The facts:

An employee who was being treated for cancer suffered from dry mouth and throat as a side effect of the treatment, and had to consume large amounts of water throughout the day to combat the side effect.

As a result, she asked for two disability accommodations:

• Relaxing of a rule that prohibited drinks of any kind at workstations.
• Permission to leave the workstation often, and without asking, because of a frequent need to use the restroom.

She was granted both accommodations, and worked under those conditions for several months without incident except for one time:  A substitute boss who hadn’t been informed of the employee’s condition refused to all the employee to leave the workstation during an especially busy period. The employee wet her pants.

The employee sued for denial of a disability accommodation.

The employee said:
The temporary supervisor’s blunder caused extreme embarrassment, besides being an illegal breach of the agreement to grant her the accommodation.

The employer said:
The employee had worked under the accommodation conditions for several months without a hitch — in that the regular supervisor had never once denied the employee the accommodation. The incident in question was a simple mistake in communication, in that the temp supervisor wasn’t aware of the accommodation, and would have granted it had he been aware. Further, the employer maintained, the employee should have informed the boss of the accommodation or should have just left the workstation to use the restroom.

Who won the case?

Answer: The employee, who received $200,000 in damages from the employer.

Why: The court rejected the employer’s argument on two counts –

• The employee was under no obligation to inform the boss of the accommodation. The legal language for such an event is called continuing the “interactive process” — the back and forth between employee and supervisor to arrive at a reasonable accommodation. The court said the employee had already engaged in the interactive process and was under no obligation to continue it with another supervisor once the accommodation had been granted.
• Even a single incident of failure to accommodate can have more-than-trivial consequences. An employer must be vigilant about maintaining the accommodation at all times. In short, someone should have informed the temp supervisor about the situation.

Cite: A.M v. Albertsons LLC.

A truck driver applied for a job with a transportation company. During the interview, the hiring manager noticed the applicant had a prosthetic leg. Believing he couldn’t drive a truck safely, the managers didn’t offer him the job.

But despite his impairment, the applicant had a commercial driver’s license from the Department of Transportation, as well as several years of experience as a truck driver.

He sued, claiming disability discrimination.

The company tried to fight the claim but was unsuccessful and ended up settling for $56,500.

The lesson for managers: Don’t make assumptions about disabled applicants. You’re allowed to find out if someone can safely do the job — you don’t need to resort to discrimination.

Cite: EEOC v. KLLM Transport, Inc.

The scene:

“You know demoting Marty is going to present a little problem, right?” HR manager Diane Corsey said.

“You mean because of his cerebral palsy?” Darlene asked.

“I’m not saying you can’t or shouldn’t demote him,” Diane noted. “I just want to be sure it’s not because of his disability.”

“This is not about his disability,” Darlene affirmed. “It’s about his performance. It takes him forever to get anything done. He’s had warnings, and there’s been no improvement. In fact, it it wasn’t for his disability, I’d probably recommend firing him.”

“Have you talked to him about any accommodations we might make that would make the job a little easier for him?” Diane asked.

“No, because he hasn’t asked about accommodations,” Darlene said. “We talked about this when we hired him – that the law didn’t obligate us to offer him help if he didn’t ask for it. He’s pretty stubborn about being independent, you know.”

First move
“I know,” Diane agreed. “Still, I wonder whether we should make the first move on that.”

Darlene went through with the demotion, and Marty ended up quitting – and suing for disability discrimination. The company said Marty never asked for an accommodation, so the supervisor had gone by the book.

Did the company win? (Answer below.)

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Answer:

No, the company lost.

The HR manager and the supervisor had interpreted the law almost perfectly, the judge noted in the decision. Almost.

The Americans with Disabilities Act does state that in most cases, the employee is required to request a disability accommodation from the employer.

This was the exception, however.

When an employee’s disability is so obvious and the employee’s performance is below standards, the responsibility falls on the supervisor to approach the employee and suggest an accommodation for the disability.

Of course, the employee isn’t required to accept an accommodation, and in that instance the matter is closed. But for obvious disabilities, the supervisor must make the first move and ask.

Don’t ignore the obvious
The lesson here is that you just can’t ignore the obvious.

Being aware of the problem, the supervisor could have approached the employee and made a suggestion, especially because the employee was struggling with performance.

Broaching a subject like that can be difficult, but if you keep it performance-related, you’re on safe legal ground.

[Based on: Brady v. Wal-Mart Stores, Inc.]

More evidence that it pays to emphasize weight loss in your wellness programs:

In two separate cases, courts ruled that workers’ comp must cover weight-loss surgery.

Surgery to ease back pain

The first case involved Adam Childers. While working at Boston’s Gourmet Pizza in Indiana, Childers was struck by a freezer door, injuring his lower back. At the time, Childers weighed 340 pounds.

Doctors said Childers needed surgery to ease his back pain, but that the operation would do him no good unless he first had surgery to reduce his weight, which had ballooned to 380 pounds after the accident.

Childers’ employer agreed to pay for the back surgery, and later a workers’ comp panel said it’d also have to pay $20,000 to $25,000 for his weight-loss surgery (plus disability payments while he was unable to work). His employer appealed, arguing that Childers suffered from a pre-existing health condition — morbid obesity.

However, the court said the restaurant couldn’t prove that Childers’ weight had been a medical problem before the accident. Case closed, he gets the surgery paid for by comp.

Surgery to help arthritic knee

In the second case, Edward Sprague injured his knee in 1976 while working as a mechanic. He then reinjured it in 1999 while working at United States Bakery in Oregon.

During those 23 years, Sprague’s weight climbed from 225 to 350 pounds.

Doctors told Sprague his weight would prevent successful treatment of his arthritic knee condition, so he sought workers’ comp benefits for weight-loss surgery.

A state court ruled Sprague’s bypass surgery should be covered by workers’ comp because the operation was necessary to treat an on-the-job injury.

What can you do?

Most people gain weight as they age — and studies show that heavier employees are at much greater risk for on-the-job injuries.

That’s why companies of all stripes have found wellness programs to more than pay for themselves by preventing injuries and other medical claims.

Group weight-loss initiatives help by making the process fun and competitive. So does replacing high-calorie snacks in vending machines with healthier — but popular — choices.

Answer: The Fifth, Sixth, and Seventh Circuit Courts of Appeals have held that the ADAAA does not apply retroactively. In general, the federal courts have determined that Congress indicated no intent that ADAAA cases in effect at the signing date would be covered by the new law.

That, of course, is good news for employers and HR managers. The ADA amendments mostly make it easier for employees to win accommodations and put a greater burden on employers to offer accommodations. Specifically, the new law says employers will have to:

• make accommodations and treat as disabled any applicant or employee who qualifies as such, without regard to mitigating measures. Previously, the Supreme Court had ruled that mitigating measures such as medications or prosthetics would take the employee out of the official category of “disabled” and exempt the employer from offering workplace accommodations.
• take into account a broader range of activities, or “functions,” that are considered when classifying a worker as disabled: performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working. None of those appeared in the pre-Jan. 1, 2009, ADA regs.

The Equal Employment Opportunity Commission offers guidance on the ADA amendment in the form of a new publication, “The Americans with Disabilities Act: Applying Performance and Conduct Standards to Employees with Disabilities.”

Question:
Does attention deficit disorder (ADD) qualify as a disability?  If so, how far does a company have to go to accommodate someone with ADD?

Answer: 
Each case has to be considered separately, says employment attorney Jonathan Segal, but ADD is often regarded as  a disability.

Two questions to ask an employee with ADD (after,
of course, getting medical documentation of the condition):

1. What can’t you do?
2. What do you want us to do to accommodate you?

Employers don’t have to change job requirements and standards to accommodate a disability. So if the person says he or she can’t meet deadlines because of the condition, and meeting deadlines is part of the job, that could be grounds for termination. But if the employee says, “I can do the job (and meet deadlines) but I need a quieter workspace, a different computer, etc.,” the company must decide if such steps would be reasonable.

Depending on your point of view, Molski is either (a) a hero for the disabled or (b) a scam artist who’s figured out — to near perfection — how to game the Americans with Disabilities Act.

Molski was injured in a motorcycle accident nearly 20 years ago and is confined to a wheel chair. Apparently, that’s no impediment to his making frequent trips to California courtrooms to file lawsuits — about 400 of them, according to the Los Angeles Times – against businesses that don’t follow disability-access regulations to the “T.”

The fines for such violations can run as high as $4,000 a day. So, the owners are faced with three possibilites:

1. Pay the fines.
2. Pay for the renovations to get up to code on disability access.
3. Settle out of court by paying Molski.

Court records show that most owners choose #3, providing the 38-year-old Molski with cash settlements estimated in the hundreds of thousands of dollars.

But all that may be coming to an end.

One federal judge has barred Molski for filing any more lawsuits in the Central District of California. And the U.S. Supreme Court recently denied Molski’s appeal to hear his ADA suit against a Chinese restaurant in Solvang, CA. Molski had taken that case to the High Court after a lower court refused to consider the case.

All we can say is that the Supreme Court building better be up to snuff on disability access or someone there might expect to hear from Molski’s lawyer.

The case — Kellogg v. Energy Safety Servs. Inc. — concluded last month after a round of appeals over whether an employee with epilepsy who was barred from operating a motor vehicle could then demand disability accommodations from an employer.

A federal court handed down a firm “no” on the question.

Safety issues
The employee, who as part of her job had to drive to various locales, asked to be relieved of the driving duties after she suffered seizures and was diagnosed with epilepsy. The company argued that any other job for which she qualified had safety requirements the employee couldn’t meet. She eventually was let go by the employer, and then sued for violation of the ADA, saying that the driving restriction proved she met the requirements for a disability accommodation.

The federal court, citing the wording in the ADA regs, which don’t list “driving” as a major life activity, disagreed and found in favor of the employer.

Will the new amendments to the ADA change that? No one’s really sure. Here’s a legal summary of what the staff at one law firm thinks.

The U.S. House already has passed the measure by a 402-17 vote, and President Bush has announced his support for the bill.

Among the key components of the legislation:

• Clarified definition of “disability.” The legislation would clarify the current requirement that an impairment must substantially limit a major life activity in order to be considered a disability.  The amendment adds that the disability “materially restricts” the person – although the legislation doesn’t define “materially restricts.”
• Exclusion of consideration of mitigating measures. The legislation would prohibit consideration of mitigating measures in determining whether an individual has a disability. For instance, a person with a hearing disability would still be considered disabled even if he or she used hearing aids to substantially lessen the disability. The only exceptions to the exclusion would be ordinary eyeglasses and contact lenses.
• Expanded definition of “regarded as” disabled. The legislation would provide that an individual is “regarded as” having a disability if the employee establishes that he or she has been discriminated against because of an actual or perceived physical or mental impairment.  The “regarded as” component wouldn’t apply to transitory and minor impairments where the impairment is expected to last less than six months.
• Same burden-of-proof requirement. After consideration, legislators let stand the requirement that the employee would continue to bear the burden of proving that he or she is a qualified individual with a disability.

If passed as expected, the legislation would go into effect Jan. 1.

Click here to see the full text of the legislation, H.R. 3195.

To every HR manager’s relief, the short answer is no. You don’t have to excuse or accept abusive behavior even employees have valid mental or emotional disabilities, such as a psychiatric condition that lead to such behavior.

What EEOC says

Let’s look at what the Equal Employment Opportunity Commission says in its own handbook about accommodating violence or abusive behavior:

An employer never has to excuse a violation of a uniformly applied conduct rule that is job-related and consistent with business necessity. This means, for example, that an employer never has to tolerate or excuse violence, threats of violence, stealing, or destruction of property. An employer may discipline an employee with a disability for engaging in such misconduct if it would impose the same discipline on an employee without a disability.

In other words, as long as you’re consistent about how you discipline all employees for violent or abusive behavior, you’re probably in the clear. So, for instance, if your policy is to terminate after a first offense of violence, you can terminate immediately someone who engages in violence and then claims an emotional disability.

However, be aware that the law isn’t so clearcut when it comes to other types of offenses that don’t appear to pose a safety threat to your workers. For instance, if an employee is chronically late to work because of an emotional disability, you may have accommodate the tardiness if being on time is not absolutely crucial to getting the job done.

 You can take a look at the EEOC’s Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act by going to: http://www.eeoc.gov/policy/docs/accommodation.html