Category: ADA

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EEOC Guidance: Employers Cannot Test Employees for COVID-19 Antibodies

The legal landscape continues to shift rapidly during the COVID-19 pandemic.  As we reported here and here, Equal Employment Opportunity Commission (“EEOC”) guidance allows employers to require employee temperature checks, as well as worker testing aimed at detecting COVID-19, even though such testing by an employer would ordinarily raise issues under the Americans with Disabilities … Continue Reading

Navigating ADA Issues in the Time of COVID-19: Four Situations Employers Should Be Prepared For

We have been counseling employers throughout the COVID-19 pandemic and have encountered several common scenarios.  Many of the most frequently asked questions are addressed in our Employer FAQs.  This post provides additional information on the interaction between various pandemic-related issues and the Americans with Disabilities Act (“ADA”). An employee known to be suffering from a mental … Continue Reading

Washington Governor Mandates That Employers Accommodate Employees at High Risk of Contracting COVID-19

For at least the next two months, Washington employers are required to take extra measures to accommodate employees characterized by the Centers for Disease Control and Prevention (CDC) to be at higher than normal risk of severe illness or death if they contract COVID-19.  On April 13, Governor Inslee issued Proclamation 20-46, “High-Risk Employees – … Continue Reading

EEOC Updates Guidance on ADA and the Rehabilitation Act In Light of COVID-19

As employers continue to react to and prepare for workplace challenges due to the impact of the COVID-19 outbreak around the country, the EEOC has updated some of its guidance on the Americans With Disabilities Act (“ADA”) and the Rehabilitation Act.  The EEOC addresses situations such as whether employer can require that employees showing symptoms … Continue Reading

Ninth Circuit Requires Proof of “But For” Causation for Claims Under Americans with Disabilities Act

On Tuesday, August 20, the Ninth Circuit Court of Appeals in a case entitled Murray v. Mayo Clinic, joined four other Circuit Courts of Appeal in holding that a “but for” causation standard applies in ADA discrimination claims.  This standard is considered to make it more difficult for employees to prove discrimination claims than what … Continue Reading

The Ninth Circuit Joins Its Sister Circuits in Ruling That an Employee Who Threatens Co-Workers with Violence Is Not “Qualified” Under the ADA

The Ninth Circuit released a precedent-setting Americans with Disabilities Act (“ADA”) decision yesterday, and it’s a big win for employers.  The Court held that an employee who makes “serious and credible threats of violence toward his co-workers” is not a “qualified individual with a disability” and therefore cannot state a claim under the ADA or … Continue Reading

Supreme Court Sends UPS Pregnancy Accommodation Case to Trial

The U.S. Supreme Court handed a defeat to United Parcel Service (UPS) this week. At issue was whether UPS violated the Pregnancy Discrimination Act (PDA) by requiring a pregnant woman with lifting restrictions to go on leave during her pregnancy, while workers in certain other categories (such as those with on-the-job injuries) were allowed light … Continue Reading

EEOC’s Tough Stance on Employee Separation Agreements

Employers like separation agreements.  Separation agreements, of course, are contracts that employees sign when their employment is terminated that allows them to be paid severance and in exchange they usually give up the right to sue their employer.  Separation agreements provide finality to employment terminations by offering employers protection from claims and potential claims.  The … Continue Reading

What Does Alaska’s and Oregon’s Legalization of Marijuana Change for Employers? Answer: Probably Not Much.

In this week’s mid-term election on November 4, Oregon, Alaska, and the District of Columbia became the latest jurisdictions to pass referendums decriminalizing the recreational possession and use of small amounts of marijuana.  They join Colorado and Washington, which took this step in 2012.  Oregon’s law becomes effective in July 2015; Alaska’s probably in February 2015. … Continue Reading

“Isn’t there supposed to be a good cop?” — 9th Circuit Holds Bilious Conduct Not a Disability Under ADA

Cantankerous employees beware! Being a jerk is not a disability and, at least according to the Ninth Circuit in Weaving v. City of Hillsboro, blaming bad behavior on a physical or mental impairment does not guarantee protection under the Americans with Disabilities Act ("ADA"). Matthew Weaving was diagnosed with ADHD as a child, but stopped exhibiting … Continue Reading

Court Rules That Telecommuting May Be a Reasonable Accommodation Under the ADA

The Sixth Circuit recently held in EEOC v. Ford Motor Co. that regular attendance may not mean physical presence in the workplace, and that telecommuting may be a reasonable accommodation for some employees with disabilities under the Americans with Disabilities Act ("ADA").  This case provides yet another cautionary tale for employers wrestling with complex ADA accommodation issues. Irritable Bowel Syndrome … Continue Reading

FMLA Leave or ADA Accommodation (Or Both)? Overview of Beyond the Basics

After more than 20 years under the ADA and FMLA, and 18 years since the passage of the Oregon Family Leave Act (“OFLA”), most employers are familiar with the basics of these laws. Many employee leave situations can be handled in a basic and straightforward manner. Unfortunately, others involve an obscure application of a particular law, or … Continue Reading

Allergy to Perfume Not a Disability, Says Ohio Federal Court

 Employers got some relief from a situation that is becoming more and more common: an employee that claims a scent allergy and wants a work accommodation. In Core v. Champaign County Board of County Commissioners, Case No. 3:11-cv-166 (S.D. Ohio Oct. 17, 2012), plaintiff claimed she was allergic to a particular scent that substantially limited her breathing … Continue Reading

The EEOC Reiterates the Importance of the Interactive Process

A recent decision from the federal Equal Employment Opportunity Commission (EEOC) reminds employers of their affirmative duty to engage in an interactive process once an employee raises a medical condition and requests some change to their work environment to accommodate it. The Americans with Disabilities Act (ADA), and the Rehabilitation Act at issue in Harden v. Social … Continue Reading

EEOC’s Final Regulations on the ADAAA: News You Will Certainly Use

At long last the EEOC has issued its final regulations for the Americans With Disabilities Amendments Act.  In so doing, the EEOC has taken Congress’ words contained in the Act and declared (repeatedly) that the definition of “disability” is to be read very broadly and that employers should instead focus on whether discrimination has occurred or an accommodation … Continue Reading

Service Animals Limited to Dogs and Some Miniature Horses Under New ADA Rules

As reported in the Oregonian, the Department of Justice this week implemented amendments to a number of regulations governing Title II and Title III of the Americans With Disabilities Act (“ADA”). Title II of the ADA applies to public entities, while Title III applies to public accommodation. While the new rules do not apply to Title I, which … Continue Reading

Medical Marijuana and Zero Tolerance Drug Testing Policies Remain An Issue For Employers

Employers and the courts continue to wrestle with issues involving “zero tolerance” drug testing policies and whether employers must accommodate medical marijuana use by their employees. Marijuana use is illegal under the federal Controlled Substances Act, and therefore does not need to be accommodated under the federal Americans with Disabilities Act (“ADA”). However, 15 states currently have … Continue Reading

Ninth Circuit Holds “One-Strike” Drug Testing Rule Does Not Violate ADA

The Ninth Circuit Court of Appeals yesterday held in Lopez v. Pacific Maritime Association that an employer’s one-strike drug testing policy for applicants does not violate the Americans With Disabilities Act (“ADA”). The one-strike policy in question stated that the company would never hire any applicant who tested positive on a pre-employment drug screening. All applicants were … Continue Reading

Ninth Circuit Approves of “Preemptive” Fitness for Duty Examination

Yesterday the Ninth Circuit Court of Appeals issued a decision approving of an employer’s use of a "preemptive" fitness for duty examination for an employee who exhibited bizarre and erratic behavior in the workplace, even though that behavior had not yet impacted his job performance.  Click here to read the full opinion in Brownfield v. City … Continue Reading

Oregon Supreme Court: Employers Are Not Required to Accommodate Medical Marijuana

Yesterday the Oregon Supreme Court conclusively ruled that employers are not required to accommodate the use of medical marijuana in the workplace, ending years of doubt and confusion on this critical issue. Click here to read the Court’s opinion in Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries. In Emerald Steel, a drill … Continue Reading

President Obama Uses Recess Appointments to Fill NLRB, EEOC Seats

This week President Obama announced that he would make recess appointments to fill vacancies on the National Labor Relations Board (NLRB) and the Equal Employment Opportunity Commission (EEOC).  The move allows the White House to bypass the Senate confirmation process, which promised to be extremely contentious.  The appointments will add two Democratic members to the … Continue Reading

9th Circuit: No Compensatory or Punitive Damages in ADA Retaliation Cases

The Ninth Circuit Court of Appeals recently limited the remedies available to employees who sue for retaliation under the Americans with Disabilities Act (ADA), ruling that the statute does not provide for punitive damages, compensatory damages or a jury trial in ADA retaliation cases.  Click here to read the decision in Alvarado v. Cajun Operating Co.  … Continue Reading

Our Festivus Present to Oregon Employers: Ten Things You Should Know for 2010

Wow, it’s Festivus already, which means that in just a few short days it will be a brand new year!  We have a Festivus present for Oregon employers to help you get ready:  Ten things you need to know for 2010!  (click on each blue hotlink for more information) All Oregon employers are required to post the SB … Continue Reading
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