It’s Baaack! The FMLA Notice Conundrum Returns to the Seventh Circuit

Darrell VanDeusen
Darrell VanDeusen
02/11/2020
When I speak or provide training on the FMLA, I often start by apologizing on behalf of Congress and the Department of Labor.  Congress, for creating a law the way you design a horse by committee (it comes out looking like a camel); the DOL for implementing regulations that you need legal expertise to follow and get right (and even then it is sometimes a crap shoot). For sure, the toughest FMLA area for employers is accommodating unforeseen,...
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Employer Not Required to Accommodate Diabetic Employee Who Sleeps on the Job

Bernadette Hunton
Bernadette Hunton
02/03/2020
It goes without saying that employees in any industry are generally expected to remain conscious while at work.  But what happens when an employee falls asleep on the job claiming that a disability is to blame? The Fifth Circuit in Clark v. Champion National Security, No. 18-11613 (5th Cir. 1/14/20), examined this issue, holding that it was not unlawful for an employer to discharge a sleeping employee who could not perform the essential...
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Seventh Circuit Recognizes Claim for Hostile Work Environment Based on Disability

Kollman & Saucier
Kollman & Saucier
11/27/2019
Earlier this month, the Seventh Circuit Court of Appeals joined several other federal courts of appeal by explicitly holding that a claim for hostile work environment based on disability is cognizable under the ADA.  Ford v. Marion County Sheriff’s Office, et al., No. 18-3217 (7th Cir. 11/15/19). Ford worked as a deputy for the Marion County Sheriff’s Office when she suffered a debilitating injury to her hand.  She was assigned to...
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Temporary GI Issues Not a Disability Under California Law

Kollman & Saucier
Kollman & Saucier
11/07/2019
Is an employee’s temporary gastrointestinal distress as a result of his failure to take prescribed medication properly a covered disability?  Not under California’s Fair Employment and Housing Act (FEHA), according to a recent decision out of California State court.  Smith v. Space Exploration Technologies Corp., No. B289189 (Cal. App. 2d 11/1/19). Smith worked for Space Exploration Technologies Corporation (SpaceX) as a Development...
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Federal Appeals Court: Cancer and FMLA Leave No Excuse for Being a Bad Supervisor

Frank Kollman
Frank Kollman
11/04/2019
The Sixth Circuit, headquartered in Cincinnati, has affirmed a decision that the termination of an employee with cancer following his return from FMLA leave was not a pretext for discrimination.  Williams v. Graphic Packaging International, Inc.  The employee in question, an upper level supervisor, was apparently mismanaging and intimidating his employees, which only came to light to his boss when the supervisor was out on FMLA leave. Normally,...
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Courts of Appeal Shed Light on "Regarded as Disabled" Claims

Kollman & Saucier
Kollman & Saucier
10/31/2019
“Being regarded as having” a disability is covered by the ADA.  “Being regarded as will be having” a disability is awkward to say -- and not covered by the ADA.  This is the conclusion at which the Seventh Circuit recently arrived in Shell v. Burlington Northern Santa Fe Railway Co., No. 19-1030 (7th Cir. 10/29/19). Shell worked for Corwith Rail Yard when Burlington Northern Santa Fe (BNSF) took over operations in 2010.  BNSF...
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Eighth Circuit Says Employee Not Required to Use "Magic Words" When Requesting Accomodation

Kollman & Saucier
Kollman & Saucier
10/15/2019
Employers may wish to avoid learning the details about their employees’ medical conditions.  But trying to avoid such knowledge does not necessarily absolve employers of applicable reasonable accommodation obligations under the ADA.  A recent case out of the Eighth Circuit demonstrates the importance of engaging in the interactive process when an employee asks for an accommodation.  Garrison v. Dolgencorp, LLC, No. 18-1066 (8th Cir....
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SCOTUS Denies Review of Domino’s Website Accessibility

Bernadette Hunton
Bernadette Hunton
10/14/2019
Last week, the Supreme Court denied Domino’s Pizza's request to review a Ninth Circuit decision, Robles v. Domino's Pizza, LLC, No. 17-55504 (1/15/19), that holds the Americans With Disabilities Act (ADA) requires stores and other businesses to make online services accessible to disabled persons.  The decision (or lack of) returns the case to a California federal court for a decision on the merits. The lawsuit was originally filed by Guillermo...
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Second Circuit Offers Guidance on Associational Discrimination

Kollman & Saucier
Kollman & Saucier
10/09/2019
How should an employer react when its employee reports needing time off to care for a sick or disabled relative or friend?  The Second Circuit recently weighed in on an ADA associational discrimination claim arising in part from an employer’s denial of a former employee’s schedule modification request to care for his disabled daughter.   Kelleher v. Fred A. Cook, Inc., No. 18-2385 (2d Cir. 9/24/19). John Kelleher began working for...
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Fitness for Duty Exams Scrutinized by Federal Court in Illinois

Frank Kollman
Frank Kollman
10/04/2019
Under the Americans with Disabilities Act, an employer may require medical examinations or make inquiries of employees about disabilities as long as the such examinations or inquiries are job related and consistent with business necessity.  The employer bears the burden of proof of business necessity and job relatedness.  Frequently, issues arise when employees develop medical conditions or behaviors that could affect performance and safety, and...
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