Employee Criticized for “Excessive Absences” May Have An FMLA Retaliation Claim

Frank Kollman
Frank Kollman
08/30/2012
A federal appeals court in Donnelly v. Greenburgh Central School District No. 7, No. 11-2448 (2d Cir., August 10, 2012), is permitting a teacher to proceed with his FMLA retaliation claim because the school district referred, in part, to his FMLA absences to lower his overall evaluation.  The lower evaluation was then used to deny the teacher tenure. It is important to remember that courts treat FMLA absences as “off-base” for any adverse...
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Appellate Court Rules Wellness Program Permitted Under ADA

Randi Klein Hyatt
Randi Klein Hyatt
08/27/2012
The American with Disabilities Act (ADA) generally prohibits employers from asking disability-related questions to employees or applicants or requiring them to submit to a medical examination, unless the examination or questions are “job-related and consistent with business necessity.”  42 U.S.C. § 12112(d)(4)(A).  The statute’s limits on disability-related inquiries can create difficulties for employers wishing to implement a wellness...
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Telling an Employee to Attend Psychological Counseling May Violate the ADA

Darrell VanDeusen
Darrell VanDeusen
08/24/2012
Emily Kroll was working as an EMT for White Lake Ambulance (WLA) when her supervisor began to get reports from employees about concerns over Kroll’s well being. The supervisor also  received a complaint that Kroll had screamed at a “male acquaintance” on the phone while driving a vehicle with a patient in emergency status. The supervisor told Kroll to attend counseling if she wanted to continue working at WLA.  She said “no” and left the...
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Seventh Circuit Holds That Casual Comments About A Family Member’s Poor Health Are Not Sufficient To Place An Employer On Notice Under FMLA

Clifford Geiger
Clifford Geiger
08/15/2012
Donna Nicholson was a sales associate for Pulte Homes.  In April 2009, following several months in which she failed to meet sales goals and generated two customer complaints, Nicholson was placed on a performance improvement plan (PIP).   The PIP required Nicholson sell two homes in both May and June.  Nicholson’s performance did not improve.  On June 22, Nicholson’s supervisors decided to terminate her employment, because she had not made a...
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Foreman With Fixable Knee Injury Is Disabled Under The ADA Amendments Act

Randi Klein Hyatt
Randi Klein Hyatt
08/14/2012
A foreman who worked for the city of Sanford, Florida had injured his knee while working for the Navy many years prior. The city hired the individual as an equipment operator after he was cleared as physically able to perform the functions of the job. He was promoted two weeks later to the foreman position, which involved physical tasks such as standing, walking, reaching, climbing, stooping, kneeling, crawling and lifting up to 50 pounds. The...
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What’s That Smell? ADA Requires Fragrance Accommodation

Randi Klein Hyatt
Randi Klein Hyatt
08/02/2012
By Randi Klein HyattAn Ohio county government employee had asthma and a severe chemical sensitivity to certain perfumes and fragrances.  In 2008, she began to experience problems breathing at work when working near co-workers wearing Japanese Cherry Blossom perfume.  She asked her employer to ask the co-workers to stop wearing fragrances.  The county did not and the employee’s symptoms and reactions worsened.  In February 2010, she actually had...
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Employer Stopped From Claiming No FMLA Eligibility

Darrell VanDeusen
Darrell VanDeusen
07/20/2012
By Darrell R. VanDeusen Making sure an employee is actually FMLA eligible before telling her she can take FMLA leave seems self-evident. But employers sometimes don’t do that. If the employee relies on the assurance of FMLA leave, the employer should not later take adverse action against the employee for taking leave, even if it discovers the employee had not actually met the FMLA’s eligibility requirements. A Pennsylvania County recently...
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Court Finds No Accommodation Possible for Deaf Employee, So Employer Wins

Darrell VanDeusen
Darrell VanDeusen
07/17/2012
By Darrell R. VanDeusen Jessica Chrysler is a congenitally and profoundly deaf individual who communicates with hearing individuals by writing notes, gesturing, pointing, and miming. She can also type, text message, and use body language. Chrysler was hired to take pictures at a photography store, usually of young children. She also was required to sell photo packages. When working with other employees who could hear, Chrysler could perform just...
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I Won’t Take That Sitting Down

Randi Klein Hyatt
Randi Klein Hyatt
07/06/2012
By Randi Klein Hyatt The EEOC decided to file suit against a Rite Aid store who would not permit one of its cashiers with bad knees to sit for half of her shift. The store ultimately fired the cashier for being unable to perform the essential functions of her position. The EEOC and the cashier had suggested that the cashier be permitted to sit for 30 minutes of every hour that she worked. The trial court disagreed, finding such a request “per...
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