In a significant case involving an employer’s obligation to transfer a disabled employee, who cannot perform the essential functions of the employee’s current position, to an open, vacant position, the Fifth Circuit Court of Appeals held that an employer’s policy of hiring the most qualified candidate to fill vacant positions need not be ignored by
Americans with Disabilities Act
Has the Expanded Definition of Disability under the ADAA Gone Too Far?
Daniel Schwartz at the Connecticut Employment Law Blog has an interesting post today about the effect the American Psychiatric Association’s proposed changes the Diagnostic & Statistical Manual could have to the Connecticut body of disability discrimination law. While Connecticut is unique, according to Schwartz, in its definition of disability and expressly includes mental conditions listed in…
Court Finds, in Pre-ADAA Case, that Employee with Diabetes Not Disabled
In a recent pre-ADAA case, the Fifth Circuit Court of Appeals held that a former UPS employee’s limitations caused by Type II diabetes were not disabling and that UPS did not fail to provide reasonable accommodation to a known disability. Despite the fact that this case was based on pre-ADAA law, there are still some useful…
Large Texas Employer Announces it Will Not Consider Applicants for Employment Who Use Products with Nicotine
One of North Texas’ largest employers announced that it will not longer hire or consider for hire any individual who uses any nicotine product (i.e., cigarettes, nicotine gum or patches, chewing tobacco or electronic cigarettes). Baylor Health Care Systems announced its new policy on the careers page of its website stating:
Transitioning HR Professionals –Look to Verizon for Employment
Verizon agreed to pay $20 million dollars and ceasing using its no-fault attendance policy for absences caused by impairments qualifying as disabilities under the ADAAA. Whatever the size of Verizon’s Human Resources Department, it looks like its going to need to be a lot larger.
As part of the settlement with the EEOC, Verizon agreed that…
EEOC Takes Hog-Like Approach on Attendance as Essential Job Function
There’s an old saying in rural America that "pigs get fat and hogs get slaughtered." We used the phrase to describe someone who, instead of being satisfied with what he has, gets greedy. In the litigation context it can be used to describe a party that takes overly aggressive, unreasonable and untenable positions. My fellow bloggers, Work Blawg…
Could the EEOC Sue on Behalf of an Employee Who Wanted the Right to Masturbate at Work?
There has been a lot of ink spilled and kilobytes written about how the ADA Amendments Act has substantially expanded the rights of individuals with disabilities to seek and obtain reasonable workplace accommodations. (See post, post, post, and post). The increase in the number of applicants and employees who qualify for reasonable accommodations and…
Last Rites for Neutral Absence Control and Maximum Duration of Leave Policies?
For more than 15 years Texas employers have used the application of uniformly enforced neutral absence control policies setting a maximum duration an employee can be away from work as a defense to workers’ compensation retaliation claims. The defense was first solidified by the Supreme Court of Texas in in its 1996 Continental Coffee Prod. v. Casarez case. See…
EEOC Publishes Proposed Regulations Designed to Implement Amendments to the Americans with Disabilities Act
The EEOC recently published proposed regulations designed to implement provisions of the ADA Amendments Act (ADAAA). The proposed regulations incorporate significant changes to the law and provide numerous illustrative examples. A full copy of the proposed regulations can be accessed here. The following sections summarize some of the significant points.
Presumptively Disabling Impairments
The proposed regulations…
Being Chronically Tired May Qualify as a Disability in Texas
A federal appellate court with jurisdiction over Texas held that chronic fatigue syndrome (CFS) may qualify as a disability under the Americans with Disabilities Act. According to the Centers for Disease Control, CFS is characterized by symptoms including weakness, muscle pain, impaired memory and/or mental concentration, insomnia, and post-exertional fatigue lasting more than 24 hours. There is no known diagnostic test for CFS and physicians are left to rely on forensically unreliable self-reports of the patient to make this diagnosis. Notwithstanding this inability to test for or confirm the existence of this "syndrome," the federal court of appeals covering Texas held that CFS might qualify as a disability that an employer must reasonably accommodate.
In EEOC v. Chevron Phillips Chemical Co., L.P., the Fifth Circuit Court of Appeals reversed a summary judgment in favor of Chevron on an employee’s claim that she was discriminated against and denied reasonable accommodation for her chronic fatigue syndrome.
The employee, Lorin Netterville, was first diagnosed with CFS in 1987 while attending school and caring for her children at home. She received a six-week course of treatment and her symptoms disappeared. In late-2000 Netterville applied for employment with Chevron and was eventually hired. As part of the employment process Netterville completed a medical history questionnaire, where she failed to disclose a history of excessive fatigue with work or exercise.
Several years later Netterville was required to work long hours of overtime that included manually packing boxes and moving supplies as part of Chevron’s office relocation. Netterville claims she begin to suffer sleep disruptions that included getting no more than 1-2 hours of sleep per night for 6-7 days at a time. Once a month she claimed she would sleep 17 hours straight. She also claims she "began to run low-grade fevers and to suffer from headaches, disorientation, pain in her temples, stiff joints, pain in her arms and legs, and numbness in her legs, as well as aphasia and problems with memory, concentration and decision-making at times she was unable to remember even her own son’s name." She became unable to sit or walk for more than thirty minutes at a time, was hypersensitive to light and sound, and experienced episodic crying spells and feelings of social isolation. Approximately 1 year after her symptoms reoccurred Netterville was living with her sister who assisted her with daily living tasks like shopping, cooking, washing, showering, drying, dressing, and using the bathroom. This assistance was primarily needed because of excruciating pain in Netterville’s arms and morning nausea she experienced.
Netterville’s physician suggested that she take a month off from work. Because Netterville could not afford a month off without pay, she got her doctor to write a note advising for a two week break from work. When Netterville presented her request to Chevron for the 2 weeks of time off, she inaccurately reported that her symptoms had reappeared 2 years earlier. Because Netterville was hired by Chevron less than 2 years earlier, the company also began investigating whether Netterville had falsified her medical history questionnaire in addition to considering her leave request. Ultimately Netterville was given her two weeks of leave.
Netterville’s physician conditioned her release to return to work on additional accommodations. He recommended that she be relocated to an office closer to her home. Additionally, due to her alleged hand pain and concentration difficulties, the doctor also advised that Netterville needed to be in a job that allowed for alternate typing and reading rather than reading and typing for extended periods of time. She also needed to be able to take a short nap during her lunch break. When Netterville made these requests to her supervisor, he remained silent. She was allowed, however, to return to work, and she was provided the accommodations she requested during her final 4 days at work. Ultimately, Netterville was terminated for falsifying information on her medical questionnaire.
The EEOC filed a lawsuit on Netterville’s behalf. Relying heavily on EEOC-promulgated regulations and its compliance manual (the EEOC is one of the governmental agency litigants that gets to write the authority it then asks a court to rely on to find in its favor –something no private employer is allowed to do), the court of appeals held that Netterville was entitled to a jury trial on her claims because there were fact issues as to whether Netterville had a disability; whether she was terminated for a disability; and whether Chevron provided reasonable accommodation.
This case is an important reminder that any physical or mental impairment may qualify as a disability if it substantially limits a major life activity. Moreover, the major life activity substantially limited need have no bearing on an employee’s employment or performance of his or her job duties. With the passage of the ADA Amendments Act that substantially broadens the coverage of individuals with disabilities, expect more denials of and reversals of employer summary judgments in ADA cases.…
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