The Americans with Disabilities Act (ADA) prohibits discrimination against individuals with disabilities. Once an employer becomes aware of an employee’s disability, the ADA requires the employer to provide a “reasonable accommodation” to enable the employee to perform the essential functions of his or her job. While the type of reasonable accommodation required can vary greatly depending on an employee’s disability and essential job functions, it was not until recently that a court found that permitting an employee to work in natural light can be a reasonable accommodation.
On May 21, 2012, the Ninth Circuit Court of Appeals held in a split decision that the Americans with Disabilities Act (“ADA”) does not bar discrimination based on marijuana use unless that use is authorized under federal law. In James v. City of Costa Mesa, No. 10–55769, the court held that even marijuana use under a doctor’s supervision in accordance with state law was not protected under the ADA. The court held that the ADA excludes illegal drug users from its definition of qualified individuals with a disability. Although generally-applicable California drug laws carve out an exception for uses of marijuana for medical purposes under doctor supervision, there are no such exceptions to the federal Controlled Substances Act. Since the ADA defines “illegal drug use” by reference to federal law, and the federal law does not authorize marijuana use for medical purposes, the Ninth Circuit Court of Appeals decided that discrimination in the provision of public services based on marijuana use was not prohibited by the ADA.
In Victoria, Texas, the Citizens Medical Center prohibits hiring obese employees. The hospital promulgated a policy that requires all potential employees to have a body mass index (BMI) of less than 35. For example, an applicant who is 5-foot-5 could not weigh more than 210 pounds, and an applicant who is 5-foot-10 could not weigh more than 245 pounds. All potential employees are screened by a physician to assess their fitness for duty. According to the hospital’s policy, an employee’s physical appearance “should fit with a representational image or specific mental projection of the job of a health care professional.”
On February 28, 2012, the Equal Employment Opportunity Commission (“EEOC”) issued additional guidance to wounded veterans and to employers under the ADA Amendments Act of 2008. The two publications are revised versions of guides that originally were posted by the EEOC in February 2008. This guidance reflects another move by federal agencies to address the employment of disabled persons. Last December, we reported that the OFCCP issued a Notice of Proposed Rulemaking that would, among other things, establish a national utilization goal for individuals with disabilities. There is certainly more than one indication from the federal government that employers will likely continue to face heightened responsibilities concerning the employment of disabled individuals.
Thirty-four percent of adults in the United States presently qualify as obese under standards adopted by the Center for Disease Control. Morbid obesity (defined as having a body weight more than 100% over the norm) and obesity caused by a psychological disorder are "disabilities" as defined by the Americans With Disabilities Act (“ADA”), according to the EEOC. Lawsuits involving morbid obesity are on the rise and come in many shapes and sizes. The most common involves a “substantially limiting” health condition such as diabetes, heart disease, and hypertension. Others involve employers who assume an obese employee would pose a direct threat to the health and safety of him or herself or other employees if he or she were to carry out the essential functions of the job.
On September 28, 2011, an Illinois federal district court dismissed the putative class action claims brought by U.S. Equal Employment Opportunity Commission (EEOC) against United Parcel Service Inc. (UPS) in a case where the EEOC alleged that UPS’s 12 month medical leave policy violated the Americans With Disabilities Act by not providing reasonable accommodations to disabled employees. (EEOC v. United Parcel Service Inc., N.D. Ill, No. 1:09-cv-05291.)
When it comes to disabled access and the Americans with Disabilities Act, it’s not just ramps and restrooms anymore. Now plaintiffs, the U.S. Department of Justice and disability rights groups are looking beyond brick-and-mortar issues and are seeking accessibility to company websites, particularly those websites where business is transacted.
The EEOC recently released an informal discussion letter suggesting that employers may be obligated to do more than just maintain a separate file for employee medical records, especially when those records are in an electronic format. Both the Americans with Disabilities Act of 1990 (“ADA”), as amended, and the Genetic Information Non-Discrimination Act of 2008 (“GINA”) require employers to maintain a confidential medical record, which is separate from the employee’s other personnel file(s), for information about the employee’s medical conditions, medical history or “genetic information.” The statutes do not, however, specify how such records are to be maintained or what level of security must be in place to protect the confidentiality of medical or genetic information.
In recent months the federal government has announced a number of initiatives designed to increase the employment of individuals with disabilities in both the private and government sectors. These measures send a clear message to employers: audit your practices now to ensure adequate outreach and accessibility to the disabled.
In a pro-business decision, the Los Angeles Superior Court Appellate Division recently established state standards for damages and standing for California public accessibility cases in Mundy v. Pro-Thro Enterprises, 2011 WL 600619 (Cal. App. Dep’t Super. Ct. Jan. 7, 2011).