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. NOTE that we did try to escape COVID a bit this week (as there is a world outside of or other than COVID).
In the post on Sunday 11/15/20, we learned how to (legally) fire long-term employees. During this pandemic or otherwise, it is sometimes necessary to discharge a long-time employee. Know how to do it, and what (not) to say, is important. First, ensure that all employees are treated equally. If the discharge is performance-based, make sure you can document the performance issues, including the things noted in the post. This is especially important to avoid liability under the ADEA. Also make sure to see if there is an employment agreement in place and, if so, what actions must be taken prior to discharge. Be aware of the types of things mentioned in the post. Then make sure to pay the employee what s/he is due and within the applicable period of time. What is due may go beyond wages – see the post. You may also wish to consider a severance package – this involves a legal document so it is best to consult with your company’s employment lawyer. Some things that might be included in a severance package are noted in the post. A severance package can be helpful to both the employee being discharged and the employer; how that is possible is also in the post. Finally, when notifying the employee of the discharge, what do you say? Examples are in the post.
TAKEAWAY: Employees who have been discharged may become disgruntled and want a scapegoat; that often ends up being the company at the other end of a charge or lawsuit. Do it right.
The post on Monday 11/16/20 showed us that a nurse settled an unlawful termination suit against a PA center for $60,000. Nichole Stahl brought suit against Susque View Home Nursing and Rehabilitation Center in Clinton County, alleging pregnancy discrimination and violation of the FMLA. Stahl was hired as an LPN in 2011 and in mid-August 2016 asked for intermittent FMLA leave due to pregnancy. There was then a back-and-forth between her and the employer as to FMLA leave and the reasons for it – see the post for details. Eventually she was fired. The employer responded to the suit by claiming she exceeded her allotted FMLA leave time and that she was treated the same as non-pregnant employees. So why did the parties settle? See the post.
TAKEAWAY: Before taking adverse action against an employee, it is a good idea to consult employment counsel to shore up support and defense in case of suit.
The post on Tuesday 11/17/20 went to the dogs: it was about animal accommodation law and a recent case roundup. Yes, your association may indeed need to make accommodation for one or more animals (not just dogs) under the Fair Housing Act (FHA) or other applicable law. The post told us about some recent cases in the hope that we might learn form them. First, in June 2020, post-approval a housing provider with a dog allergy rescinded a lease offer to someone who requested an accommodation for an assistance animal. The housing provider did not live there, did not evaluate the risk of injury, rejected the applicants offer as noted in the post, and did not suggest alternative accommodations All of that ran afoul of what must happen when an accommodation request is made (as noted in the post). July 2020 brought a case wherein a current tenant requested an accommodation for an assistance animal, but the housing provider then embarked on what was deemed an overly burdensome process. Why it was called that – and how to remedy it – is noted in the post. In August 2020, there was a case of a condo association that prohibited dogs refusing to accommodate a request for a service dog, even after receiving the medical documentation noted in the post. This directly implicated the FHA, even with the narrow process relative to service animals. The post has the details. We also have cases from September and October 2020 in the post. October was interesting and a twist from what is usually seen, so make sure you read the post.
TAKEAWAY: As we said in the post, know what applies to your homeowners’ or condo association and consult a good community association lawyer.
The post on Wednesday 11/18/20 was about an ADA claim failing when employee accepts lateral transfer. The ADA has always made for interesting requests for accommodation, but never more so than with the current COVID overlay. Here, Laird was a county employee with MS. She could not perform the essential functions of her job. She asked for accommodation, the employer engaged in the interactive process, and they resolved it by the employer creating a new position that allowed her to work from home. NOTE: employers need not create new positions to accommodate under the ADA, but here it did. Despite that action, Laird later sued, alleging disability discrimination, failure to accommodate, and retaliation (plus other claims). The bases for her claims are in the post. The court analyzed the claims and the employer’s obligations under the ADA, along with the specific facts of the case (see the post for all of that). The court eventually ruled in favor of the employer on all counts on the basis noted in the post. So how does this case impact us in the COVID environment? There might be more, or different, requests for accommodation in light of COVID and an employer must know what to do and how to respond. Basic guidelines are in the post, but an employment lawyer can provide assistance for each specific instance.
TAKEAWAY: Know each party’s rights and obligations as part of the reasonable accommodation process (and if you are unsure, consult and employment lawyer). There are no do-overs.
In the post on Thursday 11/19/20 we saw that Disney won in a pregnancy discrimination complaint … because spouses are not protected by law. Steve worked for Disney Streaming Service from August 2016 to May 2019. He filed suit in November 2019, alleging that Disney ignored his complaints to HR about harassment and then terminated him without cause after he took a 2-week paternity leave. What the complaints were about is in the post. Disney moved to dismiss the complaint; the post tells us why. The judge agreed with Disney.
TAKEAWAY: There are a lot of laws out there; some are general in their applicability, but others are limited to a certain class of people. Know which is true in any given situation.
The post on Friday 11/20/20 asked: Is your website at risk for an ADA accessibility suit? It has been statistically shown that most suits over compliance with the accessibility portions of the ADA are filed against small and medium-size businesses. So, who should be concerned? Well, everyone really, but mostly those with brick-and-mortar (physical) locations that invite in the public. Websites for those with physical locations also come under the ADA ambit. Whether websites of businesses without physical locations are included is still being fought out in various courts, (see the post), but the safest way to proceed is to comply. Some examples of suits that have bene brought relative to website accessibility are in the post; they cover various industries (and you might be surprised by some of them). Even some big players got sued, including Charles Schwab, Bank of America, H&R Block, and the others listed in the post. IN the restaurant sector, Five Guys, Dominos and Dunkin’ Donuts are joined by many smaller mom and pop places as being defendants in suits. Use the examples in the post to ensure that your website complies.
TAKEAWAY: Don’t wait for a court to tell you that your website must comply with the ADA’s accessibility provisions but does not. Go to the site linked in the post and correct any issues before suit.
Finally, in the post yesterday 11/21/20 we learned that a man and daughter filed an ADA complaint against Freeman Health System. It was the reasons for the suit and against whom it was filed that are both surprising. Shannon has her father Bob’s medical POA. He entered the hospital for surgery in August; she went from Idaho to Missouri to be with him. She brought a service dog with her. Shannon was not allowed to see Bob in his room after surgery as she had been asked to leave the facility. There ahs been no issues prior to surgery (see the post), but then she went to wait for Bob to come out of surgery. The conversation that ensued is noted in the post. There are areas where service dogs are or are not allowed as noted I the post, but Shannon says that was not an issue here. The hospital says only that it is investigating the complaint.
TAKEAWAY: While there are some limitations (with a link in the post), service dogs are permitted almost everywhere as an accommodation to the disabled person with whom they work. Know the law.