Below is a review of the posts (on Facebook, LinkedIn, and Twitter) from the past week. You can check out the full posts by clicking on the links.
In the post on Sunday 8/25/19 we asked: Will cannabis use soon be the same as off-duty drinking by workers? (We also asked what about the fact that it is still illegal under federal law?) Are you familiar with the employee who has a drink or 2 at a bar with colleagues after work? What about one who has wine with dinner at home? Neither is impaired at work the next day, right? THC, the active ingredient in cannabis, acts differently, hanging around much longer. So what is an employer to do when in a state where marijuana use (medical or recreational) is legal, recognizing that it is still illegal on the federal level? The post provides some statistics on drug use – and some of it is not decreasing. How that is affecting the job market is also in the post. Some options for employers are also in the post.
TAKEAWAY: Pennsylvania has the dichotomy: legal medical marijuana use under state law, illegal under federal law. Employers should consult their employment lawyers to decide on a policy.
The post on Monday 8/26/19 told us the EEOC says manager violated ADA by chastising worker’s accommodation use. American Security Insurance Company is a subsidiary of Assurant, Inc. a global risk manager. Donna worked at American Security; how she performed her duties, with company approval, is in the post. But a manager “constantly chastised” her about it and took the other actions noted in the post. The EEOC filed suit on her behalf, alleging a violation of the ADA.
TAKEAWAY: There are many accommodations that might arise through the interactive accommodation process – managers need to know that employees are entitled to whatever accommodation is chosen, regardless of whether they like it or not.
The post on Tuesday 8/27/19 noted that an HUD consent order resolves assistance animal case with Association. This relates to a condo in NJ, but the same law (the FHA) applies in PA and every other state, so pay attention. As noted in the post, “the FHA requires most housing providers to allow individuals with disabilities … to have an assistance animal that performs tasks (a service animal) or that provides disability-related support (an emotional support animal).” The resident was treated differently than others without service or assistance animals as noted in the post. What the association had to do is in the post. A few pointers about how to deal with assistance animals are also in the post.
TAKEAWAY: Whether you live in a community association or manage one, you need to know the rules and laws relative to service and assistance animals. Consult an attorney well-versed in community association law.
The post on Wednesday 8/28/19 taught us that a failure to date memos does not defeat summary judgment (even though this is not a suggested way to proceed). Timing is almost always important when dealing with alleged discrimination in employment, especially if it goes to intent. Here, the plaintiff alleged that she was terminated after refusing to sign something supporting the employer’s position in a retaliation claim by a co-worker, What the employer did is in the post. And when that wasn’t enough, the employer’s testimony, in the post, attempted to fill the void. The trial court ruled for the employer and the plaintiff appealed, alleging a timing error (noted in the post). How and why the appellate court affirmed the decision in favor of the employer are also in the post.
TAKEAWAY: Make sure your ducks – or, writings and other evidence, as the case may be – are lined up and in order in case you need them.
In the post on Thursday 8/29/19 we saw that ADA litigation lessons surfaced from a Zamboni machine. Really. Read on and it will all tie in together. So you are familiar with, or have heard of, employers who let an employee who is not performing stay much longer than should happen, without having any documentation, and possibly after an injury with a comp claim and medical restrictions, the person is then discharged. Of course that person could not have been the problem right? So s/he sues … Let’s look at the case in the post. Graham was a Zamboni operator. How he behaved is in the post, but of course the employer did not write him up. He got injured after only a short time on the job. How the employer handled his return with restrictions is in the post. After a while the job changed as noted in the post. When he crashed the Zamboni, causing damage noted in the post, he was fired (for the reasons listed in the post). He sued for discrimination under the ADA. The trial court ruled for the employer he appealed. The appellate court affirmed. It analyzed the failure to accommodate claim – see the post. The court also analyzed the pretext argument (in the post) and ruled against Graham. Even when looking at comparators, the court found against Graham – again see the post.
TAKEAWAY: Yes, employers CAN still discharge employees, even those with medical restrictions or conditions, as long as they follow proper procedures under the ADA and look at the facts. Consulting an employment lawyer doesn’t hurt either.
The post on Friday 8/30/19 showed us that an employer’s additional notice requirement for requesting FMLA leave dooms attempt to dismiss interference claims. We all know that employees on FMLA leave cannot be treated differently than other employees, right? Well, one employer obviously did not know that. In the post, the employee alerted managers to her need for leave to care for a hospitalized parent. They still scheduled her for work and warned her when she was absent. At one point, she learned about the FLA and requested leave under the FMLA. What the employer’s policy required is in the post. Eventually she was fired when she took off more time. She alleged FMLA interference and retaliation; the employer’s defense is noted in the post. The court ruled in her favor on the bases in the post.
TAKEAWAY: It all comes back to treating employees on FMLA leave the same as other types of leave. Check with an employment lawyer if you are unsure.
Finally, in the post yesterday 8/31/19 we learned that an employer’s good deed goes unpunished – reliable attendance is an essential functions despite prior accommodation of absences. Are you an employer who tries to really help your employees? Or an employee whose company tries to be helpful? That’s great – but is not the end answer to everything. Here, Higgins was a locomotive engineer beginning in 1976. He suffered a spine injury which led to chronic back pain. In 1992, he signed off on an agreement with the employer relative to that injury – see the post. After that, for well over 10 years, he missed a lot of time due to the back pain. The employer correspondence with him many times about his attendance. It continued. In 2014 a doctor weighed in and the employer responded. See the post. Higgins then sued. Why the appellate court ruled in favor of the company is in the post, along with its analysis. A common-sense approach. The court also dealt with the employer’s long years of accommodation – see the post.
TAKEAWAY: It is important to know the essential functions of a job – and enforce them while trying to accommodate an employee.
York, Pennsylvania 17403