Articles Posted in ADA

Lev Craig

The U.S. District Court for the Eastern District of Pennsylvania recently refused to dismiss Kate Lynn Blatt’s gender and disability discrimination claims in Blatt v. Cabela’s Retail, Inc. Blatt, a transgender woman, brought suit against her former employer under Title VII of the Civil Rights Act of 1964 (Title VII) and the Americans with Disabilities Act (ADA), alleging that Cabela’s had discriminated against her based on her gender identity and her diagnosis of gender dysphoria.

Being transgender does not necessarily involve a diagnosis of gender dysphoria. Whereas a transgender person is someone whose gender identity differs from the sex that they were assigned at birth, gender dysphoria is a condition recognized by the American Psychological Association (APA), characterized by a “marked difference between [an individual’s] expressed/experienced gender and the gender others would assign [them],” which is present for at least six months and “causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.”

Harrison Paige

On April 4, 2017, in Vasquez v. Smith’s Food & Drug Centers, Inc., the U.S. District Court for the District of Arizona denied summary judgment on Juanita Vasquez’s disability discrimination and retaliation claims under the Americans with Disabilities Act (“ADA”). Vasquez alleged that that Smith’s Food & Drug Centers (“Smith’s”) had discriminated against her based on her disability by failing to accommodate her fibromyalgia and terminating her for her use of a previously approved accommodation. The court found that disputes of material fact remained which required that the case proceed to trial.

In 2009, Vasquez, a 17–year Smith’s employee, was diagnosed with fibromyalgia, a chronic condition which causes musculoskeletal pain, fatigue, disordered sleep, and memory and mood problems. Vasquez’s primary care physician completed a “Medical Accommodation Questionnaire” to submit to Smith’s after her diagnosis, stating that Vasquez could not stand for more than two hours, lift over ten pounds, or bend and stoop frequently. These restrictions disqualified Vasquez from working in certain positions at Smith’s, such as cashier roles, but Frank Orozco, the store manager at Vasquez’s location at the time, assigned her to work as a courtesy clerk and administrative secretary to accommodate her disability-related limitations.

By Shelby Krzastek and Lev Craig

On May 17, 2016, the Medical Marijuana Act (MMA) took effect in Pennsylvania. The MMA allows patients with certain serious medical conditions—including HIV/AIDS, autism, cancer, and post-traumatic stress disorder—to use marijuana in pill, oil, vapor, liquid, tincture, or topical form to treat their symptoms. Once the MMA is fully implemented in early 2018, Pennsylvania residents with an approved medical condition will be able to apply for a medical marijuana ID card issued by the Pennsylvania Department of Health, which will allow them to legally obtain marijuana for medical use. While the MMA has received praise from many Pennsylvania residents, the act also creates new challenges for employees who become certified to use medical marijuana under the MMA.

Although a growing number of states have legalized marijuana use, marijuana remains illegal under federal law, where it is classified as a Schedule I controlled substance under the Controlled Substances Act. Because marijuana is illegal under federal law, employers are not required to allow employees to use medical marijuana as a reasonable accommodation under the Americans with Disabilities Act. In addition, workplaces that are federally mandated to be drug-free—such as federal contractors and certain safety-sensitive industries—require employees to report positive marijuana test results, even if an employee’s use of marijuana is for medical purposes. As a result, if an employee tests positive for marijuana use, the employer may terminate the employee for failing to comply with drug-free workplace policies.

Shelby Krzastek

Bill Brown alleges that Stevens Transport, one of the four largest refrigerated trucking companies in the United States, refused to hire him as a truck driver because he takes medication to control his bipolar disorder. On November 30, 2016, the U.S. Equal Employment Opportunity Commission (EEOC) filed suit in U.S. District Court for the Northern District of Texas on Mr. Brown’s behalf.

Mr. Brown applied for employment as a driver with Stevens Transport in March 2015. Stevens Transport told Mr. Brown they would not hire him as a truck driver because he regularly took a certain medication to manage symptoms of bipolar disorder, due to a a company policy prohibiting drivers from taking medications including Lexapro, Zoloft, Paxil, Celexa, and Latuda. Mr. Brown objected, as he had fulfilled a course in advanced truck driving and passed the Department of Transportation (DOT) physical that is required to hold a commercial driver’s license (CDL). Mr. Brown claims that neither Stevens Transport nor its physician made an individual assessment of him, as required by the Americans with Disabilities Act (ADA). Mr. Brown’s medical provider issued a report stating Mr. Brown was capable of driving safely while on medication. No U.S. DOT regulations prohibit people who take medication for bipolar disorder from commercial truck driving.

Lev Craig

In Moebius v. TharpeRobbins Co., Matthew Moebius brought wrongful termination and disability discrimination claims against his former employer, TharpeRobbins, under the Americans with Disabilities Act (ADA) and Massachusetts state law, alleging that TharpeRobbins had discriminated against him because of his severe depression. The U.S. District Court for the District of Massachusetts recently denied TharpeRobbins’ motion for summary judgment. In its November 1, 2016 order, the court found that triable questions remained as to whether Moebius’s depression substantially limited a major life activity, whether TharpeRobbins had failed to provide Moebius with a reasonable accommodation, whether Moebius had been terminated because of his disability, and whether TharpeRobbins’ proffered legitimate, non-discriminatory reasons for Moebius’s termination were pretextual.

For over seven years, Moebius worked as a senior network engineer for TharpeRobbins, which develops and provides software programs designed to measure and reward employee performance. In late 2013, Moebius began experiencing symptoms of severe depression related to his recent divorce. Moebius alleges that, around this time, he began using more paid time off due to his depression and asked on two occasions if he could work from home as an accommodation. However, Moebius’s supervisor prohibited him from doing so and required him to be physically present in the office to manage other employees and maintain servers. Moebius’s attendance began to grow worse, and in September 2014, he was terminated, purportedly for unsatisfactory performance.

Lev Craig and Edgar M. Rivera, Esq.

Determining a school’s liability in a student suicide case is a fraught and complex issue: While plaintiffs argue that schools should make more significant efforts to prevent a student’s suicide—especially since many student suicides are caused by repeated incidents on school campuses, like severe peer bullying—courts have generally been reluctant to impose new or heightened duties on school counselors.

In 1991, the Maryland Court of Appeals in Eisel v. Board of Education of Montgomery County was the first court to hold that school officials may have a legal duty to try to prevent a student’s suicide. In Eisel, a wrongful death and survival action, a 13-year-old girl committed suicide after telling school counselors that she intended to kill herself.  Citing the in loco parentis doctrine—which requires a person or organization, such as a school, to take on some of the functions and responsibilities of a parent—the court concluded that “school counselors have a duty to use reasonable means to attempt to prevent a suicide when they are on notice of a child or adolescent student’s suicidal intent.”

Lev Craig and Edgar M. Rivera, Esq.

When Philip Sullivan decided to apply for a warehouse job at Grisham Farm Products, Inc. (Grisham), he learned that Grisham required all applicants to complete a 3-page “Health History” as part of their employment application. This form asked applicants to respond to 43 questions concerning their medical histories, including whether they had consulted with a healthcare provider in the past 24 months or suffered from specific medical issues, such as heart conditions, depression, and sexually transmitted infections, among others.

As Mr. Sullivan has disabilities, he was worried that his answers would reveal them and thus negatively impact his chances in the hiring process; therefore, he decided not to apply for the job and instead contacted the Equal Employment Opportunity Commission (EEOC). The EEOC sued Grisham on his behalf, alleging violations of the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act of 2008 (GINA). The ADA prohibits employers from inquiring into a person’s medical history before making a conditional offer of employment, and GINA prohibits employers from requesting genetic information from job applicants.

Yarelyn Mena and Edgar M. Rivera, Esq.

Courts in the United States generally recognize that marijuana use is a legitimate reason to terminate an employee. However, with an increasing number of states now legitimizing both recreational and medical marijuana use, employers and employees alike are left with uncertainty as to the potential repercussions of marijuana use with respect to employment.

Twenty-three states and the District of Columbia have legalized medical marijuana. In addition, in some states, including Arizona, Connecticut, Delaware, Illinois, Maine, Minnesota, Nevada and New York, an employer cannot take an adverse action against an employee simply because of his or her participation in a recognized medical marijuana program. Medical marijuana use also implicates federal and state disability laws. Additionally, a medical marijuana user may be considered disabled if he or she has a disability under the Americans with Disabilities Act (ADA) or similar state statutes. While the ADA itself does not require an accommodation based on marijuana use, it does require other accommodations related to a covered disability. As such, if an employee tests positive for marijuana, the employer should ask the worker to verify that he or she is a participant in a recognized medical marijuana program.

Edgar M. Rivera, Esq.

On March 17, 2016, in Graziadio v. Culinary Institute of America, the Second Circuit articulated the test for an employee-employer relationship with respect to Family and Medical Leave Act (“FMLA”) claims and clarified the standards for establishing prima facie cases in FMLA interference claims, FMLA retaliation claims, and association-disability claims under the Americans with Disabilities Act (“ADA”).

Cathleen Graziadio worked as a Payroll Administrator at the Culinary Institute of America (the “Institute”). On June 6, 2012, she took a leave under the FMLA to care for one of her sons who suffers from diabetes and took additional leave on June 27 when her other son broke his leg. The Institute took issue with the paperwork supporting her second FMLA leave and refused to allow her to return to work until she provided new documentation. Soon after, communication between Ms. Graziadio, Shaynan Garrioch—the Institure’s Director of HR—and Loreen Gardella—Ms. Graziadio’s supervisor—broke down, resulting in the Institute terminating Ms. Graziadio’s employment for abandoning her job.

Yarelyn Mena and Edgar M. Rivera, Esq.

On April 20, 2015, the Equal Employment Opportunity Commission (EEOC) issued a notice of proposed rulemaking (NPRM) addressing employer wellness programs that are part of a group health plan and its relation to Title I of the Americans with Disabilities Act (ADA).

A wellness programs is an employee health program that “is reasonably designed to promote health or prevent disease.” Many employers offer wellness programs in the form of programs and activities, typically through employer-provided health plans, to maintain and improve employee health as well as to reduce health care costs. While some wellness programs only ask employees to engage in healthier behavior, such as by encouraging exercise or quitting smoking, legal issues arise when a wellness programs seeks employees’ medical information, require employees complete a health risk assessment, or require employees undergo screening for health risk factors.