The Facts

The plaintiff in this case was an employee living with a physical disability. She had taken several leaves of absence, including one that lasted over one year. According to the employer, the employee indicated that she did not know when she could return to work, nor did she contact her doctor. Eventually, the employer terminated the employee. In response, she brought a lawsuit alleging disability discrimination, failure to provide a reasonable accommodation, and wrongful termination, among other claims.

She also alleged a failure to engage in the interactive process, which refers to a conversation between the employer and employee to arrive at reasonable accommodations for the employee’s disability. At trial, the judge read special instructions to the jury, which stated that an employer did not have to provide an indefinite leave of absence as a reasonable accommodation. When a juror asked if an employee could be terminated if they are “fully disabled,” the court said yes and referred them to the jury instructions. The jury then found in favor of the employer, and the employee appealed.

The Appeal

On appeal, the employee challenged the jury instructions and the court’s response to the juror’s question. She argued that they gave the jury the false impression that she was “fully disabled,” a term that lacked legal meaning and prejudiced the jury toward the defense. Additionally, she claimed the jury instructions incorrectly stated the law, arguing they made no reference to the employer’s burden of demonstrating that indefinite leave would impose “undue hardship.”

The appeals court disagreed. First, the employer did not asset an undue hardship defense, nor was it required to do so under California’s Fair Employment and Housing Act (FEHA). Therefore, providing jury instructions on undue hardship would have been inappropriate. Moreover, the court cited a previous case holding that indefinite leave was an unreasonable accommodation as a matter of law. Because an accommodation does not have to present an undue hardship to be unreasonable, the trial court did not err in its jury instructions to that effect.

Additionally, the appeals court found the court did not err in answering the juror’s “fully disabled” question. Here, it noted that the trial court’s answer did not imply that the employee was “fully disabled.” Instead, it merely stated that an employer could terminate a fully disabled employee in general. The court thus properly responded to the juror’s question. Accordingly, the appeals court affirmed the jury’s verdict in favor of the employer.

If you are seeking to hold an employer liable for failing to provide reasonable accommodations, contact the Hardin Law Group for assistance.

Recently, a California court confirmed that employers have the option of continuing zero-tolerance approaches to drugs, marijuana included. Specifically, employees may be disciplined or terminated for marijuana use (despite state statutes prohibiting discipline for engaging in lawful activity outside of work) and employers need not accommodate medical marijuana use as a disability-related condition.

Cases around the country show that this holds true even if the employee is:

• A paraplegic trying to alleviate pain (Curry v. MillerCoors, Inc.);
• Subject to pain from injuries sustained in the armed forces for which marijuana is the only effective resort (Ross v. Raging Wire Telecommunications, Inc.);
• Unable to eat due to anxiety, nausea, and other symptoms without marijuana (Emerald Steel Fabricators v. Bureau of Labor and Industries);
• Treating an inoperable brain tumor with marijuana (Casias v. Wal-Mart Stores, Inc.).

So what is a California employee to do? Because marijuana remains illegal under federal law, it does not have the same status as other prescription drugs (e.g., Valium, Xanax, etc.). Technically, an employer has no duty to accommodate illegal drugs under the ADA (including the medical use of marijuana).

The takeaway? Until marijuana becomes legal under federal law or until California statutes explicitly address medical marijuana in the workplace, employers have the option to continue to ban users of that drug. For assistance in analyzing the legality of medical marijuana in California workplaces, contact the experienced Orange County employment attorneys at Hardin & Associates today.

While under the ADA, an employer does not have to provide a reasonable accommodation for the employee if doing so would create an undue hardship, it is best to discuss your situation with an experienced Orange County employer lawyer if your request for an accommodation has been denied by your employer.

The following factors determine whether an accommodation creates an undue hardship:

• The nature and cost of the accommodation;
• The financial resources of the employer (a larger, more successful business can usually afford to do more than asmaller one);
• The nature of the business, including size, composition, and structure, and;
• The accommodation costs already incurred in the workplace.

If you, the employee, feel that your Orange County employer has discriminated against you because of your medical disability, you may be able to bring a discrimination lawsuit. The U.S. Equal Employment Opportunity Commission (EEOC) is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of a disability. Most employers with at least 15 employees are covered by EEOC laws, as are most labor unions and employment agencies.

If you are an employee with a disability that requires employer accommodation, discuss your next steps with an experienced Orange County employment lawyer at Hardin & Associates today.

The professor, employee of the John Marshall School of Law in Chicago since the mid-1980s, filed an ADA lawsuit in federal court seeking a removal of his suspension, lost wages, and emotional distress damages. Cornwell also filed a breach of contract claim unrelated to his ADA claim.

According to the complaint in the case, the professor was first was suspended from his teaching duties after engaging in an angry exchange with a member of the school’s maintenance staff. Following an examination from a medical professional, he was permitted to return to his professorship a few months later. In his suit, the professor claims that the medical professional confirmed that he was suffering from depression and Asperger’s syndrome.

What is ‘Failure to Accommodate’ under the ADA?

The basis of the professor’s ADA claim is that the John Marshall Law School failed to accommodate his depression and Asperger’s syndrome following his return to teaching and at this point, they should have been aware of his disability. The professor “requested that the school appoint a mental health professional to facilitate his communications with colleagues and superiors” and “later requested a faculty mentor”, but apparently, neither request was granted. Not long after, the professor was involved in another verbal incident, this time involving two students. As an apology, the school required the professor read a pre-written apology in front of the class.

As we have discussed in other blog posts, the ADA is a federal civil rights law that seeks to prohibit discrimination on the basis of disability. The professor claims that the school’s failure to accommodate his requests is in violation of the ADA and that his request for the school to appoint a liaison to facilitate his interactions with colleagues and superiors was necessary because of his disability, which makes it difficult for him to read social cues and impairs social interactions.

Is a mental or emotional disorder covered under the ADA?

Does a mild form of Asperger’s combined with depression fit the criteria for ‘disability’ as defined by the ADA? And how does a potential mental disability affect your business’s approach with its employees?

For answers to these and other ADA related questions, contact the experienced Orange County employment disability attorneys at Hardin & Associates today.

According to the ADA, employers are required, under certain circumstances, to reasonably accommodate an employee’s physical or mental impairment that limits a “major life activity” for that employee. One way in which employees have sought to be accommodated is by obtaining leaves of absence from their jobs in order to accommodate their disability. This can result in a conflict between employee and employer. Whereas an individual with a disability may feel a leave of absence is crucial to his or her health and well-being, employers often feel that extended leaves of absence are too disruptive to their business operations, and therefore not “reasonable.” Discuss your rights as an employee with an experienced ADA lawyer in Orange County.

While a leave of absence can certainly be a reasonable accommodation, the ADA does not provide specific guidance on the issue. However, the Equal Employment Opportunity Commission (abbreviated “EEOC”) has taken the position that an employer cannot terminate an employee simply because the employee is unable to return to work for a given period of time. Instead, the EEOC has stated that it views such policies (which would allow for terminating an employee for taking a leave of absence) as violations of the ADA’s requirement that each employer treat requests for reasonable accommodations on an individualized basis.

In the EEOC’s guidelines, it specifically states that an employer may not apply a “no-fault” leave policy, under which employees may be terminated after they have been on leave for a certain period of time, to employees with disabilities who require leave beyond a set period. Furthermore, in order to take such action the employer must show that (1) there is another effective accommodation that would enable the person to perform the essential functions of his/her position, or (2) granting additional leave would cause an undue hardship. Additionally, the EEOC states that an employer must hold open an employee’s job during his or her leave of absence as a reasonable accommodation. In other words, an employee with a disability is entitled to return to his or her same position upon returning from a leave of absence, unless the employer demonstrates that holding the position open would impose an undue hardship upon the employer.

As the EEOC’s guidance demonstrates, the protections available to employees covered by the ADA extends beyond the plain text of the ADA. Make sure that you are familiar with these intersections of federal law. Contact the experienced Orange County employment lawyers at Hardin & Associates to learn more.

For example, in order to establish a claim under the ADA for workplace discrimination, an individual with a disability must allege certain facts, or elements. First, the employee must show that he or she has a disability. An individual with a disability, as defined by the ADA, is someone with a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such impairment, or a person who is perceived by others as having such impairment. Second, the employee must show that he or she is qualified (with or without a reasonable accommodation) to perform the functions of the job in question. Lastly, the ADA plaintiff employee must show that he or she suffered discrimination based on his or her disability.

The second part to establishing an ADA claim was the recent focus in the case Dinse v. Carlisle Foodservice Products, Inc. Douglas Dinse, a product engineer for Carlisle Foodservice Products, brought a case against his former employer when he was terminated for poor performance allegedly caused by his serious health issues. Mr. Dinse sued his employer under the ADA, claiming that he was discriminated against because his employer failed to provide him with reasonable accommodations for his serious illness.

The court found that in order to trigger an employer’s duty to provide reasonable accommodations under the ADA, the employee must first make an adequate request for a reasonable accommodation. The request is meant to put the employer on notice that the employee is disabled and desires an accommodation. While Mr. Dinse had requested a laptop to perform his work while he recovered from surgery, he did not fully indicate that this request was connected to his disability. Since the outcome was that Mr. Dinse did not make an adequate request for accommodation, his ADA case was thrown out.

For those with a disability, the lesson in Dinse is to be fully aware of the elements of your legal claim prior to filing a lawsuit and make sure that your employment lawyer understands the nuances of the ADA. An attorney with experience in ADA litigation can advise you on the appropriate steps to take when seeking a reasonable accommodation with your employer, as well as what steps to take if you feel you have been discriminated against for your disability.

For more information on issues relating to the ADA, contact the experienced Orange County ADA lawyers at Hardin & Associates today.

What does it mean to telecommute?

Telecommuting is often called a few things, including remote work, or telework, and involves is a work arrangement in which employees do not commute to a central place of work. A person who telecommutes is known as a “telecommuter”, “teleworker”, and sometimes as a “home-sourced,” or “work-at-home” employee.

When must an Orange County employer allow an employee to work at home or “telecommute” due to a disability under the Americans with Disabilities Act (ADA)?

Generally speaking, if an employee is suffering from a disability and it makes reasonable sense for the employee to telecommute, you may have a cause of action against your employer if he refuses to accommodate your medical disability. Recently, the Equal Employment Opportunity Commission, the agency of the United States Government that enforces the federal employment discrimination laws, had a few things to say about whether your employer needs to allow you to telecommute. From the EEOC’s perspective, allowing an employee to telecommute is a reasonable accommodation (even if your company does not have a telecommuting policy). Of course, the issue now turns on determining whether telecommuting is reasonable under the circumstances.

According to the EEOC, employers need to consider several factors when determining whether telecommuting is a reasonable accommodation for a disability. For more information on whether telecommuting is a reasonable accommodation, contact the experienced Orange County employment lawyers at Hardin & Associates today.