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ADA

Lesson from the court: Never disclose former employees’ medical info

08/20/2010

“Hi, this is Mike from XYZ Company. I’d like to ask you a few questions about a former employee whom you used to manage.” At some point in managers’ careers, they’ll receive such a phone call from an ex-employee’s prospective employer. Be careful: One simple mistake in your response could trigger an expensive lawsuit. Remember: Never disclose medical information about former employees.

When essential duties are at issue, OK to base medical exam on FMLA certification

08/12/2010
A new 8th Circuit Court of Appeals case allows employers to use an employee’s FMLA certification as the basis for requesting a fitness-for-duty exam if the certification asserts that the employee can’t perform an essential function of her job. That’s especially true in high-pressure professions when an alleged FMLA serious health condition affects an employee’s ability to function while at work.

Reasonable accommodations under the ADA in the 7th Circuit

08/06/2010

The ADA requires employers to provide a reasonable accommodation to qualified individuals with a disability, unless doing so would cause an undue hardship. A recent 7th Circuit case sheds light on the extent of an employer’s obligation to accommodate an employee’s accommodation request.

Now that the ADAAA has been enacted, can former employee apply it retroactively?

08/06/2010
Q. One of our security employees uses a hearing aid. He could not pass the unaided hearing requirements of his job. As a result, we let him go. His layoff occurred in 2007, when he first brought a claim for an alleged violation of the ADA. He claims that with the subsequent adoption of the ADA Amendments Act of 2008 (ADAAA), an employer is not allowed to consider mitigating measures in determining whether an employee has a disability. Can the ADAAA be retroactively applied so he is deemed to have a disability under the ADA?

Remember, ADA disability requires substantial impairment of major life activity

08/06/2010

Some employees think that if they have a learning disability, they are automatically disabled and entitled to an accommodation under the ADA. That’s not necessarily so. Such employees still have to prove that their specific learning disability substantially impairs a major life function, such as learning.

Diagnosis just start of ADA assessment process

08/06/2010

The ADA protects Americans from discrimination based on disability. But to be classified as disabled, employees and applicants have to show that they have more than transient or minor problems. Even a diagnosis is only a starting point since different conditions affect people in varied ways. Each individual is assessed based on his or her unique situation to see whether the condition underlying a diagnosis substantially impairs a major life function when compared to the average person.

Does the ADA allow us to look into dangers posed by employee’s recurring medical crises?

08/02/2010
Q. About once a month, one of our employees faints, is taken to the hospital by ambulance and is released to return to work—without restrictions. These recurring incidents are affecting our productivity, and we’re worried about the employee’s health. The employee has claimed the episodes are induced by workplace stress. What should we do?

What’s our legal defense? Working here would be dangerous for ill applicant

08/02/2010
Q. When a job applicant took a post-offer physical, he learned he has hepatitis C. The position he is seeking at our oil refinery would expose him to chemicals that could be harmful to his liver. If we refuse to hire him and he alleges disability discrimination, will we be able to utilize the “direct threat” defense?

ADA: ‘Toxic’ work site (plus toxic boss) doesn’t necessarily create disability

08/02/2010

It happens. Some working relationships between bosses and their direct reports are so toxic that employees suffer psychological problems. Sometimes the tension is so bad that employees believe they’re disabled and therefore entitled to transfer to another job under another supervisor. That isn’t the case.

Is worker fit for duty? Limit medical inquiries to essential functions

08/02/2010

You aren’t allowed to delve into an employee’s medical history or disabilities when the employee wants to keep the information private—unless you can show a clear job-related reason for doing so. To qualify as job-related, your inquiry must be narrowly tailored to assess whether the employee is capable of performing the essential functions of the job. Broad questions often run afoul of the law.