.  The existing household staff express everything from confusion to awkwardness to dubiousness and even anger that someone with a physical disability could have been hired for such an esteemed position in a large aristocratic estate. At one point in the episode, Bates is temporarily dismissed when staff members manage to convince Lord Grantham that the valet is incapable of performing his duties properly. … Continue Reading

Disability Accommodation: Employer’s Reliance on 3rd Party to Determine Reasonable Accommodation May Lead to ADA Liability

By Maria Greco Danaher

The Sixth Circuit Court of Appeals recently addressed an issue of first impression, holding that the ability to hear is not necessarily an “essential function” of the job of lifeguard. Keith v. County of Oakland, No. 11-2276(6th Cir. January 10, 2013). In addition, the court made a number of other, more generally applicable observations. The most noteworthy is a statement that seems to create an obligation on the part of an employer to fully understand the background and experience of any expert who is relied upon to assist in determining whether a disabled individual can be accommodated in a particular position. … Continue Reading

Employment Lawsuits: Initial Discovery Protocols for Federal Employment Cases Tested in US District Courts

By Diane King

As of December 1, 2012, United States District Court Judge William Martinez has implemented the Initial Discovery Protocols for Employment Cases Alleging Adverse Action (“Protocols”). The Protocols are the product of a national committee of defense and plaintiff attorneys with the goal of creating pattern discovery for employment cases that would limit unnecessary cost and delay in the litigation process.

The Protocols would replace initial disclosures with initial discovery specific to employment cases alleging adverse action and provided automatically by both sides within 30 days of the defendant’s responsive pleading or motion. Although the Protocols would not affect parties’ subsequent right to discovery under F.R.C.P., they are meant to supersede the initial disclosures pursuant to F.R.C.P. 26(a)(1).

Instead of standard initial disclosures, the Protocols would require both plaintiff and defendant to provide discovery specific to employment cases. For example, the plaintiff will be required to produce any claims, lawsuits, administrative charges and complaints related to the factual allegations at issue in the lawsuit, as well as diaries, journals and calendar entries maintained by the plaintiff concerning the factual allegations of the suit. Conversely, the defendant will be required to produce all communications concerning the factual allegations of the claim, including those between the plaintiff and defendant, as well as between members of management and human resources. The defendant will also be required to produce the plaintiff’s personnel file, and any documentation of discipline.

To read more, click CBA CLE Legal Connection

Job Descriptions: Good Job Descriptions Make Good Hires (Part 1)

By Mary Wright

Most people view a job description as a list of duties that is hauled out of mothballs at the start of performance review season and used as a checklist for grading employee achievement against employer expectations.  Granted, a job description can serve that purpose.  Correctly drafted, however, a job description can be (as my son would say), “all that and a bag of chips.”  It is useful at every stage of employee management, and particularly in hiring an employee.  Indeed, I would go so far as to say, you can’t have a truly good hire without a good job description. … Continue Reading

ADA Quiz: Legal question or not?

[Editor's Note:  What to ask and how to ask it are hot topics in the human resources and recruiting industries.  The Business Management Daily says, "When judging the legality and validity of any question as it relates to disability issues, ask yourself:  Does the question focus on disability, or does it focus on the ability to perform the job?" -- Mary Wright, Editor]

Consider the following questions a manager might ask during the interview process. Answer yes to the questions the U.S. Equal Employment Opportunity Commission (EEOC) lists as legal under the Americans with Dis­­abili­ties Act (ADA); no to the ones that it deems unlawful. … Continue Reading

To Obtain Accommodation or Prevail on Disability Claim, Worker Must Articulate ADA Needs, Alterations

After you have implemented a reasonable accommodation for a disabled employee’s medical restrictions, it’s up to the employee to ask for any modifications that may be necessary. If he doesn’t, he can’t later allege that the accommodation didn’t work or wasn’t appropriate. … Continue Reading

Holiday Depression at Work: How Not to Let Holiday Blues Color Your Job

By Eve Tahmincioglu

Lisa S., an administrative assistant who suffers from depression, finds her feelings of sadness swell around the holidays, and her work suffers as a result.

“You just feel like work is mundane,” Lisa says. “It’s hard to focus.”

Even though her drug-resistant depression is more contained now that she uses an implant called a vagus nerve stimulation therapy, the holidays always set her back.

“I just miss my childhood Christmases,” she adds. … Continue Reading