First off, I want to wish all of my Jewish brethren a happy new year, and a nice period of reflection leading up to Yom Kippur. A bit different this year with massive synagogue gatherings not being in the cards. Some of us just reflected while others may have gone online and participated with their synagogue that way. Regardless of the means used, I hope your reflection went well.

 

I have quite a few cases that I could blog on in my pipeline, but today I opted to blog on HR 2694, the Pregnant Workers Fairness Act168119119119186117 that passed with large bipartisan majorities in the House on September 17. A few of my colleagues who blog on labor and employment law have already mentioned it, such as Eric Meyer and Jon Hyman. It wouldn’t surprise me if Robin Shea and many others weigh in as well. I thought I would break it down. So, here goes.

 

As we know from this blog entry, it makes sense as a preventive law matter to analyze accommodations for women who are pregnant in the same way that you would go about doing it for the ADA. However, that is just a matter of preventive law. This particular bill would mandate that whenever dealing with accommodation for women who are pregnant, you want to have your ADA hat on. The blog entry is divided into categories, all of which except the thoughts/takeaways section focuses on the Act itself. You are definitely going to want to read the whole thing as focusing on just parts of the Act doesn’t make any sense. Also, readers consistently tell me that my thoughts/takeaways section is very valuable. So, that means you need to read the whole thing. It isn’t very long anyway.

 

I

Unlawful Employment Practices Include

 

  1. Not making reasonable accommodations to the known limitations related to the pregnancy, childbirth, or related medical conditions of a qualified employee unless the covered entity can show an undue hardship on the operation of the business;
  2. Requiring a qualified employee affected by pregnancy, childbirth, or related medical conditions to accept an accommodation other than any reasonable accommodation arrived at through the interactive process;
  3. Denying employment opportunities to a qualified employee if the denial was based upon the need of the covered entity to make reasonable accommodation to the known limitations related to the pregnancy, childbirth, or related medical conditions of a qualified employee;
  4. Requiring a qualified employee to take leave, whether paid or unpaid, if another reasonable accommodation can be provided to the known limitations related to the pregnancy, childbirth, or related medical conditions of a qualified employee;
  5. Taking adverse action and terms, condition, or privileges of employment against a qualified employee on account of the employee requesting or using a reasonable accommodation to the known limitations related to the pregnancy, childbirth, or related medical conditions of the employee.

 

II

Remedies

 

  1. Remedies are tied into title VII of the Civil Rights Act of 1964.
  2. Attorney fees and expert witness fees are recoverable.
  3. Prohibits retaliation.
  4. Prohibits coercion, intimidation, threats, or interference.
  5. Good faith is a defense to damages.
  6. There is a forcible waiver of sovereign immunity.

 

III

Applicability to Federal Government

 

  1. Applies to Congress.
  2. Applies to employees of the federal government.

 

IV

Definitions

 

  1. Covered entity under this Act is defined in the same way as §701(n) of the Civil Rights Act of 1964, 42 U.S.C. 2000e(n).169120120120187118
  2. “Known limitation,” means a physical and mental condition related to, or affected by, or arising out of pregnancy, childbirth, or related medical conditions that the employee or employee’s representative has communicated to the employer whether or not such condition meets the definition of a disability under the ADA.
  3. “Qualified employee,” means an employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the employment position. However, a person is still qualified if all of the following are true: 1) any inability to perform the essential function is for a temporary period; 2) the essential function could be performed in the near future; and 3) the inability to perform the essential function can be reasonably accommodated.
  4. “Reasonable accommodation,” and “undue hardship,” mean the same thing as found in 42 U.S.C. §12111170121121121188119, title I of the ADA.

 

V

Thoughts/Takeaways

 

  1. When I talked to my colleague Robin Shea, a partner with Constangy et. al., about this, she thought the bill was a good idea because while doing all this is great preventive law. Young v. United Parcel Service171122122122189120 can get fuzzy at times, as discussed later. I agree with her. After Young v. United Parcel Service, this bill is exactly what best practices for any employer would be and it would be codified.
  2. Covered entity tracks the Civil Rights Act and NOT what is a place of public accommodation under 42 U.S.C. §12181172123123123190121(7).
  3. Must have 15 or more employees, which is the same number as four title I of the ADA.
  4. Requires an interactive process and that process if done right is a defense to damages, which matches up with the remedies provisions associated with the ADA at 42 U.S.C. §1981a(a)(3).173124124124191122 Remember to get it right, as we discussed here174125125125192123. The interactive process must be in search of a reasonable accommodation that would provide the employee with an equally effective opportunity that does not cause an undue hardship, which also matches up with title I of the ADA.
  5. Since women are in an intermediate scrutiny class, the forcible waiver of sovereign immunity will probably fly because it likely would be found to be proportional to the harm being redressed.
  6. Undue hardship as phrased in the Act clearly includes both logistical and financial undue hardship, which also matches up with how title I of the ADA has been interpreted over the years.
  7. The EEOC is responsible for implementing the statute and has two years to draft regulations. My guess is that the regulations would closely track the title I ADA regulations.
  8. Out of necessity, qualified under the Pregnant Workers Fairness Act is not the same as qualified under title I of the ADA, though it is close.
  9. Is this legislation needed? After all, didn’t the Supreme Court in Young say that if an employer is accommodating persons with disabilities, they also have to accommodate pregnant workers? While it is true that the Supreme Court did hold that much, the paradigm for making it work is quite vague. I confirmed this by rereading the opinion. Young tells us the following: 1) McDonnell Douglas burden shifting gets used in pregnancy nondiscrimination matters; 2) a prima facie case means showing: the plaintiff belonged to the protected class; that she sought an accommodation; and that the employer did not accommodate her while accommodating other similar in their ability or inability to work; 3) a plaintiff can create a genuine issue of material fact as to whether a significant burden exists by providing evidence that the employer accommodates a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers. So, it is clear from rereading the opinion that pregnant workers must be reasonably accommodated if you are ready accommodating persons without disabilities. However, the opinion doesn’t say much about how that process is supposed to work. For example, no mention of an interactive process. Also, no mention of how far you have to go with respect to accommodating a pregnant worker in need of accommodations. Lawyers familiar with the ADA quickly realized that it made a great deal of sense to just take the ADA process and layer it onto accommodating pregnant workers. However, that is just lawyers being creative. Not all lawyers are that familiar with the ADA. This legislation makes it statutory that preventive law currently being used by farsighted lawyers also familiar with the ADA should be codified. So, I come down on the side that Young simply isn’t clear enough as to what needs to be done when accommodating pregnant workers, and so, in my view, this legislation is necessary.
  10. It’s going to be interesting to see whether this gets a Senate vote. It passed the House by overwhelming majorities. I am a political junkie, I wrote a seminar paper in college on voting behavior and follow the field religiously, and I have been reading quite a bit about how the Republicans are in trouble with educated women in the suburbs. Passing this legislation, which is something that farsighted employers should be doing anyway and which the Chamber of Commerce is backing, would seem to be an easy way for Republicans to say that they have done something for a group that is treating them with a great deal of skepticism at the moment. Then again, there is only so much bandwidth and there is a vacancy on the Supreme Court that has very much moved to the forefront. So, anybody’s guess at two whether the Senate considers it. Also, anybody’s guess as to whether the Senate amend the house bill in some way and it has to go to a conference committee.
  11. The overlap between FMLA and the ADA often raises the question whether you can force an employee to take FMLA leave rather than accommodate them per the ADA. The Pregnant Workers Fairness Act makes clear that you cannot do that with respect to a pregnant person working for an entity covered by the Act. Best practices is such that you shouldn’t do that for the ADA either, though there isn’t a specific prohibition that would prevent an employer from doing that. That said, very bad idea for the employer to insist on leave and then end the interactive process.
  12. The use of the term “based on,” means that causation is but for as detailed in Bostock, discussed here175126126126193124.

Last week, the EEOC updated Covid-19 publication. What I have done here is list the EEOC update verbatim with respect to the material that we have not covered before. At the end of each section that is new (don’t worry about the numbers that appear in the hyperlink sections of the EEOC document as that it just the way it gets formatted when I cut and pasted), I give my thoughts and takeaways. For my Jewish brethren, happy new year. It is going to be a strange new year as most of us will not actually be going to synagogue and doing it, if at all, virtually.

A. Disability-Related Inquiries and Medical Exams

The ADA has restrictions on when and how much medical information an employer may obtain from any applicant or employee. Prior to making a conditional job offer to an applicant, disability-related inquiries and medical exams are generally prohibited. They are permitted between the time of the offer and when the applicant begins work, provided they are required for everyone in the same job category. Once an employee begins work, any disability-related inquiries or medical exams must be job related and consistent with business necessity.

A.6.  May an employer administer a COVID-19 test (a test to detect the presence of the COVID-19 virus) 29when evaluating an employee’s initial or continued presence in the workplace? (4/23/20; updated 9/8/20 to address stakeholder questions about updates to CDC guidance)

The ADA requires that any mandatory medical test of employees be “job related and consistent with business necessity.” Applying this standard to the current circumstances of the COVID-19 pandemic, employers may take screening steps to determine if employees entering the workplace have COVID-1930168119117 because an individual with the virus will pose a direct threat31169120118 to the health of others. Therefore an employer may choose to administer COVID-19 testing to employees before initially permitting them to enter the workplace and/or periodically to determine if their presence in the workplace poses a direct threat to others. The ADA does not interfere with employers following recommendations by the CDC32170121119 or other public health authorities regarding whether, when, and for whom testing or other screening is appropriate. Testing administered by employers consistent with current CDC guidance will meet the ADA’s “business necessity” standard.

Consistent with the ADA standard, employers should ensure that the tests are considered accurate and reliable. For example, employers may review information33171122120 from the U.S. Food and Drug Administration about what may or may not be considered safe and accurate testing, as well as guidance from CDC or other public health authorities. Because the CDC and FDA may revise their recommendations based on new information, it may be helpful to check these agency websites for updates. Employers may wish to consider the incidence of false-positives or false-negatives associated with a particular test. Note that a positive test result reveals that an individual most likely has a current infection and may be able to transmit the virus to others. A negative test result means that the individual did not have detectable COVID-19 at the time of testing.

A negative test does not mean the employee will not acquire the virus later. Based on guidance from medical and public health authorities, employers should still require–to the greatest extent possible–that employees observe infection control practices (such as social distancing, regular handwashing, and other measures) in the workplace to prevent transmission of COVID-19.

Thoughts/Takeaways:

  1. Covid-19 is a direct threat per the ADA.
  2. CDC guidelines can be a bit all over the place. You may want to consider having your own infectious disease specialist on retainer especially since the EEOC says that the CDC guidance meets ADA’s business necessity standard.
  3. Any test used must be accurate and reliable, which is very much an open question.
  4. Infection control practices are always a good idea.

Note: Question A.6 and A.8 address screening of employees generally. See Question A.9 regarding decisions to screen individual employees.

A.8.  May employers ask all employees physically entering the workplace if they have been diagnosed with or tested for COVID-19? (9/8/20; adapted from 3/27/20 Webinar Question 1)

Yes. Employers may ask all employees who will be physically entering the workplace if they have COVID-19 or symptoms associated with COVID-19, and ask if they have been tested for COVID-19. Symptoms associated with COVID-19 include, for example, fever, chills, cough, and shortness of breath. The CDC has identified a current list of symptoms37172123121.

An employer may exclude those with COVID-19, or symptoms associated with COVID-19, from the workplace because, as EEOC has stated, their presence would pose a direct threat to the health or safety of others. However, for those employees who are teleworking and are not physically interacting with coworkers or others (for example, customers), the employer would generally not be permitted to ask these questions.

Thoughts/Takeaways:

  1. Nothing wrong with asking all employees physically entering the workplace if they have Covid-19 or symptoms associated with Covid-19. Also, nothing wrong with asking all employees if they have been tested for Covid-19. Considering the unreliability of tests and the shortage of testing in many states, this may be a better approach.

A.10.  May an employer ask an employee who is physically coming into the workplace whether they have family members who have COVID-19 or symptoms associated with COVID-19? (9/8/2039; adapted from 3/27/20 Webinar Question 4)40

No. The Genetic Information Nondiscrimination Act (GINA) prohibits employers from asking employees medical questions about family members. GINA, however, does not prohibit an employer from asking employees whether they have had contact with anyone diagnosed with COVID-19 or who may have symptoms associated with the disease. Moreover, from a public health perspective, only asking an employee about his contact with family members would unnecessarily limit the information obtained about an employee’s potential exposure to COVID-19.

Thoughts/Takeaways:

  1. This answer is pretty straightforward.
  2. It isn’t only the ADA that has to be worried about in dealing with these kind of issues. Other laws, such as but not limited to the Genetic Information Nondiscrimination Act, must be worried about as well.

A.11.  What may an employer do under the ADA if an employee refuses to permit the employer to take his temperature or refuses to answer questions about whether he has COVID-19, has symptoms associated with COVID-19, or has been tested for COVID-19? (9/8/2041; adapted from 3/27/20 Webinar Question 2)42

Under the circumstances existing currently, the ADA allows an employer to bar an employee from physical presence in the workplace if he refuses to have his temperature taken or refuses to answer questions about whether he has COVID-19, has symptoms associated with COVID-19, or has been tested for COVID-19. To gain the cooperation of employees, however, employers may wish to ask the reasons for the employee’s refusal. The employer may be able to provide information or reassurance that they are taking these steps to ensure the safety of everyone in the workplace, and that these steps are consistent with health screening recommendations from CDC. Sometimes, employees are reluctant to provide medical information because they fear an employer may widely spread such personal medical information throughout the workplace. The ADA prohibits such broad disclosures. Alternatively, if an employee requests reasonable accommodation with respect to screening, the usual accommodation process should be followed; this is discussed in Question G.7.

Thoughts/Takeaways:

  1. A person refusing to allow an employer to take his or her temperature or refusing to answer questions about whether he or she has Covid-19, symptoms, or has been tested for Covid-19 can be barred from the workplace.
  2. Medical information must be kept in a separate file. The employer certainly wants to have a system in place for keeping medical related information secure and confidential.
  3. Employees are entitled to reasonable accommodations with respect to screening if necessary. Don’t forget about the interactive process, which we discussed here173124122.

A.12.  During the COVID-19 pandemic, may an employer request information from employees who work on-site, whether regularly or occasionally, who report feeling ill or who call in sick? (9/8/20; adapted from Pandemic Preparedness Question 6)

Due to the COVID-19 pandemic, at this time employers may ask employees who work on-site, whether regularly or occasionally, and report feeling ill or who call in sick, questions about their symptoms as part of workplace screening for COVID-19.

Thoughts/Takeaways: This answer is straightforward. So, I don’t have any thoughts/takeaways for this section.

A.13.  May an employer ask an employee why he or she has been absent from work? (9/8/20; adapted from Pandemic Preparedness Question 15)

Yes. Asking why an individual did not report to work is not a disability-related inquiry. An employer is always entitled to know why an employee has not reported for work.

Thoughts/Takeaways: This answer is straightforward. So, I don’t have any thoughts/takeaways for this section.

A.14.  When an employee returns from travel during a pandemic, must an employer wait until the employee develops COVID-19 symptoms to ask questions about where the person has traveled? (9/8/20; adapted from Pandemic Preparedness Question 8)

No. Questions about where a person traveled would not be disability-related inquiries. If the CDC or state or local public health officials recommend that people who visit specified locations remain at home for a certain period of time, an employer may ask whether employees are returning from these locations, even if the travel was personal.

Thoughts/Takeaways: This answer is straightforward. So, I don’t have any thoughts/takeaways for this section.

 

B. Confidentiality of Medical Information

With limited exceptions, the ADA requires employers to keep confidential any medical information they learn about any applicant or employee. 43Medical information includes not only a diagnosis or treatments, but also the fact that an individual has requested or is receiving a reasonable accommodation. 

B.5.  Suppose a manager learns that an employee has COVID-19, or has symptoms associated with the disease. The manager knows she must report it but is worried about violating ADA confidentiality. What should she do?  (9/8/20; adapted from 3/27/20 Webinar Question 5)

The ADA requires that an employer keep all medical information about employees confidential, even if that information is not about a disability. Clearly, the information that an employee has symptoms of, or a diagnosis of, COVID-19, is medical information. But the fact that this is medical information does not prevent the manager from reporting to appropriate employer officials so that they can take actions consistent with guidance from the CDC and other public health authorities.

The question is really what information to report: is it the fact that an employee—unnamed—has symptoms of COVID-19 or a diagnosis, or is it the identity of that employee? Who in the organization needs to know the identity of the employee will depend on each workplace and why a specific official needs this information. Employers should make every effort to limit the number of people who get to know the name of the employee.

The ADA does not interfere with a designated representative of the employer interviewing the employee to get a list of people with whom the employee possibly had contact through the workplace, so that the employer can then take action to notify those who may have come into contact with the employee, without revealing the employee’s identity. For example, using a generic descriptor, such as telling employees that “someone at this location” or “someone on the fourth floor” has COVID-19, provides notice and does not violate the ADA’s prohibition of disclosure of confidential medical information. For small employers, coworkers might be able to figure out who the employee is, but employers in that situation are still prohibited from confirming or revealing the employee’s identity. Also, all employer officials who are designated as needing to know the identity of an employee should be specifically instructed that they must maintain the confidentiality of this information. Employers may want to plan in advance what supervisors and managers should do if this situation arises and determine who will be responsible for receiving information and taking next steps.

  1. The ADA requires an employer keep all medical information about employees confidential even where that information is not about a disability.
  2. Even so, managers still have the ability to report to appropriate employer officials so they can take the appropriate action consistent with guidance from CDC and other public health authorities.
  3. Guidances from CDC can be a bit all over the place. Strongly consider having your own infectious disease specialist on retainer to help you sort it out. It’s possible that excellent infection control practices and the CDC guidances may not always match up.
  4. Employer should make every effort to limit the number of people who get to know the name of the employee.
  5. Contact tracing is permissible. Even so, be sure to preserve confidentiality and make clear to your employees the necessity of preserving confidentiality.

 

B.7.  An employer knows that an employee is teleworking because the person has COVID-19 or symptoms associated with the disease, and that he is in self-quarantine. May the employer tell staff that this particular employee is teleworking without saying why? (9/8/20; adapted from 3/27/20 Webinar Question 7)

Yes. If staff need to know how to contact the employee, and that the employee is working even if not present in the workplace, then disclosure that the employee is teleworking without saying why is permissible. Also, if the employee was on leave rather than teleworking because he has COVID-19 or symptoms associated with the disease, or any other medical condition, then an employer cannot disclose the reason for the leave, just the fact that the individual is on leave.

Thoughts/Takeaways: Be sure to read the question that begins this section closely. Note that it says, “without saying why?” That is something very important to not forget about or you wind up in an ADA confidentiality problem.

B.8.  Many employees, including managers and supervisors, are now teleworking as a result of COVID-19. How are they supposed to keep medical information of employees confidential while working remotely? (9/8/20; adapted from 3/27/20 Webinar Question 9)

The ADA requirement that medical information be kept confidential includes a requirement that it be stored separately from regular personnel files. If a manager or supervisor receives medical information involving COVID-19, or any other medical information, while teleworking, and is able to follow an employer’s existing confidentiality protocols while working remotely, the supervisor has to do so. But to the extent that is not feasible, the supervisor still must safeguard this information to the greatest extent possible until the supervisor can properly store it. This means that paper notepads, laptops, or other devices should not be left where others can access the protected information.

Similarly, documentation must not be stored electronically where others would have access. A manager may even wish to use initials or another code to further ensure confidentiality of the name of an employee.

Thoughts/takeaways: Just because a lot of people are teleworking does not mean that the ADA requirement that medical information be stored separately from regular personnel files no longer applies. It does. The answer to this section is otherwise straightforward.

D. Reasonable Accommodation

Under the ADA, reasonable accommodations are adjustments or modifications provided by an employer to enable people with disabilities to enjoy equal employment opportunities. If a reasonable accommodation is needed and requested by an individual with a disability to apply for a job, perform a job, or enjoy benefits and privileges of employment, the employer must provide it unless it would pose an undue hardship, meaning significant difficulty or expense. An employer has the discretion to choose among effective accommodations. Where a requested accommodation would result in undue hardship, the employer must offer an alternative accommodation if one is available absent undue hardship. In discussing accommodation requests, employers and employees may find it helpful to consult the Job Accommodation Network (JAN) website for types of accommodations, www.askjan.org52174125123. JAN’s materials specific to COVID-19 are at https://askjan.org/topics/COVID-19.cfm53175126124.

D.8.  May an employer invite employees now to ask for reasonable accommodations they may need in the future when they are permitted to return to the workplace? (4/17/20; updated 9/8/20 to address stakeholder questions)

Yes. Employers may inform the workforce that employees with disabilities may request accommodations in advance that they believe they may need when the workplace re-opens. This is discussed in greater detail in Question G.6. If advance requests are received, employers may begin the “interactive process” – the discussion between the employer and employee focused on whether the impairment is a disability and the reasons that an accommodation is needed. If an employee chooses not to request accommodation in advance, and instead requests it at a later time, the employer must still consider the request at that time.

Thoughts/Takeaways:

  1. An employer has the obligation to begin the interactive process the moment it becomes aware that a person may need accommodations. Remember, magic words are not required. See this blog entry for example176127125.
  2. Don’t forget about getting the interactive process right, which we discussed here177128126.
  3. An employee is free to request accommodations at any time.
  4. Nothing wrong with the employer informing its workforce that employees with disabilities may request accommodations in advance if they believe they may need them when the workplace reopens.
  5. Unreasonable delay in granting accommodations may be actionable, as we discussed here178129127, though Covid-19 may grant an employer some degree of slack.

D.14.  When an employer requires some or all of its employees to telework because of COVID-19 or government officials require employers to shut down their facilities and have workers telework, is the employer required to provide a teleworking employee with the same reasonable accommodations for disability under the ADA or the Rehabilitation Act that it provides to this individual in the workplace?  (9/8/2066; adapted from 3/27/20 Webinar Question 20)67

If such a request is made, the employer and employee should discuss what the employee needs and why, and whether the same or a different accommodation could suffice in the home setting. For example, an employee may already have certain things in their home to enable them to do their job so that they do not need to have all of the accommodations that are provided in the workplace.

Also, the undue hardship considerations might be different when evaluating a request for accommodation when teleworking rather than working in the workplace. A reasonable accommodation that is feasible and does not pose an undue hardship in the workplace might pose one when considering circumstances, such as the place where it is needed and the reason for telework. For example, the fact that the period of telework may be of a temporary or unknown duration may render certain accommodations either not feasible or an undue hardship. There may also be constraints on the normal availability of items or on the ability of an employer to conduct a necessary assessment.

As a practical matter, and in light of the circumstances that led to the need for telework, employers and employees should both be creative and flexible about what can be done when an employee needs a reasonable accommodation for telework at home. If possible, providing interim accommodations might be appropriate while an employer discusses a request with the employee or is waiting for additional information.

 

Thoughts/takeaways:

  1. It doesn’t matter where an employee works. If they have a disability and need an accommodation to do the essential functions of their job, then they are entitled to that accommodation absent in undue hardship. Since the place of work is different, the accommodations may be different as well. Figuring all this out is why you have the interactive process and why getting it right is important. It is entirely possible that the home environment may be already set up for the individual, but you just don’t know. Don’t forget that it is not proper to have the employee pay for their own accommodations.
  2. A huge issue is whether attendance on the job is a personal preference or an essential function of the job. The fact that people have been able to work from home productively for some time now may very well change the calculus of whether attendance at the actual worksite is an essential function of the job. Figuring out whether attendance is an essential function of the job at the actual worksite means taking a look at this blog entry179130128.
  3. Nothing wrong with providing interim accommodations while the interactive process works itself out.

D.15.  Assume that an employer grants telework to employees for the purpose of slowing or stopping the spread of COVID-19. When an employer reopens the workplace and recalls employees to the worksite, does the employer automatically have to grant telework as a reasonable accommodation to every employee with a disability who requests to continue this arrangement as an ADA/Rehabilitation Act accommodation?  (9/8/20; adapted from 3/27/20 Webinar Question 21)

No. Any time an employee requests a reasonable accommodation, the employer is entitled to understand the disability-related limitation that necessitates an accommodation. If there is no disability-related limitation that requires teleworking, then the employer does not have to provide telework as an accommodation. Or, if there is a disability-related limitation but the employer can effectively address the need with another form of reasonable accommodation at the workplace, then the employer can choose that alternative to telework.

To the extent that an employer is permitting telework to employees because of COVID-19 and is choosing to excuse an employee from performing one or more essential functions, then a request—after the workplace reopens—to continue telework as a reasonable accommodation does not have to be granted if it requires continuing to excuse the employee from performing an essential function. The ADA never requires an employer to eliminate an essential function as an accommodation for an individual with a disability.

The fact that an employer temporarily excused performance of one or more essential functions when it closed the workplace and enabled employees to telework for the purpose of protecting their safety from COVID-19, or otherwise chose to permit telework, does not mean that the employer permanently changed a job’s essential functions, that telework is always a feasible accommodation, or that it does not pose an undue hardship. These are fact-specific determinations. The employer has no obligation under the ADA to refrain from restoring all of an employee’s essential duties at such time as it chooses to restore the prior work arrangement, and then evaluating any requests for continued or new accommodations under the usual ADA rules.

Thoughts/Takeaways:

  1. I agree that if there is no disability related limitation that requires teleworking, then the employer does not have to provide telework as an accommodation. It is also true that an employee is not entitled to the accommodation they prefer. It’s a matter of what get the employee to the same starting line. However, don’t forget that many people are having long-term effects after coming down with Covid-19.
  2. The essential functions of the job may have changed. That is, teleworking may reveal that certain things that were essential functions are no longer essential functions. Preventive law would mean being flexible as jobs have evolved. Going back to the old way when the employee is currently productive may not make a lot of sense.
  3. Expect lots of litigation over whether attendance is a personal preference or an essential function of the job.
  4. Absolutely true that an employer has no obligation under the ADA to refrain from restoring all of an employee’s essential job functions at the time it chooses to restore the prior work arrangement, and then evaluating any request for continued or new accommodations through the interactive process. But see ¶ ¶ 2-3 of this section.

D.16.  Assume that prior to the emergence of the COVID-19 pandemic, an employee with a disability had requested telework as a reasonable accommodation. The employee had shown a disability-related need for this accommodation, but the employer denied it because of concerns that the employee would not be able to perform the essential functions remotely. In the past, the employee therefore continued to come to the workplace. However, after the COVID-19 crisis has subsided and temporary telework ends, the employee renews her request for telework as a reasonable accommodation. Can the employer again refuse the request? (9/8/20; adapted from 3/27/20 Webinar Question 22)

Assuming all the requirements for such a reasonable accommodation are satisfied, the temporary telework experience could be relevant to considering the renewed request. In this situation, for example, the period of providing telework because of the COVID-19 pandemic could serve as a trial period that showed whether or not this employee with a disability could satisfactorily perform all essential functions while working remotely, and the employer should consider any new requests in light of this information. As with all accommodation requests, the employee and the employer should engage in a flexible, cooperative interactive process going forward if this issue does arise.

Thoughts/Takeaways:

  1. See thoughts/takeaways to D.15 as to why what the EEOC says in D.16 is really good advice.

D.17.  Might the pandemic result in excusable delays during the interactive process? (9/8/20; adapted from 3/27/20 Webinar Question 19)

Yes. The rapid spread of COVID-19 has disrupted normal work routines and may have resulted in unexpected or increased requests for reasonable accommodation. Although employers and employees should address these requests as soon as possible, the extraordinary circumstances of the COVID-19 pandemic may result in delay in discussing requests and in providing accommodation where warranted. Employers and employees are encouraged to use interim solutions to enable employees to keep working as much as possible.

Thoughts/takeaways:

  1. As mentioned above, Covid-19 may give employers a bit of slack with respect to completing the interactive process. However, keep in mind that unreasonable delay may be actionable as we discussed here180131129.
  2. Get the interactive process right, as we mentioned

D.18.  Federal agencies are required to have timelines in their written reasonable accommodation procedures governing how quickly they will process requests and provide reasonable accommodations. What happens if circumstances created by the pandemic prevent an agency from meeting this timeline? (9/8/20; adapted from 3/27/20 Webinar Question 19)

Situations created by the current COVID-19 crisis may constitute an “extenuating circumstance”—something beyond a Federal agency’s control—that may justify exceeding the normal timeline that an agency has adopted in its internal reasonable accommodation procedures.

Thoughts/takeaways: Same as for D.17, immediately above.

F. Furloughs and Layoffs

F.2.  What are additional EEO considerations in planning furloughs or layoffs? (9/8/20; adapted from 3/27/20 Webinar Question 13)

The laws enforced by the EEOC prohibit covered employers from selecting people for furlough or layoff because of that individual’s race, color, religion, national origin, sex, age, disability, protected genetic information, or in retaliation for protected EEO activity.

Thoughts/Takeaways: F.2 is really straightforward. The only thing I will say is be sure to have knowledgeable counsel for each of the areas involved. Lawyers are specialists and some of us, like myself, are super specialists. Each of these laws can be very comprehensive and very involved.

I was thinking of blogging on the Seventh Circuit case where the Seventh Circuit held that the ministerial exception does not apply to hostile work environment claims. As sometimes happens, another labor and employment law blogger, this time Amy Epstein Gluck of Fisher Broyles, beat me to the punch, here173172186187117117. Amy did it so well that I am not sure what I could add to her excellent blog entry except that: 1) A Circuit Court split exists. So, look for it to go to the Supremes; and 2) the 10th Circuit case that held the ministerial exception does apply to hostile work environment claims did not have Justice Gorsuch on its panel.

 

Turning to our case of the day, Doe v. Supreme Court of Kentucky, here174173187188118118, I chose it because it is one of the best examples I have seen of calling out ableism. Ableism is the concept that people without disabilities know what is best for people with disabilities. Part of that includes people without disabilities concluding that people with disabilities can only practice their profession if they are closely monitored simply because they have disabilities. In a case decided by Judge Justin Walker, now of the District of Columbia Circuit, he made it clear that such philosophies are unacceptable. True, the plaintiff loses but that doesn’t make the philosophy any less acceptable. As usual, the blog entry is divided into categories and they are: Judge Walker tees it up; facts; court’s reasoning standing; court’s reasoning Rooker-Feldman/immunities; Judge Walker wraps it up; and thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the categories. Also, you will see various numbers in §I. Those numbers are references to footnotes in the opinion, which you can find by reading the case175174188189119119.

 

I

Judge Walker Tees It up (Taken Directly From The Opinion)

 

Courts, journalists, and scholars have extensively documented the mental health issues that afflict lawyers. 1 The problems begin in law school, where “law students have disproportionate levels of stress, anxiety, and mental health concerns compared with other populations.”2 After graduation, lawyers suffer from depression at higher rates than non-lawyers.3 Not long ago, the Kentucky Bar Association President described a spike in Kentucky lawyers dying by suicide as “disproportionate” and “disconcerting.”4 Jane Doe was a lawyer in Florida. She moved to Kentucky. She wanted to practice law here. Bureaucrats didn’t want her to. They thought her mental disability made her unfit. For over two years, they stopped her. But she didn’t give up. And they eventually relented. Then Doe sued them, alleging they had illegally asked about her mental health history and treatment, illegally forced her to turn over her medical records and her therapists’ notes from their counseling sessions, and illegally treated her like a criminal because of her disability. This case is not only about Jane Doe. It’s also about the lawyers who decide who else can be a lawyer [citations omitted]. Under the Kentucky Constitution, that power belongs to the Supreme Court of Kentucky. 5 The court, in turn, delegates that job to its Bar Bureaucracy: § The Character and Fitness Committee and Board of Bar Examiners comprise the Office of Bar Admissions.6 § The Character and Fitness Committee prohibits people from practicing law if the committee thinks they are immoral7 or unfit.8 § The Board of Bar Examiners prohibits people from practicing law if they can’t pass a timed exam that tests their ability to memorize whole areas of the law they will never again need to know anything about. 9 § The Kentucky Bar Association decides who gets to stay a lawyer.10 § The Kentucky Lawyer Assistance Program keeps tabs on lawyers and aspiring lawyers who have mental health issues by monitoring their medications, counseling, where they live, and where they travel.11 Anyone with any power in this Bar Bureaucracy is a lawyer. So, just like an oil or drug cartel, those who are already selling something get to decide who else may sell that same thing. Of course, unlike most cartels, this one is legal. In fact, the Kentucky Constitution requires it.12 If Doe had sued the Bar Bureaucracy back when it stopped her from entering the market, she would have had standing to ask the Court to block it from treating her like it did. But you can’t blame Doe for waiting to sue. If your goal is to persuade the Bar Bureaucracy’s lawyers to let you 5 Ky. Const. § 116 (“The Supreme Court shall, by rule, govern admission to the bar and discipline members of the bar.”). 6 SCR 2.000. Some of the Supreme Court Rules cited here have been recently amended due to the ongoing pandemic, but none of the recent amendments are material to this analysis. 7 SCR 2.011(1); SCR 2.040(3). 8 SCR 2.011(2); SCR 2.040(3). 9 SCR 2.020(3); SCR 2.080. 10 SCR 3.025; SCR 3.050; SCR 3.060; SCR 3.640(8)(d); SCR 3.645(4); see, e.g., Grinnell v. Kentucky Bar Association, 602 S.W.3d 784 (Ky. 2020); see also SCR 3.035(1)(c) (“Failure to maintain a current address which allows for physical service of process with the Director [of the Kentucky Bar Association] may be prosecuted in the same manner as a violation of the Rules of Professional Conduct.”). 11 SCR 3.900; SCR 3.910(2); DN 14-1 ¶¶ 40, 72. 12 Ky. Const. § 116. Case 3:19-cv-00236-JRW Document 43 Filed 08/28/20 Page 3 of 18 PageID #: 647 4 join their club, it isn’t a good strategy to poke them in the eye with a lawsuit that accuses them of violating the Americans with Disabilities Act and the United States Constitution. Because the Bar Bureaucracy (finally) allowed Doe to practice law, she lacks standing for prospective relief. And because legislative and judicial immunity protect Bar Bureaucracies from money damages arising from the promulgation of bar rules and the adjudication of bar applications, the Court will dismiss Doe’s federal claims. In addition, the Court declines to exercise supplemental jurisdiction over Doe’s state-law claims. The Bar Bureaucracy won this round against an applicant it deemed suspect and undesirable. But there will be more applicants — and more lawsuits. Some of those plaintiffs will have standing to seek prospective relief. And when they do, the Bar Bureaucracy will have to answer for a medieval approach to mental health that is as cruel as it is counterproductive.

 

II

Facts (Taken Directly from the Opinion)

 

Jane Doe was born and raised in Kentucky.17 She earned her Florida law license in 2006 and worked there in government and private practice. After a 2014 diagnosis for Bipolar I Disorder, Doe entered a monitoring program run by the Florida Lawyers’ Assistance Program. She was, and remains, in good standing with the Florida bar.18 In December 2015, Doe applied for a Kentucky law license. The application required her to disclose her history of depression and Bipolar I Disorder and that she had undergone treatment. And so began her 994-day tale of bureaucratic woe. 14 Letter from U.S. Department of Justice, Civil Rights Division, to Karen L. Richards, Executive Director, Vermont Human Rights Commission (Jan. 21, 2014) at 5 (emphasis added). 15 Letter from U.S. Department of Justice, Civil Rights Division, to the Honorable Bernette J. Johnson, Chief Justice, Louisiana Supreme Court, Elizabeth S. Schell, Executive Director, Louisiana Supreme Court Committee on Bar Admissions, Charles B. Plattsmier, Chief Disciplinary Counsel, Louisiana Attorney Disciplinary Board (Feb. 5, 2014) at 23. 16 To be clear, neither Doe nor the Department of Justice has argued that Bar Bureaucracies cannot ask about an applicant’s relevant past conduct, regardless of whether mental disability had a role in that conduct. Rather, they argue that Bar Bureaucracies cannot ask about an applicant’s status as a person with a mental disability, and they cannot treat an applicant differently based on that status. So, for example, it’s fair game to ask, “Have you ever been fired?” Or, “Have you ever robbed a bank?” Applicants’ mental health provides no escape from the questions, even if they had a mental disability when they were fired (or robbed the bank). 17 The Court takes the facts from the Amended Complaint and draws all reasonable inferences in Doe’s favor. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Court also relies on the Supreme Court Rules, which are public record. Bassett v. National Collegiate Athletic Association, 528 F.3d 426, 430 (6th Cir. 2008). 18 DN 14-1 ¶ 18. Case 3:19-cv-00236-JRW Document 43 Filed 08/28/20 Page 5 of 18 PageID #: 649 6 Doe disclosed everything Kentucky’s Bar Bureaucracy required her to disclose. That included two required releases giving the Bar Bureaucracy “complete access to her personal and private medical records, including treatment notes”19 and a third for her monitoring records from Florida. In January 2016, Doe’s doctor told the Bar Bureaucracy that Doe had “compli[ed] with medical advice, prescription instructions,” and what the Florida bar required of her.20 Doe’s doctors have always said she should “continue practicing law without concerns for her or the public’s safety.”21 The Bar Bureaucracy pressed on. So Doe sent in yet another form. This fourth medical records release granted “access to inpatient records, outpatient records, and treatment notes.”22 The next month, shortly before Doe took the February 2016 bar exam, the Character and Fitness Committee refused to approve her application. Instead, in March, the Bar Bureaucracy proposed, and Doe signed, a “consent agreement” for conditional admission. 23 It required 1) a Kentucky Contract (more on that later); 2) compliance with Florida’s rules and Kentucky’s rules and reporting requirements; and 3) “residency in Kentucky . . . unless” Doe was relocating for work and the Bar Bureaucracy approved. 24

 

Doe passed the bar exam. She paid the dues and swearing-in fee.

 

Instead of the personalized contract Hourigan [Director of the Kentucky Lawyer Assistance Program], had promised, she presented a boilerplate contract. It included a host of medically unnecessary requirements, including random drug and alcohol testing. When Doe told Hourigan she had never had drug or alcohol problems, Hourigan told her the provisions were standard. Hourigan, who is not a doctor27 but plays one on the Capitol steps, also said Doe’s medications required abstinence from alcohol. (They don’t.) Doe refused to sign the contract. She told Hourigan it violated the Americans with Disabilities Act, and “the ADA does not permit the disabled to be treated like criminals.”28 (It doesn’t.) D

 

Later in 2016, after Doe provided yet another medical-records release, Doe’s doctor advised Hourigan that Doe could drink alcohol on her medication. 25 Id. ¶ 49. 26 Id. ¶¶ 50, 54. 27 SCR 3.910(2). 28 DN 14-1 ¶ 52. Case 3:19-cv-00236-JRW Document 43 Filed 08/28/20 Page 7 of 18 PageID #: 651 8 Hourigan partially relented. She removed the alcohol provisions from the Kentucky Contract. But other intrusive and unnecessary requirements remained. For example, Doe had to tell Hourigan if she was leaving town for longer than a week. Unable to practice law, Doe taught civics, safety, and sewing to refugees. Meanwhile, the Bar Bureaucracy ordered her to appear for a formal hearing, at Doe’s expense, to show cause for allegedly violating the consent agreement. The Bar Bureaucracy’s lawyer, Elizabeth Feamster, demanded even more documents, as well as the contact information for Doe’s employer.

 

Recall that on the record before us, Doe had been licensed by Florida for the past eleven years — and had practiced there for the first nine of those years — and remained in good standing that whole time.30

 

A year later, in 2018, Doe successfully completed Florida’s monitoring program. Her doctor wrote yet another letter to the Bar Bureaucracy saying he still “had no concerns regarding her mental health and encouraged her to continue practicing law.”31 29 Id. ¶ 76. 30 Id. ¶ 18. 31 Id. ¶ 92. Case 3:19-cv-00236-JRW Document 43 Filed 08/28/20 Page 8 of 18 PageID #: 652 9 In July 2018, the Bar Bureaucracy held another hearing. Again, they interrogated Doe about her disability. After the hearing, Feamster demanded still more information about Doe’s medical treatment. And yet again, Doe told the Bar Bureaucracy that they were violating the Americans with Disabilities Act. Finally, in August 2018, Doe was unconditionally admitted to practice law in Kentucky. Her bar file still contains protected health information and show cause orders suggesting that “her disability and treatment [are] character and professional flaws.”32 In 2019, Doe filed this suit against the Bar Bureaucracy for violating the Americans with Disabilities Act, the Rehabilitation Act, and the Equal Protection Clause.33 She also sued under Kentucky law for defamation and intentional infliction of emotional distress.34

 

III

Court’s Reasoning Standing

 

  1. For injunctive relief plaintiff wants the bar bureaucracy to remove the show cause orders and the medical information in her records from her file. However, plaintiff has not alleged any harm that may result from the allegedly tainted file nor has she shown that any injury is certainly impending.
  2. If the plaintiff avoids any disciplinary issues in Kentucky, the file may never come into play.
  3. While it is conceivable that her file could be used at some point for some other purpose, any future injury is speculative or tenuous. So, plaintiff has no standing to seek injunctive relief.
  4. With respect to standing for the federal claims against the office of bar admissions, the Kentucky Board of Bar Examiners, the Kentucky Bar Association, the Kentucky Lawyer Assistant Program entities, and Yvette Hourigan in her official capacities, no causal connection between plaintiff’s injuries and defendants exist. They did not block her from practicing law simply because they didn’t have the power to do so.
  5. Although the character and fitness committee is a division of the office of bar admissions, the office of bar admissions doesn’t actually make any final decisions.
  6. Plaintiff does have standing with respect to her federal law damages claims against the Supreme Court of Kentucky and the character and fitness committee because: 1) both had the power to and did decide to ask her about her mental health; 2) both had the power to and did deny her an unconditional license for over two years; 3) both had the power to and did impose administrative and financial burden on her that they did not impose on other applicants; 4) all these injuries are fairly traceable to the Kentucky Supreme Court and the character and fitness committee; and 5) a damages decision in plaintiff’s favor would redress these injuries.
  7. Plaintiff has standing to sue both Hourigan and Feamster for defamation and intentional infliction of emotional distress.

 

IV

Court’s Reasoning Rooker-Feldman/Immunities

 

  1. Feldman explicitly says that a court has subject matter jurisdiction over general challenges to State Bar rules promulgated by state courts in non-judicial proceedings that do not require review of a final state court judgment in a particular case. Here, plaintiff challenges Kentucky’s bar rules, including its licensing and bar admission system. So, Rooker-Feldman argument fails.
  2. A state can waive sovereign immunity. Here, defendants raised sovereign immunity in their motion to dismiss and at oral argument, however they expressly declined to raise it as a threshold defense. So, sovereign immunity is waived.
  3. The Sixth Circuit has held that the nature of the function in determining qualification for admission to the bar is a judicial act. Therefore, absolute immunity protected the Supreme Court of Kentucky and the character and fitness committee.
  4. Legislative immunity says the Sixth Circuit protects the Supreme Court of Kentucky from a challenge to its promulgation of bar admission rules, including the rules requiring the character and fitness committee to interrogate applicants about their mental health. The Sixth Circuit has also applied legislative immunity to block suits challenging how a state Supreme Court and its delegates promulgate rules about who gets to become a lawyer.
  5. A plaintiff can sue for a prospective relief, i.e. a declaration that questions violate federal law and an injunction prohibiting the bar bureaucracy from asking them if the plaintiff was a bar applicant and not one unconditionally licensed like the plaintiff was when she filed the suit.

 

V

Judge Walker Wraps It up (Taken Directly from the Opinion)

 

Law school is hard. The stress, rigor, and competition can lead to depression, anxiety, and substance abuse. Many students who start school healthy are far from it by the time they graduate. Some kill themselves.  Aspiring lawyer should seek the healthcare they need. But if Kentucky continues to punish people who get help, many won’t. And one day, a law student will die after choosing self-help over medical care because he worried a character and fitness committee we do that medical treatment against them-as Kentucky’s did against Jane Doe. It is not a matter of if, but when.

 

VI

Thoughts/Takeaways

 

  1. I can’t recall ever seeing a federal judge call out ableism like this before. I can tell you that much the same and even more so is happening with respect to medical licensing boards and the PHP’s. True, this is a motion to dismiss and the court was obligated to take the allegations as true. However, I have seen plenty of fact patterns very similar to this in the course of my practice. Also, plaintiff loses. So, much of what he says is dicta. Even so, what he says is very powerful. Already, Law 360 reported here192120 (subscription required), that both Matthew Dietz and Disability Rights Florida filed this decision with the State of Florida as part of their successful efforts to get the Florida Supreme Court to no longer treat members with a history of drug, alcohol or psychological issues as a separate class of conditionally admitted members.
  2. The Supreme Court currently has before it a petition for cert. challenging an Illinois Supreme Court decision with respect to an applicant with MH issues. One of the things mentioned in that petition is the problems the Rooker-Feldman doctrine presents. This case presents an opportunity to show how that doctrine does not apply. I wonder if the attorneys in that case representing the bar applicant won’t alert the Supreme Court to Judge Walker’s opinion.
  3. If judicial and legislative immunity can somehow be circumvented, sovereign immunity would get very complicated. One wonders where practicing law would fall with respect to the equal protection tiers.
  4. Judge Walker is now on the District of Columbia Circuit. It will be interesting to see how he goes about deciding §§501, 504 of the Rehabilitation Act cases. Since the ADA does not apply to the federal government but the Rehabilitation Act does, he is probably more likely to decide Rehabilitation Act cases than ADA cases while he is on the DC circuit.
  5. The efforts of Matthew Dietz and Disability Rights Florida before the Florida bar also resulted in a new rule saying that all costs associated with monitoring unless otherwise required by law are to be paid by a member who was admitted pursuant to a consent agreement. The “unless otherwise required by law,” language is new. What it allows for is the waving of making the applicant pay the costs associated with monitoring. Such a waiver makes sense because without such a waiver an argument exist that you are making the applicant with a disability pay for their own reasonable modifications/accommodations, which is not something that can be done. See this blog entry176175189190120121 for example.
  6. At Judge Walker notes, several federal and state courts have held that the ADA prohibits the bar bureaucracy from unnecessarily interrogating applicants about their mental health.
  7. The DOJ has also brought the hammer down on the State Bar of Louisiana, as we discussed here177176190191121122, for their practices with respect to applicants with mental health conditions. According to the DOJ, asking applicants about their mental health status makes aspiring lawyers less fit to practice law because they likely deter applicant from seeking counseling and treatment for mental health concerns.
  8. With respect to sovereign immunity needing to be raised as a threshold defense, check your jurisdiction on that as there are many cases saying sovereign immunity can be raised at any time.
  9. Definitely look for plaintiff lawyers and disability rights activists to spread judge Walker’s decision far and wide. What happened in Kentucky is not unusual at all for either bar applicant’s or for medical professional thrown into the PHP system by medical licensing boards.

Today’s case is an unpublished decision out of the Northern District of Texas that has potential to be a real sleeper. That is, one of the things that the medical licensing boards and the PHP’s are doing are claiming that ensuring physicians with disabilities are not allowed to practice or can only practice with restrictions is a matter of public safety. Of course, it doesn’t work that way. The question is whether the physician is a direct threat to others with respect to matters involving the medical licensing board or the PHP. If a physician’s employer is an entity of 15 or more, then the issue is whether the physician is a direct threat to self or others. So, the case of the day is important because it talks about the burden of proof when it comes to direct threat cases where the employee is engaged in a job that very much affects the safety of others. The case is Goode v. BNSF Railway, Inc., here207189, an unpublished decision decided by the Northern District of Texas on March 20, 2020. As usual, the blog is divided into categories and they are: facts; court’s reasoning whether plaintiff was a qualified person with a disability; court’s reasoning burden of proof in direct threat cases; court’s reasoning direct threat existed as a matter of law; and thoughts/takeaways. The reader is free to focus on any or all of the categories.

 

I

Facts

 

In 1998, plaintiff Cody Goode was diagnosed with dilated cardiomyopathy. As a result, in 2003, he had a single device containing both a pacemaker and an implantable cardioverterdefibrillator (“ICD”) inserted into his chest. The ICD is a device placed in the chest to reduce the risk of dying if the lower chamber of the heart goes into a dangerous rhythm and stops beating effectively. Essentially, the ICD shocks the heart back into a normal heart rhythm if it goes into cardiac arrest.

 

In 2006, Goode applied for a conductor position with BNSF. This position is one of several jobs within the “train-service category,” which includes the positions of conductor, switchman, and brakeman. The position involves working on a train in over-the-road trips as well as working in a rail yard. Additionally, under BNSF’s labor agreements, train-service employees are also required to become locomotive engineers, who “are responsible for the operation of trains, including those that carry hazardous materials.” After being interviewed, Goode was offered a train-service position conditioned upon his successful completion of a post-offer medical evaluation.

 

CHS was permitted to medically qualify an applicant if he disclosed that he had cardiomyopathy and a pacemaker alone. But for other conditions, CHS was supposed to forward the applicant’s information to MEH.

 

On his questionnaire, Goode indicated that he had a pacemaker installed in 2003, but he did not disclose on the questionnaire that his device also included an ICD. CHS’s clinical notes indicate that Goode told the nurse he had a pacemaker, but they do not reflect that Goode mentioned his device also included an ICD. Indeed, Goode cannot recall whether he specifically told the person conducting his medical evaluation that he had an ICD. But Goode was asked to, and he did provide additional medical records from his cardiologist to CHS. Those records included a “certificate to return to work” signed by his cardiologist indicating that Goode was “ok from a cardiac standpoint to work w/ a pacemaker in a safety-sensitive situation.” Additionally, the records reflect that Goode’s device included an ICD. Nevertheless, CHS cleared Goode for hire in the conductor position. Goode worked in the train-service category as a conductor, brakeman, and switchman without incident from 2006 to 2009, when he was furloughed. On April 7, 2010, BNSF sent him a letter recalling him to active service. In connection with this recall, Goode informed MEH that he had an ICD. Dr. Sharon Clark, a Field Medical Officer in MEH, reviewed Goode’s medical records to determine whether he could perform the essential functions of his train-service position with the ICD. Dr. Clark concluded that he could not safely do so. As a result, BNSF arranged for Goode to take the Dispatcher Aptitude Test, which he passed, and attend Dispatcher training in January 2011. Goode has been working as a dispatcher for BNSF since then.

 

II

Court’s Reasoning Whether Plaintiff was a Qualified Person with a Disability

 

  1. To be qualified, an employee must be able to perform with or without reasonable accommodations the essential functions of his position in spite of his disability (“in spite of his disability,” are the words actually used by the court).
  2. The employer pointed out that train service employees frequently work around or on heavy moving equipment or between a set of railroad tracks based as narrowly as 36 inches apart.
  3. A routine part of a conductor’s job is riding on the side of a moving railcar while holding a ladder.
  4. A conductor wears a remote control belt that actually moves trains in the railyard without the help of an engineer.
  5. Train service employees are also required to be able to perform the role of locomotive engineers who are responsible for the operation of trains, including those carrying hazardous materials.
  6. No other individuals with an ICD have knowingly been permitted by the employer’s medical people to work as a train service employee.
  7. Plaintiff admitted in his deposition that if his ICD shocked him while performing as a conductor, he would present a safety risk at least to himself.

 

III

Court’s Reasoning Direct Threat Burden of Proof

 

  1. Direct threat appears in a section labeled defenses, 42 U.S.C. §12113(a).168119119190
  2. The Fifth Circuit has declined to specifically decide which party has the burden of proof when it comes to direct threat.
  3. The 10th Circuit has concluded that although the existence of a direct threat is generally a defense to be proved by the employer, an exception exists where the essential job duties necessarily implicate the safety of others. In that situation, the burden may be on the plaintiff to show that he or she can perform those functions without endangering others.
  4. The 10th Circuit relied upon a Fifth Circuit case from 2000 saying that the burden may be on the plaintiff to show that he or she can perform those functions without endangering others where the job duties necessarily implicate the safety of others.
  5. Since many of the essential functions of a train service employee implicate the safety of both the employee and others, the plaintiff must prove that he is not a direct threat as part of his prima facie case.

IV

Court’s Reasoning That Direct Threat Exist As a Matter of Law

 

  1. Whether an employer has properly determined that a person poses a direct threat depends upon the objective reasonableness of the employer’s actions.
  2. Citing to Chevron v. Echazabal, which we discussed here169120120191, the direct threat defense must be based upon a reasonable medical judgment relying on the most current medical knowledge and/or the best available objective evidence and upon an individualized assessment of the individual’s present ability to safely perform the essential functions of the job.
  3. In determining direct threat, the court looks at: the nature of the risk, duration of the risk, the severity of the risk, and the probability that the potential harm will occur. If the threatened harm is grievous, even a small risk may be significant.
  4. The issue isn’t whether the employer is correct about the risk the employee poses, but instead whether the employer’s decision was objectively reasonable based upon the information it had before it.
  5. The law only requires that an employer rely on the objectively reasonable opinion rather than an opinion that is actually correct.
  6. If plaintiff were acting as an engineer and transporting hazardous materials at the time his ICD fired, the risk to himself, his fellow employees, and the general public could be great. So while the probability and duration of the risk caused by his ICD firing might be low, the nature and severity of the risk when he collapses as a result of the firing of the ICD is potentially catastrophic.
  7. Plaintiff presented no contrary evidence demonstrating that the conclusion of the doctors was incorrect, much less objectively unreasonable.

 

V

Takeaways

 

  1. I am a bit surprised that this case was not appealed. Looking at the docket for the case, the deadline for appealing has passed. I did see that plaintiff was taxed costs of $2235 and some change.
  2. I don’t argue the points made by the court with respect to direct threat existing as a matter of law, which may be the reason why the case was not appealed.
  3. I do think that it is not a foregone conclusion that the burden of proof in direct threat cases falls upon the plaintiff in some situations, such as public safety. After all if that is true, then why does direct threat appear in the ADA under defenses?
  4. Whether a person is a qualified individual with a disability depends upon whether they can perform the essential functions of the job with or without reasonable accommodations assuming they meet the necessary experience, training, etc. for the position in the first place. The term “in spite of his disability,” is jarring to say the least. The issue is whether the person meets the requirement for the position and whether they can perform the essential functions of the job with or without reasonable accommodations. The issue is also whether they have a disability in the first place. Whether any of this takes place in spite of their disability is simply not the issue and is not correct.
  5. The reason this case is a big sleeper if it stands as it goes through the courts is because in the world of medical licensing boards and physician health programs, which we discussed here170121121192, one of the common things that is argued by medical licensing boards and physician health programs is that what a physician does necessarily implicates the safety of others. So, this would mean whenever a healthcare professional is being subject to medical licensure board proceedings or to physician health program proceedings, the question of direct threat would be placed squarely on the physician under this decision and not upon the medical licensing board, the physician health program, or even the physician’s employer.
  6. Regardless of the burden of proof of direct threat, direct threat is still the consideration and not some amorphous, “public safety” concept.
  7. Interesting note, the 10th Circuit case relied upon by the court, Jarvis v. Potter171122122193, had Justice Gorsuch on its panel, though he did not write the decision, and the decision was unanimous.

 

Today’s blog entry deals with a very common scenario. It works this way. Person goes on FMLA leave. FMLA leave is for 12 weeks. Employers can require employees to exhaust sick and vacation time as part of that leave. After that, the employee is on unpaid leave. When the leave is over the employee gets his or her job back or an equivalent job if at all possible. A company can insist on a certification process with respect to taking the leave and coming back from the leave. With respect to coming back from the leave, the certification process would include assessing whether the employee can perform the essential functions of the job. Very importantly, that assessment does not include whether they can perform the essential functions of the job with or without reasonable accommodations. Accordingly, what you see quite a bit of is the employee asking for leave pursuant to the ADA after the FMLA leave has expired. Since the ADA amendments has broadened just who is covered by the ADA, many people can justifiably claim they have a disability and ask for the reasonable accommodation of additional leave beyond the FMLA leave. All this said, that doesn’t answer the question as to what is a reasonable amount of leave. The majority rule is that if the employee can give the employer a definite time when they will come back and be able to do the essential functions of the job with or without reasonable accommodations, then the additional leave is in order. In the Seventh Circuit, as we discussed here, just about any additional leave is not reasonable. Now, the Ninth Circuit, in a case Eric Meyer alerted me to because I subscribe to his blog, has come up with a different approach. The case is Kachur v. NAV-LVH, an unpublished decision decided by the Ninth Circuit on June 8, 2020. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning; and thoughts/takeaways. Since this is such a short blog entry for me, I am figuring that the reader is going to want to read the whole thing. If the reader does not want to read the whole thing, I definitely recommend reading the thoughts/takeaways section.

 

I

Facts

Plaintiff underwent knee surgery and kept the defendant abreast of his recovery progress on a monthly basis after he exhausted his FMLA leave. At the time of termination, plaintiff had requested an additional four weeks of leave on top of the 16 weeks previously granted. Plaintiff estimated treatment schedule involved monthly appointment for 3 to 4 visits. Plaintiff’s physician also provided deposition testimony regarding the indeterminacy of the healing process following the surgery.

 

II

Court’s Reasoning

 

  1. The ADA does not require an employee to show that a leave of absence is certain or even likely to be successful to prove that it is a reasonable accommodation. Rather, an employee only needs to satisfy the minimal requirement that a leave of absence could plausibly enable him to adequately perform his job.
  2. The Ninth Circuit has never recognized an accommodation that fails to provide a date certain for returning to work is per se unreasonable.
  3. Viewing the evidence in the light most favorable to the plaintiff, there appears to be a genuine dispute of material fact regarding whether his request for an extension of his unpaid leave was a reasonable accommodation.
  4. The updates plaintiff provided to his employer as to his recovery progress can easily be understood as estimates of when he could be expected to return to work. Further, the request of an additional four weeks of leave seems facially reasonable.
  5. On remand, the district court has to consider first whether plaintiff’s additional leave request would pose an undue hardship on his employer.
  6. In a footnote, the court noted that it had stated previously that recovery time of unspecified duration may not be a reasonable accommodation (primarily where the employee will not be able to return to his former position and cannot state when and under what conditions he could return to work at all). However, that statement is not a declaration that recovery time of unspecified duration is not a reasonable accommodation.

 

III

Thoughts/Takeaways

 

  1. We most definitely have a Circuit Court split now. So, it is only a matter of time before the United States Supreme Court takes this up. The Circuit Court split essentially involves three possibilities: 1) the Seventh Circuit view, which we discussed here, that any leave beyond the FMLA leave is just about always unreasonable; 2) the Ninth Circuit view that it always comes down to undue hardship, whether it be logistical undue hardship (i.e. fundamental alteration), or financial undue hardship; 3) the view of many courts that a date certain must be given by the employee, and then it comes down to whether a logistical undue hardship or a financial undue hardship exist. Predicting what the United States Supreme Court will do in this situation is a complete guess. Generally speaking, people with disabilities have not fared well at the Supreme Court in employment matters. However, the Seventh Circuit view seems a bit extreme. On the other hand, the Ninth Circuit view presents a problem for businesses because it leaves them with a lot of uncertainty with respect to staffing their businesses. The middle ground, which is a date certain balanced against undue hardship seems to me to make the most sense.
  2. You have to drill down into the facts a bit in terms of the phrasing used by the court to realize that the plaintiff in this case took 12 weeks of FMLA leave and then the employer granted an additional four weeks on top of that, presumably as a reasonable accommodation under the ADA. At the time of termination, plaintiff had requested an additional four weeks of leave, but it was not a hard return date.
  3. In checking the docket for this case, it is now back in the District Court and the employer has filed a summary judgment motion.
  4. So, what is an employer to do? First, check your jurisdiction. As mentioned above, there are three possibilities as to how jurisdictions might handle this question.
  5. If on the employer side, it helps if you can show that the extended absence presents a logistical undue hardship for the business. In some situations, it may present a financial undue hardship, though that will probably be harder to show.
  6. Even in a jurisdiction where an uncertain date of return is allowable, an employer still has the ability to show that the uncertain date of return presents an undue hardship.
  7. This isn’t really something that Congress would likely get involved in fixing. So, this will eventually head to the Supreme Court for resolution. When it does, the Supreme Court will be faced with three possible choices. Uncertain date of return and almost any leave beyond FMLA not being reasonable are extreme positions. The Supreme Court often likes to look for a sensible middle ground. As I mentioned previously, absolutely anybody’s guess as to what the Supreme Court will decide. So, look for cases to take on any of the three categories before the Supreme Court gets to it. My guess is that most cases will come down on the majority rule and some will come down on the Ninth Circuit approach. Hard to believe the Seventh Circuit approach will be that persuasive, but you never know.
  8. Underlying all of this is whether attendance is an essential function of the job. For determining that question, my go to is this blog entry. That said, Covid-19 and a tremendous amount of people moving to remote work has definitely changed the calculus as to whether attendance is always or just about always an essential function of the job.

Today’s blog entry is a bit something different. What I thought I would do is discuss several Covid-19 scenarios happening in the real world and see how they apply to the ADA.

 

I

State of Connecticut’s Crackdown on Mask Exemptions

 

On August 12, 2020, the Hartford Courant reported that the governor of Connecticut would soon require non-mask wearers to present a Doctor’s note showing that they have a legitimate exemption from the state’s mask mandate. On August 14, the governor of Connecticut issued that order. That order, which can be found here, requires a person claiming they cannot wear a mask to have medical documentation on them proving that they cannot wear masks. The governor issued the order because he felt the requirement was necessary to crackdown on people using the medical exemption as an excuse not to wear masks and that people were beginning to abuse the privilege. The interim Executive Director of Disability Rights Connecticut, the Connecticut Protection and Advocacy organization, said that requiring people to carry physician approved evidence of their disabilities is an unequal burden not imposed on people without disabilities. He also said that a person with a disability should not have additional expense or demands on their time just to be able to use the same store as everybody else.  Melissa Marshall, coordinator of the Connecticut Cross Disability Lifespan Alliance, had a different view. She said that the ADA allows businesses in public places to refuse entrance to anyone posing a public health threat. That includes people not wearing mask even if they have a disability preventing them from wearing a mask. She said that businesses can prohibit someone from coming in if they are not wearing a mask and that even requiring a Doctor’s note does not require someone to be let in.

 

Answer: I agree with Melissa though I would use the term “direct threat,” rather than the term, “public health threat.” Regardless of the title of the ADA, the ADA does not protect those who are a direct threat to others. Here, the medical science is quite clear that a person not wearing a mask where social distancing is not possible is a direct threat to others. Accordingly, regardless of whether that person has a Doctor’s note attesting as to why they could not wear a mask, a business would be perfectly justified in not allowing such an individual into a place where social distancing is not possible unless they are wearing a mask. As others noted in the article, the business would have to figure out a way to accommodate that customer short of letting them into the store. So if a restaurant was involved, the restaurant could bring the food out to the person’s car. If it is a matter of shopping in the store, the store could ask for a list from the customer and then shop it for them, not much different than Instacart.

 

II

 

The Sheriff Who Demands Everybody Show up to Work without a Mask

 

Jon Hyman of the Ohio Employer’s Law blog has been running a contest for at least the last couple of years where he nominates an employer for the worse employer of the year. At the end of the year, his readers vote on who they think is the worse employer of the year. He picks out the absolute craziest things that are happening. In Jon’s August 13, 2020, blog entry, here, Jon picked out as a nominee for the worse employer of the year Sheriff Billy Woods of Marion County, Florida. He prohibited his approximately 900 employees from wearing masks or facial coverings while on duty. His directive included anyone entering any of his buildings as well. On the same day his email was sent, Marion County hit the highest number of Covid-19 in a single day. His response was to say that he could find an equal amount of professional saying masks should not be worn v. those who say that masks should be worn.

 

Answer: First, the medical science is overwhelming that masks need to be worn in areas where social distancing is not possible. Second, OSHA requires a safe workplace even though it has not issued specific masks guidances. OSHA doesn’t have anything specifically on point, but they do refer to the general duty clause and to CDC. So, the sheriff’s actions run a real risk of OSHA violations. For those employees of his with underlying conditions and arguably for those employees of his associating with persons with underlying conditions, OSHA would seem to be in play. Second, the directive arguably violates the ADA in two respects. First, it creates a situation where people are forced to be a direct threat to others if not to themselves. Second, it also discriminates against those who associate with people with disabilities by preventing them from taking action to minimize the risk to those they associate with. So, possible ADA violations as well as OSHA violations here.

 

III

Attorney Associated with the Person with Covid-19

 

Eric Meyer of the employer handbook blog, has a blog entry from August 12, 2020, discussing the situation of an attorney who appeared in court in person even though she knew that her young son was at home with Covid-19. The judge got so angry that he immediately closed the courtroom and had the sheriff’s deputy removed the lawyer from the courthouse. He then banned the lawyer from the courthouse until she could produce negative Covid-19 tests result for herself, her child, and anyone else with whom she lives. Eric noted that the CDC no longer recommends a test-based strategy to determine when to discontinue home isolation except in very limited circumstances. He also notes that a test-based strategy might make sense for the anyone severely immunocompromised.

 

Answer: Several things to consider. First, was the attorney wearing a mask when she went to court. Second, did the attorney ask for a reasonable modification of a remote hearing in advance and was it refused? Third, a negative test is only a snapshot in time. So, for a different moment in time, you could have a different result. Fourth, regarded as applies across all of the titles of the ADA. Finally, if the child has Covid-19, I am not sure I understand why the attorney was not quarantining herself.

 

IV

 

Cleveland Indians

 

Jon Hyman, the author of the Ohio Employer’s Law blog, is  a huge sports fan. Originally from Philadelphia, he now lives and works in the Cleveland area. On August 10, 2020 his blog entry talks about how a pitcher of the Cleveland Indians, Zach Plesac, was irresponsible in his off field behavior and the action that the Indians took in response. It turns out that MLB security personnel caught Plesac returning to the team’s hotel after he had gone out with friends. The Indians have their own Covid-19 code of conduct that required him to obtain permission before leaving the hotel. The Indians hired a car service to return him to Cleveland so that he would not share an airplane with his teammates and potentially place them at risk. The team said that he would remain quarantined until he received two negative tests. Jon goes on to say that while a business may not be able to dictate how employees spend their free time, a business can hold them to the consequences if they act irresponsibly when off the clock. Every employee has a responsibility to their employer, coworkers, and the business to make sure to do what they can to avoid bringing Covid-19 into the workplace. Also, every employer has the same responsibility to take reasonable steps to prevent an at risk employee from entering the workplace when it is discovered. Postscript: it wasn’t just Zach Plesac involved, also involved was Mike Clevinger. The actions of the two caused quite a rift. Last Friday, Cleveland Indian players scolded both of them for breaking protocol and at least one player said he would opt out of the season if the two remained on the active roster. Cleveland optioned both of the players to Cleveland’s alternate site to spend at least 10 days away from the major-league team. In fact, Cleveland went even further than that. They optioned both to the minors where they have to stay for at least 10 days beginning last Friday. It’s a significant decision by Cleveland because the players represented 2/5 of the Cleveland Indians starting rotation that currently has a major-league best 2.43 ERA. Due to the collective bargaining agreement, being sent down to the minors could have sizable repercussions on the two pitchers as well. Not helping matters at all, was a video Plesac released blaming the media for all the problems. He took down the video, but it can still be found on YouTube and other places.

 

Answer: For baseball to be played at all, it depends on the players doing the right thing. Also, very importantly, Cleveland has a code of conduct and enforced it. To my mind, this really isn’t anything different than when employers go after an employee for making derogatory comments about ethnic or religious groups while off-site and face termination as a result.

 

V

Detroit Lions Quarterback Family and the False Positive.

 

Within the last week, I read an article in the Atlanta Journal-Constitution in their today’s talker column, which we ran a piece from the Detroit Free Press, about what happened to Matthew Stafford’s family when the Detroit Lions announced that he has Covid-19 but the test was a false positive. Matthew Stafford is a former University of Georgia quarterback and so what happened to him is a matter of interest down here in Atlanta. The article talks about how Kelly Stafford, Matthew Stafford’s wife, who gave birth to the couple’s fourth child last month, described the week as somewhat of a nightmare. Even after they knew it was a false positive: their kids school told them they were not allowed back; she was approached in a grocery store and told that she was endangering others; her kids were harassed and kicked off the playground; she was told she needed to wait in her car when trying to pick up food; and people closest to them had to get tested just so they could go back to work. She blamed the NFL for not holding themselves accountable because people’s lives and livelihoods are at stake in those results. She said that, “maybe we should be absolutely positive a person has Covid-19 before releasing that information to the world.” They have four girls under the age of four and she has had her own major health battle after having brain surgery last year to have a tumor removed. She wrote that she shared her family’s experiences with the hope that it doesn’t happen the other families.

 

Answer: First, antigen testing is very unreliable and the EEOC does not recommend it as a means of taking action against an employee. The better testing is the laboratory testing but getting that turned around takes more time. Second, there are all kinds of ADA actions here for the taking against those taking action against the family and their friends based upon the false positive test. The ADA protects against those who are regarded as having a disability. For a person to be regarded as having a disability, all you have to show is that the person was regarded as having a physical or mental impairment. You do not have to show that a major life activity was substantially limited. That said if a condition is both transitory AND minor and lasting less than six months, then the regarded as prong of the definition of a disability does not apply. With respect to Covid-19, the condition may or may not be transitory and it may or may not be minor. So it is entirely possible that with respect to Covid-19, Covid-19 would land outside the exception existing under the regarded as prong. Given all that, the harassment that Kelly Stafford suffered in the grocery store may be grounds for a regarded as claim against the grocery store. Their child being kicked off the playground would also be grounds for a regarded as claim. However, question there would be who kicked the kids off the playground. Other parents? A school? Was the playground a place of public accommodation per 42 U.S.C. §12181(7)? So, the question here is over who to sue and not whether a cause of action exists. With respect to the restaurant that told her she had to wait in her car to pick up her food, I can see a regarded as claim there. While the car pickup approach may actually be a better way to do it, the person with a disability, which includes regarded as, should have the right to decide how they want to pick up their food (remember under titles II and III final regulations, direct threat only applies to direct threat to others). With respect to the friends of the family that had to get tested just so they could return to work, potential regarded as claims exist there as well, though an employer does have a right to ensure a safe working environment for its personnel. Finally, I am not sure why their child’s school is not virtual, preventing them from returning to school also creates possible ADA regarded as claims.

 

VI

Assumption of the Risk Forms

 

The August 15, 2020, Chicago Tribune, here, has an article on how many colleges are having their employees and students sign assumption of the risk forms. Colleges and universities that are doing so include: Illinois Institute of technology; Northwestern University; St. Xavier University; Illinois State University; University of Alabama; University New Hampshire; Penn State University and assuredly others. Language that is seen in such forms include: 1) “this notice is not a waiver and release by which you are agreeing not to sue the University; the notice is simply asking you to acknowledge that you received and understood the information contained in it.” “Acknowledgment of the notice allows one to access our network;” 2) “anyone returning to XYZ campus makes the decision voluntarily to assume the risk related to exposure to Covid-19 and to assume responsibility for following the rules;” and 3) language like, “the University cannot guarantee a risk-free environment and those returning the campus are doing so voluntarily.”

 

Answer: 1) While the language might encourage good public health behavior, the assumption of the risk language is certainly bad for morale and certainly does not promote camaraderie among students or among employees; 2) is there really that much of a difference between an assumption of the risk form and a waiver of liability form?; 3) depending upon your state, the assumption of the risk form even assuming it is not a waiver of liability form, may not fly. For example, in Illinois, an Illinois Supreme Court decision strongly suggests that universities insisting on the assumption of the risk form for its employees and students would not be valid. See Varilek v. Mitchell Engineering Company, 200 Ill. App. 3d 649, 558 N.E.2d 365 (Ill. App. Ct. 1990); 4) one wonders if the language would not interfere with a person with a disability rights under the ADA per 42 U.S.C. §12203(b). See also this blog entry; 5) one also wonders whether such a document would mandate a discussion of remote learning or remote working for faculty and students that are at risk or those who associate with someone at risk. If the school refused to negotiate with such an individual, that would be a strong indicator that the assumption of the risk is not voluntary; and 6) check whether your state has a Covid-19 business protection legislation. For example, Georgia does.

Today’s blog entry discusses the recent guidance from the CDC on consideration for wearing masks updated on August 7, 2020. It also discusses two different recent guidances from the EEOC on opioids. My thanks to Eric Meyer for pointing out the CDC guidance. He has an entry on it in his blog, here. The CDC guidance can be found here. Links to the EEOC guidances can be found here. With respect to the categories that this blog entry is divided into, what I will do is explore each of the guidances and then have a separate section immediately after each guidance discussing my thought takeaways on that particular guidance. So, the blog entry is best read in consecutive pairs. Of course, the reader is free to read all of the blog entry if they so desire or any part of it.

 

I

CDC Mask Guidance

 

Let’s turn to the CDC guidance unmasks first. Understanding what CDC is thinking about mask is critical because that very much informs whether a direct threat per the ADA is involved with respect to an individual that doesn’t wear it. At the very beginning of the document, the CDC lays out key bullet points and they are:

 

  • CDC recommends that people wear masks in public settings and when around people who don’t live in your household, especially when other social distancing measures are difficult to maintain.
  • Masks may help prevent people who have COVID-19 from spreading the virus to others.
  • Masks are most likely to reduce the spread of COVID-19 when they are widely used by people in public settings.
  • Masks should NOT be worn by children under the age of 2 or anyone who has trouble breathing, is unconscious, incapacitated, or otherwise unable to remove the mask without assistance.
  • Masks with exhalation valves or vents should NOT be worn to help prevent the person wearing the mask from spreading COVID-19 to others (source control).

Other salient points of the guidance include:

  1. Masks help prevent a person who is sick from spreading the virus to others. It helps keep respiratory droplets from reaching other people.
  2. People who should not be wearing mask include: children younger than two; anyone who has trouble breathing; and anyone who is unconscious, incapacitated, or otherwise unable to remove the mask without assistance.
  3. People should not wear a mask while engaged in activities causing the mask to become wet, like when swimming at the beach or a pool. When swimming, it is particularly important to maintain physical distancing from others when in the water.
  4. People engaged in high intensity activities, like running, may not be able to wear a mask if it causes difficulty breathing. If wearing a mask is not possible, focus on outdoor activity and maintaining physical distancing.
  5. Masks are a critical preventive measure and are most essential in times when social distancing is difficult. If masks cannot be used, be sure to take other measures, such as social distancing, frequent handwashing, and cleaning and disinfecting frequently touched surfaces.
  6. Masks with one-way valves or vents allowing air to be exhaled through a hole in the material can result in expelled respiratory droplets that can reach others. Accordingly, CDC is not recommending using masks with an exhalation valve or a vent.
  7. Regarding face shields:

A face shield is primarily used for eye protection for the person wearing it. At this time, it is not known what level of protection a face shield provides to people nearby from the spray of respiratory droplets from the wearer. There is currently not enough evidence to support the effectiveness of face shields for source control. Therefore, CDC does not currently recommend use of face shields as a substitute for masks.

However, wearing a mask may not be feasible in every situation for some people for example, people who are deaf or hard of hearing—or those who care for or interact with a person who is hearing impaired. Here are some considerations for individuals who must wear a face shield instead of a mas

  1. Although evidence on face shields is limited, the available data suggest that the following face shields may provide better source control than others
    1. Face shields that wrap around the sides of the wearer’s face and extend below the chin.
    2. Hooded face shields.
  3. Face shield wearers should wash their hands before and after removing the face shield and avoid touching their eyes, nose and mouth when removing it.
  4. Disposable face shields should only be worn for a single use and disposed of according to manufacturer instructions.
  5. Reusable face shields should be cleaned and disinfected after each use according to manufacturer instructions or by following CDC face shield cleaning instructions.
  6. Plastic face shields for newborns and infants are NOT recommended.

 

  1. With respect to the deaf and hard of hearing or with respect to a person caring for interacting with the person who is “hearing impaired,” those individuals may be unable to wear mask if they rely on lip reading to communicate. In that situation, the CDC recommends a clear mask. If a clear mask isn’t available, consider whether you can use written communication, closed captioning, or decrease the background noise to make communication possible while wearing a mask that blocks your lips.

II

Thoughts/Takeaways on the CDC Mask Guidance

 

  1. CDC is saying that a failure to wear a mask means that you are a direct threat to others if social distancing is not possible. As such, any entity subject to the ADA will have to do everything short of the direct threat situation to accommodate that individual.
  2. CDC is not currently recommending the use of face shields as a substitute for masks because there is currently not enough evidence to support the effectiveness of face shields for source control. That said, they shields that wrap around the sides of the wearer’s face and extend below the chin as well as hooded face shields may provide better source controls than other kinds of face shields.
  3. Whenever the guidance refers to people who are deaf or hard of hearing, a part of me goes absolutely batty for a couple of different reasons. First, a person who is deaf or hard of hearing has no problem wearing a mask absent some other kind of medical consideration. The problem is trying understand others who are wearing a mask if they are lip readers, which includes myself. Second, CDC uses the term, “hearing impaired.” In the hearing loss community, that term as a general rule drives people absolutely insane. There is nothing impaired about my hearing. I am without hearing aids someone who has a severe to profound hearing but that doesn’t make me impaired. Third, the CDC guideline doesn’t mention Deaf at all, rather it just refers to deaf. There is a world of difference between a culturally deaf individual, Deaf, and a deaf individual. A culturally deaf individual is someone who uses ASL, is medically deaf (severe to profound hearing loss), and went to a state school for the deaf. A bonus exists if you are genetically deaf. With respect to deaf, lowercase, that just means you have a severe to profound hearing loss. There is also a split among the Deaf community between ASL first and the oral deaf, who may or may not know ASL. Fourth, for the culturally deaf, written communications may not work at all. Fifth, closed captioning will work for the deaf and hard of hearing communities, but not necessarily for the culturally deaf community. Sixth, I fail to understand how it is practically possible to reduce most background noise. Finally, even hearing people have their comprehension reduced by masks that are not clear. In the speech range sounds, masks, according to my audiologist, reduce the sound by 7-12 db. Considering every three DB of sound is double the amount of sound, that is a tremendous amount of sound being reduced. If you have clear masks that meet CDC guidelines, why not use that as a default. Also, even for the culturally deaf, a clear mask is advantageous because they can see the lips and the face to help give context to the signs.

 

III

EEOC Guidance on the Use of Codeine, Oxycodone, and Other Opioids: Information for Employees

 

  1. The key to remember is that the title I of the ADA has an exception for using drugs illegally. So, if you are not using drugs illegally, you still may be protected under the ADA if you are using opioids.
  2. If you are in a MAT program for opioid addiction that requires you to take opioid medication, then under the ADA you cannot be denied a job or fired from a job because you are in such a program unless you cannot do the job safely and effectively or you are disqualified under another federal law.
  3. An employer should give anyone subject to drug testing an opportunity to provide information about lawful drug use that may cause a drug test result that shows opioid use. They can do that by asking before the test is administered whether the person takes medication that could cause a positive result or ask all people testing positive for an explanation.
  4. If you have recovered from an opioid addiction but still need a reasonable accommodation to help avoid relapse, you can get that.
  5. If there is a dispute between the employer and the employee regarding whether the employee can do the job safely, the employer must have objective evidence that the employee cannot do the job or poses a significant safety risk even with a reasonable accommodation. Those risks cannot be remote or speculative. The employer would have the right to ask the employee to undergo a medical evaluation.

IV

Thoughts/Takeaways on The EEOC Guidance On The Use Of Codeine, Oxycodone, And Other Opioids: Information For Employees

 

  1. For those who are practitioners of the ADA in the labor and employment field, there isn’t anything new in this guideline. I would have preferred if the EEOC specifically use the term direct threat rather than terms indicating the same without using the words. “Direct threat,” is a term of art and is a high standard to meet.

 

V

EEOC Guidance on How Healthcare Providers Can Help Current and Former Patients Who Have Use Opioid Stay Employed

 

  1. People with a history of opioid use or misuse may have the right under the ADA to get reasonable accommodations helping them to stay employed and in treatment.
  2. Where a patient is taking a prescription opioid to treat pain from a medical condition, the underlying medical condition likely qualifies as an ADA disability thereby giving them the right to seek reasonable accommodations.
  3. Opioid use disorder is a diagnosable medical condition likely to qualify as an ADA disability.
  4. The ADA contains an exception for people using heroin for opioid medication without a valid prescription. The ADA does not prohibit an employer from taking adverse action based upon the current illegal use of drugs.
  5. A patient with a past addiction to opioids can get a reasonable accommodation if he or she needs one because of the past addiction.
  6. When a medical professional is documenting the need for an accommodation, things the medical professional want to cover include: 1) the professional’s qualifications and the nature and length of his or her relationship with the patient; 2) the nature of the patient’s medical condition; 3) the patient’s functional limitations in the absence of treatment. That is, describing the extent the condition limits a major life activity; 4) the need for reasonable accommodations. That is, explaining how the patient’s medical condition make changes at work necessary; and 5) suggesting accommodations if the medical professional is aware of an effective accommodation.
  7. Safety concerns only justify a suspension of duties or other adverse action if the risk rises to the level of a direct threat.
  8. To decide if an employee poses a direct threat, employers need information to help them assess the level of risk posed by the disability. Things to consider include: 1) the probability the harm will occur; 2) the imminence of the potential harm; 3) the duration of the risk, and 4) the severity of the potential harm.

 

  1. In describing safety risk, any estimate of such safety risk have to be based upon the most current available medical information and should also take into account the treatment regimen and medical history of the individual being evaluated.

VI

Thoughts/Takeaways on the EEOC Guidance on How Healthcare Providers Can Help Current and Former Patients Who Have Use Opioid Stay Employed

 

  1. It is really helpful how the EEOC uses the term “direct threat,” in this publication and then also explains what it means. I wish they had done the same in their use of codeine, oxycodone, and other opioids guidance.
  2. The ADA exception applies to the current illegal use of drugs. That is an important distinction to keep in mind where people are using medications with a valid prescription. As we discussed here, current use of illegal drugs can get very complicated.
  3. Opioid use disorder is likely to qualify as an ADA disability according to the EEOC.
  4. I expect the EEOC laying out how a medical professional to deal with writing up a support for reasonable accommodation will be very helpful to medical professionals. The employer’s can make the employee’s medical professional’s job easier by giving that person a list of what are the essential functions of his or her job.
  5. “Direct threat,” is a term of art that we have discussed many times before, such as here. It is not a low standard.
  6. Always need to do an individualized analysis.
  7. Don’t forget about doing the interactive process right, which we discussed here.

Today’s blog entry is the first one that I am making on the Lexblog platform. This platform replaces my previous website and my previous blog site. All of my blog entries have been carried over. I think everyone will find this much more informative and faster. You will also have a much better idea of what is going on in my practice at a current time. For example, it is now much easier to find out what presentations I am making, new articles, etc.

 

The case of the day, Kenneh v. Homeward Bound Inc., decided by the MN Supreme Court on June 3, 2020, actually has nothing to do with disability. However, it has something to do with hostile work environment and the way such cases have been looked at in the past. I think it is worthwhile exploring because it is entirely possible that Minnesota may be starting something that will carry over to other states if not to the federal courts. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

Kenneh began working for respondent Homeward Bound, Inc., a nonprofit organization that operates residential care facilities for people with disabilities, in 2014. Kenneh transitioned to working as a Program Resource Coordinator at the Brooklyn Park location in February 2016. Shortly after she started in this new position, she met the maintenance coordinator, Anthony Johnson. Because Johnson worked at multiple sites, he was not at the Brooklyn Park location every day. Kenneh alleges that Johnson engaged in multiple incidents of sexual harassment from approximately February until June 2016. On their first encounter, Johnson complimented Kenneh on her haircut. He asked her who had cut her hair and where she lived. Although Kenneh said that her cousin cut her hair, Johnson said that he would cut her hair, at her home or at his. Kenneh was alarmed by the idea that a person she had just met would invite her into his home. Not long after their first encounter, Johnson walked by Kenneh’s office and saw her struggling to open her desk drawer. He offered to help. As Kenneh started to move out of his way, he told her that she did not need to move because he “likes it pretty all day and all night.” He also told her he liked “beautiful women and beautiful legs.” Kenneh got out of her chair to avoid contact with him. While he was working on her desk, Johnson began talking to her in a seductive tone and licked his lips in a suggestive manner. On March 24, Johnson stopped by Kenneh’s office, blocking her door with his body. Kenneh made up an excuse to leave her office to avoid Johnson. She told him that she was going to buy something to drink from a nearby gas station. In what Kenneh viewed to be a sexually suggestive tone of voice, Johnson insisted on taking Kenneh to the onsite 5 vending machine. Kenneh complied. On their way back from the vending machine, Kenneh suggested that Johnson could take some of the cake left over from a party held earlier that day. Johnson turned to look at Kenneh, licked his lips, and said in a seductive tone, “I don’t eat any of this.” When Kenneh asked Johnson what he meant, he said, “I will eat you—I eat women.” Kenneh quickly walked past him and went back to her office alone. On March 31, Kenneh was buying gas when Johnson drove up alongside her car. He rolled down the window and asked Kenneh where she was going. Kenneh answered Johnson’s questions. When Kenneh pulled out of the gas station, she noticed Johnson left immediately after her, without putting gas in his car. Kenneh told her supervisor about Johnson’s comments and conduct the following day. Her supervisor was alarmed and asked Kenneh to make a written complaint. Kenneh’s written complaint stated Johnson had been very verbally inappropriate with her and identified three specific incidents of harassment, including the desk-repair incident, Johnson’s statement that he eats women, and that Johnson followed her to the gas station. Homeward Bound placed Johnson on paid leave pending an investigation. Human Resources personnel interviewed Kenneh and Johnson, at which time Kenneh also reported their first conversation about her hair. Johnson denied that each incident happened as alleged by Kenneh. On April 11, the Director of Human Resources met with Kenneh and informed her that the investigation was inconclusive. She assured Kenneh that Johnson would receive 6 additional sexual harassment training and would be instructed not to be alone with Kenneh. The Director sent Kenneh a letter the following week repeating what they had discussed. Neither Kenneh’s complaint nor Homeward Bound’s investigation stopped Johnson’s behavior. Instead, Johnson stopped by Kenneh’s office more frequently, blocking her door with his body. Whenever Johnson would see Kenneh, he would gesture with his tongue, simulating oral sex. He continued to call her “sexy,” “pretty,” or “beautiful” every time that he saw her, despite Kenneh’s requests for him to stop. Kenneh tried to ignore Johnson but he would stand in her doorway, watching her. When she turned toward the door and made eye contact with him, he simulated oral sex with his tongue. Kenneh complained to her supervisor about Johnson’s ongoing behavior on two more occasions to no avail. On June 1, Kenneh arrived late to work and was unprepared for a meeting. When her supervisor spoke with her about her attendance, Kenneh replied that she did not want to come to work because of Johnson. On June 29, Kenneh asked her supervisor if she could return to a flex-schedule position that would allow her to avoid interactions with Johnson. Homeward Bound denied her request for a transfer and terminated her employment. Kenneh brought an action against Homeward Bound, claiming violations of the Minnesota Human Rights Act, including a claim for sexual harassment. 1 Kenneh alleged 1 Kenneh also alleged that Homeward Bound had terminated her position in retaliation for her complaint to Human Resources. The district court granted summary judgment to Homeward Bound on the retaliation claim, concluding that Kenneh failed to establish a causal connection between her complaint and any adverse employment action. The court of appeals affirmed. Kenneh v. Homeward Bound, Inc., No. A18-0174, 7 that Johnson’s conduct created a hostile work environment. The district court granted summary judgment to Homeward Bound. Stressing “the high bar” that courts have set for sexual harassment claims based on a hostile work environment, the district court reluctantly determined that the conduct alleged did not meet the severe-or-pervasive standard for actionable sexual harassment. The district court found that “[s]ome of the conduct was boorish and obnoxious” and that the statement, “I will eat you. I eat women,” was “both objectively and subjectively unacceptable.” Nonetheless, the district court determined that the conduct, “however objectionable, does not constitute pervasive, hostile conduct that changes the terms of employment and exposes an employer to liability under the Minnesota Human Rights Act.”

 

II

Court’s Reasoning

 

  1. Unlike federal law, Minnesota law specifically defines sexual harassment by statute. That definition includes unwelcome sexual advances or communication of a sexual nature when that conduct or communication has the purposes effect of substantially interfering with an individual’s employment or creating an intimidating, hostile, or offensive employment environment.
  2. Plaintiff has not presented the court with a compelling reason to abandon the severe or pervasive standard because that standard reflects a common sense understanding that when it comes to altering the conditions of employment and creating an abusive working environment, the sexual harassment must be more than minor. That is, the work environment must be both objectively and subjectively offensive in that a reasonable person would find the environment hostile or abusive and the victim in fact perceived it to be so.
  3. Severe or pervasive framework decisions from title VII does not mean that conclusions drawn by those courts are mandatory on Minnesota courts with respect to Minnesota statutes.
  4. For the severe or pervasive standard to remain useful Minnesota, the standard must evolve to reflect changes in societal attitude towards what is acceptable behavior in the workplace.
  5. Some 30 years ago, the Minnesota Supreme Court said that the essence of the Human Rights Act is societal change and the redress of individual injury caused by discrimination as a means of achieving that goal.
  6. Today, reasonable people would likely not tolerate the type of workplace behavior courts previously brushed aside as an unsuccessful pursuit of the relationship.
  7. One of the avowed public policies of the Minnesota Human Rights Act is to foster the employment of all individuals in the state in accordance with their fullest capacities. In a hostile work environment, no employee can thrive.
  8. Determining whether actionable sex discrimination exists in a given case, means examining all the circumstances around the conduct alleged to constitute sexual harassment.
  9. Court should not carve the work environment into a series of discrete incidents and then measure the harm occurring in each episode. Instead, courts and juries- the factfinders- must consider the totality of the circumstances. The totality of the circumstances includes: the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.
  10. Each case in Minnesota state court has to be considered on its facts and not on a purportedly analogized federal decision.
  11. A single severe incident can support a claim for relief.
  12. Pervasive incidents that may not be actionable when considered in isolation may yet produce an objectively hostile environment when considered as a whole.
  13. Course are cautioned against usurping the role of the jury when evaluating a claim on summary judgment. That is, summary judgment is a blunt instrument inappropriate when reasonable persons might draw different conclusions from the evidence presented.
  14. Whether the alleged harassment was sufficiently severe or pervasive so as to create a hostile work environment, is generally a question of fact for the jury.
  15. In order to remove such a question of fact from the jury on summary judgment, the court would have to determine that no reasonable jury could find the conduct at issue was severe or pervasive. If a reasonable person can find the alleged behavior objectively abusive or offensive, that claim survives summary judgment.
  16. On summary judgment, a court must accept the incidents as stated by the person not moving for summary judgment.
  17. Weighing the evidence in assessing credibility on summary judgment is error.

 

III

Thoughts/Takeaways

 

  1. Minnesota has thrown down a marker that it will not just slavishly follow title VII hostile work environment decisions.
  2. Minnesota has also said that they will not be a prisoner to history when it comes to hostile work environment claims because values of society change over time. What is a hostile work environment today is likely not the hostile work environment 30 years ago.
  3. The decision could have an impact on the statute of limitations because the Minnesota Supreme Court says that the totality of the circumstances must be considered and not each specific episode on its own. So, an argument is created that hostile work environment claims are continuing violation claims. As such, that could have a big impact on when the statute of limitations starts to run for these types of claims in Minnesota.
  4. I constantly read all kinds of cases involving summary judgments. In the world of federal litigation, summary judgment motion by the defense are automatic. Some courts seem to use summary judgment as a screening out tool to make sure that only cases a plaintiff has a good chance of winning get to the jury. The Minnesota Supreme Court is having none of it. That is in Minnesota, no reasonable jury would have to be able to find that the conduct was severe or pervasive in order for the “blunt tool,” of summary judgment to be granted by a court. In today’s world, that is a very high bar. The Minnesota Supreme Court also said that weighing the evidence in assessing credibility on summary judgment is error. Weighing the evidence in assessing credibility on summary judgment is something many courts often do. In Minnesota, they won’t allow that anymore. One wonders if the success of summary judgment motions in Minnesota by the defense regardless of the type of case, will now go down after this decision.
  5. The Minnesota Supreme Court also said that for purposes of summary judgment one has to look at what is being said by the party not moving for summary judgment and not the party moving for summary judgment.
  6. One wonders whether other states will find what the Minnesota Supreme Court says about how to look at hostile work environment claims persuasive. The timing in light of what is going on today is certainly right. It may take longer for federal courts to be persuaded considering how federal judges are appointed.
  7. You see in the case law how if a reasonable jury cannot find severe or persuasive conduct, summary judgment can be granted. However, the Minnesota Supreme Court specifically uses the term, “no reasonable jury.” It also mentioned that summary judgment motions are a, “blunt tool.” Finally, the Minnesota Supreme Court says in this decision that hostile work environment claims must be viewed through today’s lens. Accordingly, meeting the summary judgment standard in Minnesota has probably just gotten a lot more difficult especially in light of the heightened sensitivity of the world of today.
  8. Justice McKieg, who wrote the decision, is the first Native American woman on the Minnesota Supreme Court.
  9. The decision was unanimous.
  10. I am not a licensed attorney in Minnesota, though I am in Georgia, Texas, and Illinois.

I have big news to share. I have been frustrated with my blog/website set up for some time. On Friday, I will be moving all of that into one site onto the lexblog platform. So, starting at around five Eastern time on Friday and perhaps continuing through the weekend accessing my blog may be spotty. Everything that has been on the blog for the last nine years will carry over to the new site. Also, everything will be redirected to the new site. I think everyone will be really impressed by the new site. No content from the last eight years will be lost. Lexblog is a blog aggregator and they have a separate division that deals with setting up attorney blogs and websites. I am very excited, and I think everyone here will be too. Just bear with me on Friday afternoon and perhaps through the weekend.

Looking forward to continuing with Understanding the ADA on our new platform.

Before getting started on the blog entry of the day, yesterday was the 30th anniversary of the ADA. Happy anniversary!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

 

One of the things that comes up is why is the ADA such a good idea if hiring people with disabilities has remained static over the years. My response to that question is twofold. First, the ADA is more than just employment. It also includes accessing nonfederal governmental entities (title II) and accessing places of public accommodations (title III). It has another title dealing with telecommunications (title IV). Finally, it protects against retaliation and interference (title V). With respect to employment, I am convinced that one of the reasons why employment of people with disabilities has remained static is because companies simply do not understand the calculations a person with a disability goes through in deciding whether to seek accommodations. Companies also are not using best practices. I discussed all of that on the Federal Bar Association blog last week, which can be found here.

 

Today’s blog entry was a real challenge to come up with. I debated strongly between a review of Justice Gorsuch’s book, A Republic If You Can Keep It, and a recent case from the Seventh Circuit dealing with the burden of proof when it comes to figuring out whether someone is qualified to do the essential functions of a job. If it was any other week besides the anniversary of the ADA happening yesterday, I would have opted for the book review. However, since it is the day after the 30th anniversary of the ADA, I felt I had to do something related to the ADA. I will say that I figured out a way to bring Justice Gorsuch’s book into the blog entry as well.

 

Our case of the day is Kotaska v. Federal Express Corporation decided by the Seventh Circuit on July 17, 2020, which can be found here. That the decision went against the person with the disability does not surprise me. What is really interesting about the decision is a vigorous dissent was filed. As usual, the blog entry is divided into categories and they are: facts; majority opinion (Judge St. Eve); dissenting opinion (Judge Hamilton); and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

Federal Express fired the plaintiff twice from her courier job because she could not lift up to 75 pounds. First time she was limited to lifting only 60 pounds after a shoulder injury. Eventually, her condition improved so that she could lift 75 pounds to her waist. Within three weeks, Federal Express discovered her capabilities above the waist remain severely limited and dismissed her again. Plaintiff brought suit alleging the second dismissal was in violation of the ADA. The job description said that each handler or courier was expected to lift a package weighing up to 75 pounds but did not describe how high a person must lift those packages. The District Court granted summary judgment for Federal Express and plaintiff appealed.

 

II

Majority Opinion (Judge St. Eve)

  1. At summary judgment, the plaintiff has the burden to provide evidence that a rational jury could find her to be a qualified individual.
  2. Whether a function of the job is an essential one is a question of fact and not law.
  3. A court is obligated to consider the employer’s judgment and to consider a job description of evidence of the job’s essential functions, but the employer’s judgment is not absolute. Other factors include: the amount of time spent on a function; the experience of those who previously or currently hold the position; and the consequences of not requiring the employee to perform the function.
  4. The parties agree that lifting packages, including above the waist and shoulders, is an essential function of a handler.
  5. A rational jury could find that the essential functions of a handler do not include lifting a 75 pound package overhead.
  6. To be a qualified individual, an employee if he or she is unable to perform a given function, must show that there is a dispute whether that function is essential.
  7. Federal Express consistently asserted that its handlers need to lift packages weighing up to 75 pounds over the waist and overhead, which plaintiff cannot do.
  8. Plaintiff has the burden of persuasion on the question of whether he is a qualified individual.
  9. It is the plaintiff’s burden to provide evidence (emphasis added), to persuade a rational factfinder that she can perform the job’s essential functions.
  10. A reasonable factfinder simply could not find that the plaintiff could lift up to 75 pounds above her waist if needed. Considering plaintiff’s height, 5’2”, many packages would have to be lifted above her waist and shoulders.
  11. The ADA does not obligate an employer to let its employees exceed their doctor’s restrictions even if the employee thinks he or she can.
  12. The capacity to respond to rare events can still be an essential function of the job.
  13. A person on the job for just three weeks cannot be said to have established a sufficient amount of time to to find him or her to be a qualified individual. What is a sufficient amount of time will vary from case to case.
  14. With respect to retaliation, close timing of the adverse action alone is rarely enough to raise a viable claim of retaliation. That is, there has to be other circumstantial evidence of retaliation. That plaintiff’s restrictions had not changed enough since the first dismissal was the non-retaliatory reason for the second dismissal.

 

III

Dissenting Opinion (Judge Hamilton)

  1. Federal Express conceded on appeal that its stated reason for firing the plaintiff, an inability to lift 75 pounds over her waist and even overhead, was wrong. Such heavy overhead lifting is not required.
  2. The majority opinion flipped the burden of production on essential functions to the plaintiff from the defendant.
  3. Judge Hamilton has not seen an ADA case before where the employer did not come forward with evidence needed to establish the essential functions of the job, but the majority opinion holds the absence of that evidence against the plaintiff.
  4. It is well established that the employee bears the ultimate burden of proving that he or she is capable of doing the essential functions of the job with or without reasonable accommodation. However, the employee should not bear the burden of producing evidence of what the essential functions are because that information is most readily available to the employer and not to the employee. Accordingly, the ninth, eighth, first, and sixth Circuits all have held that once an individual with a disability contends that a function is nonessential, the burden shifts to the employer to prove that it is an essential function of the job. Implicit in these cases is the expectation that the employer will meet the burden of what the essential functions of the job are by producing evidence.
  5. If the proper burden of proof is followed in this case, plaintiff refuted the employer’s version of the essential functions and presented evidence that she could do the job.
  6. The majority’s focus on up to 75 pounds allows an employer to not have to define essential functions of the job with any specificity. Instead, the employer can state the function at the highest level of generality and leave the plaintiff with the burden of establishing the specifics of the job for she then has to show that she can do it. If that is the case, the burden of production become trivial. Evidence about essential functions must provide meaningful and specific guidance about what the job entails. Otherwise, an employer’s description of the essential functions of the job provides no useful guidance.
  7. Giving the shelving and packaging containers that handler’s work with, Federal Express should have had to present evidence of how much weight handler’s must lift above their waist, above the shoulders, and above their heads.
  8. Discredited evidence should not be sufficient to shift the burden of proof to the plaintiff come forward with evidence of the real details of the job’s essential functions.
  9. While it is true that under the ADA an employer’s job description or other assertions are entitled to substantial but not conclusive weight in identifying a job’s essential function, employers must also describe the essential functions with enough specificity to tell the employee and the courts what the job entails.
  10. The employer’s description of the job functions must surely be at least plausible and not be vague and unbelievable assertions like the ones abandoned by Federal Express in this case.
  11. It is so obviously appropriate for the employer to carry the burden of production when it come to the essential functions of the job.
  12. To combat Federal Express’s strategy employed in this case, future plaintiff can protect themselves by insisting in discovery at the very outset of the case that the employer specify in detail the essential functions of the relevant job and then support those claims with evidence. An employer who has fired someone or denied an employment application for inability to perform essential functions should be able to answer such an interrogatory immediately.
  13. The evidence supports an inference that Federal Express’s managers were not honest in dealing with the plaintiff’s abilities in 2015.
  14. The evidence certainly supports an inference that the manager bungled the case. At best, Federal Express was confused about how the job was actually done and what abilities it actually requires. It is only by departing from summary judgment standards, speculating in favor of the defendants, and discounting evidence from the plaintiff and her coworkers that one could find that Federal Express had a legitimate basis for firing the plaintiff.
  15. It is not the province of the District Court to propose its own set of essential functions not offered by Federal Express.
  16. If the relevant frequency and weight information is material to deciding essential functions, then Federal Express had the burden of producing it. It is improper, impractical, and unfair to require the employee to describe in minute statistical detail the operations of an employer.
  17. Presumptions shifting the burden of proof are often created to reflect judicial evaluations of probabilities and to conform with the party’s superior access to the proof.
  18. When a party files a motion for summary judgment raising ground A, the District Court erred by granting on ground B, which the moving party could have raised but did not.
  19. Federal civil motion practice is expensive and burdensome enough when the party opposing a motion needs to respond to the moving party’s actual arguments. That should not be expanded to offering evidence to rebut any arguments the moving party might have made.
  20. The majority opinion is correct that evidence that might be used to prove that the job required lifting 75 pound overhead could also be used to show that the plaintiff had to lift some lower amount overhead. However, Federal Express made no such argument to the District Court.
  21. The majority opinion also erred by drawing inferences in favor of Federal Express rather than the plaintiff, which is improper on a defense motion for summary judgment.
  22. The logic of the majority opinion suggests that an employer can establish that an employee is not a qualified individual by showing that an individual with a disability works within her limits rather than beyond them and that is perverse. Under this logic, an employee who can do the job and has done the job could be removed based upon mere speculation. The ADA was enacted in large part to prevent discrimination against people with disabilities who can actually do their job.
  23. The majority’s speculation that plaintiff would encounter a package is too heavy for her is contradicted by the evidence from the plaintiff and her coworkers and supervisors that she was handling the job successfully.
  24. Evidence about how jobs are actually performed is sufficient to create a genuine dispute of fact.
  25. Federal Express offered no evidence to the effect that the job varies so much that three weeks are not a reasonable test of the ability to do the work. The majority’s speculation to the contrary is no substitute for such evidence.
  26. The plaintiff offered evidence that the Federal Express decision-makers not only knew about her earlier protected activity but took the entire episode into account in deciding what to do with her the second time around. When that is combined with federal Federal Express’s hasty, confused, and even dishonest decision to fire her without actually reviewing her new medical restrictions without even talking with plaintiff or supervisors, a jury could easily find a retaliatory motive.

 

IV

Thoughts/Takeaways

  1. The majority opinion when it talks about the burden of production and the burden of persuasion is very confusing. On the one hand, in the text of the opinion it clearly talks about how the burden of production about essential functions of the job are on the employee. On the other hand, in a footnote it seemed to cite with approval a decision saying that the burden of production for essential functions is on the employer and the employee has the burden of persuasion. Reading the text of the opinion one can understand how Judge Hamilton was of the strong opinion that the majority opinion had shifted the burden of production when it comes to essential functions.
  2. Part of the dissenting opinion almost seems to be written with Justice Gorsuch in mind. If you read his book, A Republic If You Can Keep It, he is no fan of how complicated the civil discovery system has come to be. He might be very sympathetic to the argument about how a plaintiff should not be penalized for an employer’s shifting litigation positions. He certainly, as discussed below, would be very receptive to claims that a judge came up with a theory of a decision that was not based upon any of the arguments made by either party.
  3. Three weeks not being long enough to establish whether a person is qualified to do a job per the ADA is extremely problematic. It simply should not matter how long a person is in the job, especially if the plaintiff can with testimony and other evidence show how that job is done. Assuming an employer has 15 or more employees, the ADA applies the minute that person starts a job.
  4. I am not sure I would be terribly optimistic about an en banc review by the Seventh Circuit, though it might be worth a try.
  5. People with disabilities have not done well at all at the Supreme Court with respect to employment matters. So normally I would say if you are a person with disability, you do not want to bring an employment claim to the United States Supreme Court. However, the dissenting opinion is very interesting. As mentioned above, there are a couple of aspects of that dissenting opinion that could appeal to Justice Gorsuch (in the prologue to one of his chapters in the book, he also states that he is a big believer in equality for all). Also, while Justice Roberts has often been termed a corporatist, he also has demonstrated sensitivity to people with disabilities. While the majority opinion is a bit confusing with respect to whether it is changing the burden of production, the plain reading of its text suggests that it did. If so, that creates a Circuit Court split.
  6. If the Democrats sweep the House, Senate, and the Presidency in November, might you see legislation specifying what the burden of proof is with respect to essential functions of the job?
  7. One of the mistakes made by Federal Express here is focusing on a task rather than on functions. The function of the job is moving packages safely from the truck to wherever the package is getting delivered. How the person accomplishes that isn’t the point. On the employer’s side, it would be wise to keep in mind that tasks are not the same as function if you don’t want to run into unnecessary litigation.
  8. Judge Hamilton flat out tells plaintiff’s attorneys that whenever dealing with essential functions of the job, they need to have an interrogatory pinning down the employer, complete with supporting evidence, as to what the essential functions of the job are.
  9. Another aspect of the dissenting opinion that might appeal to Justice Gorsuch is how the majority opinion takes a broad view of its discretion when it comes to deciding summary judgment motions. Justice Gorsuch is a big fan of jury trials and is not at all happy with summary judgment practice. From reading his book, I don’t believe he would say that the role of the judge is to screen out cases by the summary judgment motion. Instead, you have to be looking at whether a genuine issue of material fact exists. Also, he does specifically say in his book that it is not up to the judge to come up with his or her own arguments one way or the other as to why a particular party will prevail. Judges in his opinion are limited to what the parties argue.
  10. The rational jury standard varies quite a bit in its application from judge to judge and from Circuit to Circuit.
  11. Essential functions of the job are a question of fact and not law. Of course, that doesn’t answer the question of where is the burden of production for determining essential functions of the job.
  12. Always a good idea to engage in the interactive process before termination and be sure to get it right at discussed here.