Labor Day has come and gone. Summer is over.  Can we all stop listening to Despacito now. (Please?)

But it’s time to look at a decision that came out during the dog days of summer that might have been overlooked.  A recent federal district court case (Noffsinger v. SSN Niantic Operating Co. LLC, download here) has answered the question of whether Connecticut’s medical marijuana laws were preempted by federal law.

The decision held that Connecticut employees who have received approval from the state agency to use medical marijuana outside of work cannot be fired just because they test positive for marijuana during a drug screening.  In doing so, the court held that employees and job applicants can sue based on a termination or a rescinded job offer.

As my colleague wrote for my firm’s alert:

Unlike the laws of other states permitting residents to be prescribed medical marijuana, Connecticut’s statute expressly makes it unlawful to refuse to hire or to discharge an employee solely because of the individual’s status as a qualifying patient, or for testing positive in a drug screening as a result of using medical marijuana within the protections of the statute. However, Connecticut does not protect such individuals if they are found to be using or are under the influence of medical marijuana during working hours.

The court analyzed federal drug laws and determined that they do not address the issue of employment and do not make it unlawful to employ a medical marijuana user. As a result, even though federal law prohibits possession or use of marijuana, those restrictions do not apply to someone properly using medical marijuana under state law.

The decision follows one from Massachusetts that we previously recapped here.

In prior posts, I’ve talked about the difficulties for employers trying to navigate this still-developing area of law.  Employers should proceed carefully under such circumstances and ensure compliance with the state’s medical marijuana laws that prohibits firing employees solely because of the individual’s status as a qualifying medical marijuana patient.

If an employee is under the influence of marijuana during working hours, that may afford employers the opportunity to take decisive employment action but other circumstances may not be so clear.

Consulting with your legal counsel on this changing area of law is advisable for the foreseeable future while more court decisions define the parameters of acceptable action.

The Connecticut Appellate Court today released an important disability discrimination decision that gives employers some support for employees who struggle with employees who ask for “accommodations” for an indefinite leave for a medical condition.

The case ostensibly addresses the request for “indefinite leave” which I’ve previously talked about it in prior posts.

But the case boils down to a familiar set of facts for employers. An employee who one day says, “I need to take 30 days off for a medical condition” and leaves the employer to twist without further response. As explained by the court:

The plaintiff informed the defendant that she would be taking a leave of absence, did not provide the defendant with any time frame for her return, and did not respond to the defendant’s subsequent attempts to contact her regarding her request for leave. The plaintiff effectively asked the defendant ‘‘to hold [her] position open indefinitely while [she] attempt[ed] to recover. . . .’’

Under these circumstances, the court said that the Plaintiff cannot establish even a prima facie case of discrimination because she cannot show that she “requested a reasonable accommodation that enabled her to perform the essential functions of the job”.

In doing so, the state court reviewed federal law and noted that “[R]easonable accommodation does not require [an employer] to wait indefinitely
for [the employee’s] medical conditions to be corrected . . . .’’

In this particular case, the court said, the plaintiff, prior to her departure, informed her supervisor that she would be taking leave for ‘‘over thirty days depending on my lung condition . . . .’’  At a subsequent deposition, the court went on to say, the plaintiff was asked, with respect to her request for leave, that ‘‘you didn’t know how long you were going to be out, correct?’’ The plaintiff responded, ‘‘[c]orrect.’’

The forms submitted by the employee at the time were confusing and the Plaintiff did not respond after requests by certified and regular mail by the employer for more information.  When the employee was told to submit information by a date certain and did not do so, the employer just went ahead and fired her. The court upheld that termination.

For employers, the case offers some helpful reminders:

  • Reasonable accommodation is an interactive process. So long as the employer holds up its end, courts will be more inclined to support the employer in the end.
  • Seeking medical documentation from employees regarding their requested leaves is both necessary and essential to defending a claim where the documentation is vague.  Don’t hesitate to followup and set firm deadlines to the employee to provide the information.
  • As always, seek legal counsel to help navigate through this and work through any issues regarding termination.

Employers may feel like anti-discrimination laws are rigid, but there is built-in flexibility for employers if they know where to look.

The case, Thomson v. Department of Social Services, can be downloaded here. 

While the relaunch of the blog has been delayed a bit more (I swear it’s coming soon), it’s time to have another post in the interim. My colleague Gary Starr is back with an interesting decision from the state next door — Massachusetts. As some Connecticut employers cross state lines (and marijuana cases continue to arise), the case is a reminder that the law continues to evolve in unexpected ways.

Many states have approved the use of medical marijuana, despite the fact that the federal government continues to classify marijuana as a Schedule I controlled substance.  As a result there is a tension between state rights to use medical marijuana and federal law prohibiting its possession.

The Massachusetts Supreme Judicial Court had an opportunity to determine how to balance the rights of an employee who had been prescribed and was taking medical marijuana for Crohn’s Disease versus the employer’s interest in complying with federal law and maintaining a drug free work place.  The Court found that the employee had sufficiently alleged that she was a qualified individual with a disability who was entitled to a reasonable accommodation related to use of medical marijuana.

As a result, her firing after testing positive could be challenged and she could pursue a disability discrimination claim under state law.

As part of the hiring process, a new employee was required to take a drug test.  She immediately explained to her supervisor that she suffered from Crohn’s disease and she had been prescribed and was using medical marijuana which was improving her appetite and allowing her to stabilize her weight.  She said that she did not take it before work or during working hours, but that if tested, she would test positive.  After being tested and getting a positive result, the human resource administrator called and fired her.  When the employee tried to explain the she had a prescription, the administrator told her that the company follows federal law, not state law.

The employee ultimately sued in state court claiming that she was being discriminated against because of her disability and that the company had failed to accommodate her disability.

The lower court had dismissed the case, but the highest Massachusetts court concluded that the employee had sufficiently alleged that she had a disability, that she was qualified for the position, and that she was entitled to a reasonable accommodation.  As a result, the case was sent back to the lower court for further proceedings.

The high court, however, also made clear that the employer could still win, but the employer must show that the accommodation was not reasonable and/or caused an undue burden.  The court noted that the employee could not come to work intoxicated, nor could the employee engage in tasks that could pose a risk to the public.

It also noted that if the employer was subject to federal laws related to a drug free work place or similar obligations, then the accommodation could be found unreasonable.

In Massachusetts, employers must not simply apply a drug free work environment policy, but must look at each situation to determine whether the employee is entitled to a reasonable accommodation.  In states that have adopted medical marijuana statutes — like Connecticut — employers must decide whether the employee has a disability, how to handle a request for an accommodation, and whether there is a compelling reason to deny the accommodation based on undue hardship.

It is also critically important to meet with and discuss the situation with the employee to determine whether there is an alternative to the use of medical marijuana and to review how the job is structured to see if the employee can do the essential functions without violating company policies or impairing the company’s business operation.  It is also important to determine the scope of the medical marijuana statute to determine whether employees have additional employment rights under state statutes.

In states where an employee has been prescribed medical marijuana, employers may not be able to fire an employee who has simply failed a drug test.  More questions must be asked before firing someone who tests positive for marijuana.

shotYou don’t need to look for a needle in a haystack to figure out this latest case from the Second Circuit.

But you do need to know what “trypanophobia” is.

Ready? Fear of needles.

That becomes important in a Second Circuit court decision yesterday holding that an employee’s fear of needles prevented that employee from performing an essential function of his job and rejecting his disability discrimination claim.

The background of Stevens v. Rite Aid Corp. (download here)  is fairly straightforward as cases go.  As you’ve probably noticed of late, many of the big pharmacy chains have been requiring pharmacists to perform immunizations in order to fill an unmet need for vaccinations in the health care market.

In April 2011, Rite Aid revised its job descriptions for pharmacists to require them to hold a valid immunization certification and noted that immunizations were part of the pharmacists’ essential duties and responsibilities.

The plaintiff in the above case worked as a pharmacist for 34 years.  When the job description was changed, he received a note from his physician explaining that the employee was “needle phobic and cannot administer immunization by injection.”  When he refused to perform that role (and I’m simplifying for purposes of a blog post), Rite Aid terminated his employment.

A trial did not go well for Rite Aid.  A jury determined that the employee had been discriminated against and awarded over $2M in damages.

Hence the appeal.

In reviewing the matter, the the Second Circuit rejected an employee’s disability discrimination claim because the evidence “compels a finding that immunization injections were an essential job requirement.”

While “it is understandable that the jury had sympathy for Stevens, afflicted as he was with an unusual phobia”, “his inability to perform an essential function of his job as a pharmacist is the only reasonable conclusion that could be drawn from the evidence”.

The court also looked at whether there was a reasonable accommodation that could have been provided to him.  But the court said that the employee failed to show a reasonable accommodation existed at the time.  An accommodation does not require elimination of an essential function of the job.

The court case is a very helpful decision in clarifying whether an employer can insist on having its employees perform the essential functions of a job. Too often, employees suggest accommodations that would have them avoid an essential function of the job altogether. This court case should put a damper on such arguments.

For employers, the case is also a helpful reminder on having clear descriptions on what the essential functions of a job are and being able to explain why the duties are created that way.   Nonetheless, employers should still engage in an interactive process with an employee about whether there are any reasonable accommodations that can be provided.

file9281249337561Tomorrow, I’ll be part of a webinar produced by the American Bar Association on reasonable accommodations under the ADA.  You can still sign up here.

The topic page for the webinar gives a fairly concise summary:

A reasonable accommodation under the Americans with Disabilities Act (ADA) is any modification or adjustment to a job or the work environment that will enable a qualified applicant or employee with a disability to participate in the application process or to perform essential job functions. Leave can be a reasonable accommodation if it does not constitute an undue hardship on the employer. Our panel of experts will discuss what obligations employers have to provide leave as a reasonable accommodation under the ADA, in light of recent case law and the Equal Employment Opportunity Commission’s May 2016 guidance.

The other speakers on the panel are terrific. Lori Ecker is a Plaintiff’s attorney from Chicago; we’ve worked together in the past on ABA issues and she’ll bring a valuable perspective.  Shannon Rennert is a senior staff attorney with the EEOC who has been on top of these issues for years, even issuing letters on the subject.    Janine Martin moderates.

Among the particulars that we will discuss are such tricky topics such as “maximum leave” policies, and unpaid leave as a reasonable accommodation.  I hope you’ll join us.

starrMy colleague Gary Starr sits next to my office and sometimes we bounce ideas off each other. One of the things we were talking about recently was a new case that discussed an employer’s obligations to enter into the interactive process.  

This often comes up in ADA cases where the employee may need a reasonable accommodation.  As we discuss in this joint post below, there are no magic words needed — and sometimes no words needed at all.  

Both federal law (ADA) and state law (CFEPA) require employees and management to meet and discuss what might be a reasonable accommodation when an employee with a disability seeks an accommodation.

This interactive process was envisioned as a way to work collaboratively to find a reasonable accommodation.  Certainly when an employee asks for an accommodation, an employer must engage in the process.

But here are a few questions to ponder:

  • What should happen when the employee does not quite use the right words to start the process?
  • Can the employer be liable for failing to engage in the interactive process after terminating an employee who has not been accommodated?
  • While there are no magic words that must be uttered to start the interactive process,  what will trigger the obligation?

A recent federal appeals court case (Kowitz v. Trinity Health) discussed this situation, where the employer apparently ignored the signs requiring it to explore possible accommodations.  As a result, the employee will get her day in court.

The basic facts:

  • A respiratory therapist was diagnosed with a degenerative disease.
  • She requested and was granted time off for surgery under the Family and Medical Leave Act (FMLA).  After she exhausted her FMLA leave, she returned to work with restrictions.
  • During her leave, management reminded the department’s employees that they needed to submit proof of their certification in CPR, an essential job function.  Employees who needed to get recertified were required to say when they were going to take the course and the written and physical tests.
  • Having discussed the matter with her doctor, the therapist left a voice mail message for her supervisor that she would take the course and the written exam, but needed to complete 4 more months of physical therapy before she could do the physical portion of the test.
  • The next day, the respiratory therapist was terminated because  she was unable to perform CPR.

She sued, claiming that her employer did not engage in the interactive process.  The court found that while the therapist did not expressly ask for an accommodation, she provided sufficient information to start discussions.

The court pointed out that the employer was aware of the disability.  It approved the FMLA leave.  It received the Return to Work form from her doctor with work restrictions.  And there was evidence that the employee had told her supervisor about her problems completing the CPR certification and she told her supervisor about her doctor appointments and her continuing pain.

What’s the Takeaway?

This decision warns employers that if you know about an employee’s medical limitations, that knowledge may be sufficient to trigger the informal interactive process.

While it is not clear whether other courts will adopt this liberal approach, which is better in the long run: Sitting down with the employee or litigating?

It is important to remember that not all requests for an accommodation are reasonable.  The expense of a requested accommodation may not be reasonable; what the employer offers may be reasonable, even if rejected by the employee; and there may not be a solution to the situation.

But engaging in the process makes much more sense than trying to convince a judge or jury that you were too busy to meet for an hour or so and were unwilling to listen to possible ways to have the employee be productive and contribute to the company.

Continuing his posts on wellness programs, my colleague Marc Herman fills us in on what’s the latest.  

hermanI return today with the second part of a two-part post on wellness programs.

Reference to my prior post is not to be braggadocious, but to remind you that both posts ought be read in tandem.  Shameless, I know.

As I mentioned last time, the EEOC has finally published its long-awaited regulation that attempts to clarify the meaning of a voluntary medical examination.

Why long awaited? I hear you ask.

Well, if you recall, over the past couple of years, the EEOC has embarked on a slightly manic litigation spree against wellness programs.

In its typical altruistic self, the EEOC set-out to remind us that involuntary medical examinations are largely prohibited under the ADA.  I call this the No Exam Rule.

nurseNow, let’s get to the regulation itself.

According to the regulation, a voluntary medical examination (i.e., a lawfully incentivized wellness program) means that an employer:

  1. Does not offer an incentive that, in monetary terms, exceeds 30% of the total cost of self-only coverage for an employee;
  2. Does not deny an employee access to a health plan on the basis that the employee declined participation in a wellness program; and
  3. Does not retaliate against those employees that otherwise choose not to participate.

My self-proclaimed cynicism aside – please, I am English (Editor’s note: Too true!) – the above rules set forth a pragmatic, and dare I say workable, framework.  Employers that are considering such programs or that already have such programs, should be mindful of the regulations.

One thing to keep in mind — the regulation applies prospectively.  Thus, it will apply only to wellness programs that begin on or after January 1, 2017. With that said, the shake-up (or shake-down) due to take place in Washington D.C. very soon could relegate this new regulation to the history books.

Watch this space. Because I have a feeling we haven’t heard the last about wellness programs regulations.

 

nurseSo, back in January, I penned a post titled “Can You Fire an Employee Who Has Exhausted FMLA Leave?”

As if to respond, the EEOC yesterday released guidance that basically answers: Not necessarily, because it might violate the Americans with Disabilities Act. 

And that is the crux of the issue for employers.

Before I go further, let’s remember one thing: The ADA is a statute that demands flexibility.  It requires that employers provide “reasonable accommodations” to employees to enable them to perform the essential functions of their job.

The EEOC’s guidance tries to explain this flexibility in various ways.  Sometimes it clarifies the situation; but in other ways, the guidance only serves to create more questions for employers to ponder.

The guidance is broken down into six key areas.

1. Equal Access to Leave Under an Employer’s Leave Policy. This is fairly straightforward; the same leaves of absence rules applicable to employees without disabilities should be applied to those with disabilities.

2. Granting Leave as a Reasonable Accommodation. The EEOC’s continues to argue that an employer must consider providing unpaid leave to an employee with a disability as a reasonable accommodation if the employee requires it, and so long as it does not create an undue hardship for the employer.

3. Leave and the Interactive Process Generally.  The EEOC reminds employers that when an employee requests an accommodation such as leave (and note: such requests rarely come in a neat fashion like “I hereby invoke my rights under the ADA for a reasonable accommodation”), the employer should promptly engage in an “interactive process” with the employee.  This process should focus on the specific reasons the employee needs leave, whether the leave will be a block of time or intermittent, and when the need for leave will end. Even under this instance, the employer may consider the “undue hardship” the leave may have on the workplace.

4. Maximum Leave Policies. Although employers are allowed to have leave policies that establish the maximum amount of leave an employer will provide or permit, the EEOC argues that employers may have to grant leave beyond this amount as a reasonable accommodation to employees who require it because of a disability, unless the employer can show that doing so will cause an undue hardship.  Thus, policies with hard caps may violate the ADA.

5. Return to Work and Reasonable Accommodation (Including Reassignment).  In this section, the EEOC argues that employers should avoid “100% Healed” policies, which require that an employee be fully recovered before returning to work.  A temporary transfer to a vacant position might allow the employee to return earlier while the employee continues to heal, for example.  Again, the notion of a “reasonable accommodation” and flexibility controls.

6. Undue Hardship. For employers, this may be the last safeguard and one that might need to be used more.  For example, an employer might argue that the duration and frequency of the leave, and the impact on the employer’s business, make such a leave too difficult under the circumstances.  A big plus for employers, however is that an “indefinite leave” — meaning an employee cannot say whether or when she will be able to return to work at all — “will constitute an undue hardship”.  But overall, employers will need to examine such requests on a case-by-case basis.

Jon Hyman of the Ohio Employer Law Blog suggests in his post today that this guidance “goes a long way to answering many of the questions employers will have.”  I respectfully disagree with Jon.  The EEOC’s guidance is an aggressive approach to the law that has yet to be fully tested by the courts.  Rather than create clarity, the guidance pushes the boundaries as to what employers should do. And CT’s anti-discrimination laws have their own requirements which may (or may not) mirror all of the ADA’s requirements.

For example, if an employee cannot do the essential functions of the job he or she was hired for with a reasonable accommodation, why is it reasonable to assign them permanently to another job?

That’s not to say that employers should turn a blind eye to those with disabilities or those in need to some extra time in some circumstances. I’m not advocating that at all; being understanding of your employees is vital being a good employer. And there will be instances where employers will do all that it can to keep a valued employee.

But I worry about the situations in which an employee is abusing leave; there has to be an end point. A point at which the employer can legitimately say “enough is enough.”

And with the EEOC’s guidance, that end point remains as muddy as ever.

lettersPicture this scenario:

You come into your office one morning to learn that an employee has filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) claiming that you failed to accommodate his disability reasonably and then terminated his employment because of his disability.

As if that isn’t challenging enough, many months afterwards, you receive a request from the EEOC to provide the names and contact information of his fellow employees who worked for you at the same time as the original complainant, as part of the EEOC’s investigation into the complaint.

This type of scenario isn’t uncommon; the state agency investigating discrimination complaints (CHRO) often requests information on co-workers as part of the investigation and sometimes requests that these co-workers be available for interview.

But here’s where the scenario gets interesting — and this story is based on a ruling on a motion to dismiss in federal court just this week in the EEOC v. Day & Zimmerman case.  The employer’s in-house counsel — seemingly with reference to outside counsel as well — decided to notify the co-workers of the request.

Indeed, the employer sent a letter to approximately 146 individuals, all of whom were members of same union as the Complainant and all of whom had worked, or continued to work, for the employer.  Whether you view the letter as an innocuous helpful note, or a nefarious threat will depend on your perspective.

In the letter (which you can download here at part of the employer’s filings — page 49), the employer identified the complainant by name, and indicated that he had filed a charge of discrimination on the basis of disability. The letter went on to identify the Complainant’s union local, the medical restrictions on his ability to work, and the accommodation he had requested. It further informed the recipients of their right to refuse to speak to EEOC investigator and offered them the option to have the employer’s counsel present if they chose to speak to EEOC.

Is there anything wrong with the letter?

According to the EEOC, yes (download here). The EEOC alleged that this letter constitutes retaliation against the original Complainant for opposing conduct made unlawful by the ADA. The EEOC further alleged that the letter interfered with the Complainant and the recipients of the letter in their the exercise or enjoyment of rights protected by the ADA, including the right to communicate with EEOC, the right to participate in an EEOC investigation, and the right to file a charge of discrimination with EEOC.

The employer, as you might imagine, vehemently disagreed and filed a motion to dismiss the complaint (download here).  It argued that the lawsuit “exemplifies the U.S. Equal Employment Opportunity Commission (“EEOC”)’s enforcement position of ‘do as I say, not as I do.'”  It noted that the EEOC, through the lawsuit itself, publicized the same information it now criticizes the employer for doing, even though the employer was obligated — it argues — to do so by the Rules of Professional Conduct (simply, the ethical code for attorneys).

The employer also argued that the letter explicitly re-affirmed the employer’s policy against retaliation, its commitment to equal employment opportunity, and the “employer’s position that a decision to speak with the EEOC investigator ‘will not have an adverse impact on your current or future employment.'”

The federal court rejected the employer’s motion to dismiss (ruling available here for download); in doing so, it emphasized that under the standards governing review of such motions, it must construe the federal complaint in a light most favorable to the EEOC. After doing so, the court concluded that the allegations were sufficient to state a claim for ADA violations  even though the Complainant had already been terminated from employment at least 17 months prior to the letter being distributed.

As a starting point, the court noted that “Routinely, courts have held that, when an employer disseminates an employee’s administrative charge of discrimination to the employee’s colleagues, a reasonable factfinder could determine that such conduct constitutes an adverse employment action.”  And the court concluded that, again construing the facts most favorably to the EEOC, the letter was sent just three months after the employer learned that the EEOC intended to pursue the complaint seriously:

Here it is plausible that the first opportunity to retaliate against [the Complainant], whom they had already terminated, was when the EEOC provided a list of fellow union members to whom Defendant could disseminate the potentially damaging EEOC charge.

The court also addressed the seldom-litigated issue of an interference claim under the ADA. It noted that neither the Supreme Court nor the Second Circuit has outlined a test for such a claim. (Though query whether the court overlooked the Second Circuit case of Gradziano — or at least had written its opinion before that one came out.)

Here, the court concluded that while there was no allegation of any direct evidence of the employer’s intent behind the letter, the issue of the employer’s intent “is a question of fact that cannot be resolved on a motion to dismiss.”

Moreover, the fact that the employer disclosed “sensitive personal information” about the Complainant could dissuade the Complainant and the co-workers from communicating further with the EEOC.

Obviously, this lawsuit if far from over.  Both the EEOC and the employer have staked out positions that make a compromise seem unlikely.  And so the case will likely proceed to discovery and then another round of motion practice.

For the rest of us though, this case — and the issues it touches upon — is again worth following.

In the meantime, employers should be very wary of mass notifications of discrimination charges to co-workers (former or current) in response to an EEOC inquiry.   Left unclear from the decision is whether there are any circumstances in which the employer can notify co-workers of the inquiry and at what level of detail.  Would an e-mail indicating that the EEOC may be contacting them but without the details of the Complainant’s complaint pass muster?  How strongly should an employer emphasize its policies prohibiting retaliation?

Employers are going to want to tread very carefully for now and consult their counsel about any communications going out.

While a recent Second Circuit case received lots of headlines regarding its discussion of individual liability under FMLA, the case has some other nuggets for employers to understand, as my colleague Gary Starr explains in today’s post.  Buried in Graziadio v. Culinary Institute of America case is a reference to the fact that the federal appeals court had not “yet had occasion to consider what standard should govern such rarely litigated claims of ‘associational discrimination.'”

That is, until now. Thanks to Gary for highlighting this notable aspect of the case.

starrYou should all know by now (and call us if you don’t) that when an employee asks for a reduced schedule to address his/her own disability, the ADA and Connecticut law may apply. Indeed, under the ADA and state law, you should engage in an interactive process to work out a way for both parties to benefit.

But what happens when it is not the employee who has the disability, but rather a family member and the employee seeks an accommodation?

While we know that employers must address the situation involving a qualified individual with a known disability, the situation is different when the employee has a relationship with someone known to have a disability.

Discrimination is prohibited based on that relationship or association, but importantly, the scope of the employee’s rights is not the same.

The Second Circuit recently explained that there are three situations that can lead to a claim of associational discrimination:

  1. Where the employee suffers an adverse action as a result of the employer’s concern over the “expense” that may cause increases in insurance due to the employee’s association with a disabled individual covered by the employer’s insurance;
  2. Where the employee suffers an adverse action as a result on the employer’s fear that the employee may contract or is genetically predisposed to develop the disability of the person with whom he/she is associated; or
  3. Where the employee suffers an adverse action due to the employer’s fear that the employee will be inattentive at work due to the disability of the disabled person.

If any of these 3 situations is the basis for the adverse action, then the recent case suggests that the employer will have to prove that it had a legitimate non-discriminatory reason for its action.

In the case before the court, there was no claim involving concerns about insurance or about the possibility that the employee might develop a disabling condition.  Instead the employee alleged that the employer feared the employee would be inattentive at work because her son developed diabetes and he was learning how to monitor his blood sugar.

While that was the allegation, the employee could not and did not show that she was fired because the employer believed she would be “distracted” by her son’s condition.  Rather, the evidence showed that she was fired because her employer’s concern was that she would not be at work at all.

The employee failed to prove she was discriminated against under the ADA as an accommodation was not available under these circumstances.

However, often these cases have an aspect under another federal law.  Here, the Family Medical Leave Act could provide her with the opportunity for intermittent leave, if necessary, and this became the basis for her lawsuit.

What cases like this demonstrate is that under the patchwork of state and federal laws, it is important to analyze a situation under differing statutes.  In this case, the employee had no recourse under the ADA, but did under the FMLA.  It is important to take the time and be sure that the requests made by an employee for an accommodation are fully reviewed.  The consequences can be protracted litigation and a large back pay judgment.