Tagged: Reasonable Accommodation

New Jersey Guidance Establishes That Employers Can Require That Employees Receive COVID-19 Vaccine to Enter Workplace

With COVID-19 vaccinations becoming more accessible to individuals, the question on many employers’ minds is whether the employer can now require its employees to be vaccinated in order to return to the workplace. On March 19, 2021, the New Jersey Department of Health (DOH) addressed this question and published guidance stating that an employer can require that its employees receive the COVID-19 vaccine to return to the workplace. The DOH guidance, however, does include exceptions to mandatory vaccination policies implemented by employers as follows: if an employee cannot get the COVID-19 vaccine because of a disability that precludes him or her from being vaccinated; where an employee’s doctor has advised the employee not to get the vaccine while pregnant or breastfeeding; or where an employee has a sincerely held religious belief, practice, or observance that precludes him or her from receiving the vaccine, an employer must provide a reasonable accommodation from its mandatory vaccine policy – unless doing so would impose an undue burden on its operations. In the event an employee seeks to be exempt from a mandatory vaccination policy for medical reasons (described above), his or her employer may request medical documentation from the employee to confirm the employee (i) has a disability precluding him or her from vaccination, or (ii) has been...

EEOC Injects Guidance on COVID-19 Vaccine Practices in the Workplace

In the wake of the Food and Drug Administration’s Emergency Use Authorization of the Pfizer and Moderna COVID-19 vaccines, the Equal Employment Opportunity Commission (EEOC) addressed a question weighing heavily on the minds of businesses and their employees: can an employer require its employees to get vaccinated? The EEOC’s December 16, 2020 guidance answered that question in the affirmative, but, as with most pronouncements during the pandemic, the issue is far from simple, and employers must pay close attention to what the guidance says, and what it does not say, when crafting their COVID-19 vaccination policies. The EEOC Guidance characterizes an employer-mandated vaccine as an Americans with Disabilities Act (ADA)-permitted, safety-based qualification standard, akin to “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” Employers can require employees to get a COVID-19 vaccine, but must allow for exceptions where employees are unable to receive the vaccine because of either disabilities or sincerely held religious beliefs. Employees with Disabilities: Where a mandatory vaccination policy would screen out an individual with a disability, the employer must show that the unvaccinated employee would pose a direct threat in the workplace due to a “significant risk of substantial harm to the health or safety of the individual or...

New Jersey Supreme Court Allows Disability Discrimination Claim Brought by Medical Marijuana User Employee to Move Forward

Last month, New Jersey’s high court ruled in Wild v. Carriage Funeral Holdings, Inc. that an employee’s disability discrimination claim brought under the New Jersey Law Against Discrimination (LAD), arising from being terminated for his use of medical marijuana, was not barred by the New Jersey Compassionate Use Medical Marijuana Act (CUMMA), and that he had sufficiently stated his claim to survive a motion to dismiss. Plaintiff, a funeral director, brought suit against defendant-employer/Carriage Funeral Holdings, Inc. (“Carriage”), and others, based on, among other things, allegations that defendants violated the LAD by terminating him due to his disability and failing to accommodate him, as a result of his lawful use of medical marijuana for treatment of his cancer, as permitted by the CUMMA and in accordance with his physician’s treatment plan. Defendants moved to dismiss plaintiff’s complaint, and the trial court granted the motion, with prejudice, finding plaintiff was lawfully terminated for violating Carriage’s drug use policy after a positive drug test, given to him by his employer after plaintiff’s car was struck by another vehicle while plaintiff was driving for work purposes. In reaching its decision, the trial court relied, in part, on the CUMMA’s declaration that employers are not required to accommodate medical marijuana use in the workplace. Plaintiff appealed, and the Appellate...

The U.S. Supreme Court Declines Review of Seventh Circuit Decision Rejecting Extended Leave as a Reasonable Accomodation for Disabled Employees under the ADA

On April 2, 2018, the United States Supreme Court declined to hear an appeal in Severson v. Heartland Woodcraft, Inc., a decision of the Seventh Circuit Court of Appeals that rejected a disabled employee’s claim that, as an accommodation for his disability, he was entitled under the Americans with Disabilities Act (“the ADA”) to leave beyond the maximum 12 weeks authorized by the Family and Medical Leave Act (“the FMLA”). The Seventh Circuit’s Decision Because of back pain, Raymond Severson took the maximum 12 weeks of leave permitted by the FMLA. On the last day of his leave he underwent back surgery, which required him to remain out of work for another two to three months. His employer rejected his request to extend his leave for an additional three months and terminated his employment, although did invite him to reapply when he was medically cleared to return to work. Instead of reapplying, Severson brought suit under the ADA, alleging that the employer failed to provide a reasonable accommodation for his disability by denying his request for extended leave. The district court granted the employer’s motion for summary judgment, and the Seventh Circuit affirmed. The Seventh Circuit’s analysis of the issue was straightforward. “A ‘reasonable accommodation’ is one that allows the disabled employee to ‘perform the...

Eleventh Circuit Widens Circuit Split on Accommodation Issue

Consider the following scenario: Because of a disability an employee is unable to perform an essential function of his or her current position and there is no reasonable accommodation that will enable the employee to remain in that position. The disability, however, will not prevent the employee from performing the essential functions of an open position for which the employee is qualified. A number of courts presented with this scenario have had to decide the extent to which the Americans With Disabilities Act (ADA) mandates that the employer assign the disabled worker to the open position as a reasonable accommodation without requiring the employee to compete for the position with other qualified candidates. Recently, in Equal Employment Opportunity Commission v. St. Joseph’s Hospital, Inc., the United States Court of Appeals for the Eleventh Circuit joined the Eighth Circuit in concluding that there is no ADA violation if the employer requires the disabled employee to compete for the open position. Other courts, however, including the Seventh, Tenth, and D.C. Circuits have concluded that, in most instances, a qualified disabled employee should be placed in the open position as a reasonable accommodation. The Seventh Circuit’s decision is the subject of an earlier blog. The St. Joseph’s Hospital Decision The EEOC brought suit on behalf of Leocadia Bryk, who worked as...

Sixth Circuit Upends EEOC Victory in Telecommuting Case

We previously reported on a decision by a panel of the United States Court of Appeals for the Sixth Circuit in Equal Opportunity Employment Commission v. Ford Motor Co., in which the panel held that the EEOC was entitled to a jury trial on its claim that Ford discharged an employee in violation of the Americans with Disabilities Act (“ADA”) after it denied her request to work from home 4 days per week as an accommodation for her irritable bowel syndrome (“IBS”). In an en banc decision the Sixth Circuit has now reversed the original panel’s decision, concluding that the district court properly granted Ford’s motion for summary judgment on the ADA claim. In so ruling, the Court credited Ford’s business judgment that the employee’s presence in the work place was an essential function of her job, and thus her request to telecommute four days per week was not a request for a reasonable accommodation to which Ford had to accede. The EEOC had heralded the original panel’s decision as a major victory. The Sixth Circuit’s en banc reversal of that decision should be cause for equal celebration by employers.

U.S. Supreme Court Reinstates Pregnant Worker’s Discrimination Case

In Young v. UPS, the United States Supreme Court reinstated a UPS worker’s pregnancy discrimination lawsuit under the Pregnancy Discrimination Act, finding that both the District Court and the Court of Appeals for the Fourth Circuit had applied the wrong standard in upholding UPS’s light-duty-for-injury policy, under which the company refused a light-duty accommodation to a pregnant employee back in 2006. While the Court did not determine whether the employee suffered any actual discrimination, or whether UPS’s policy was impermissible under the PDA – those issues were remanded to the Fourth Circuit – the Court did adopt a modified version of the familiar burden-shifting framework of McDonnell Douglas for analyzing pregnancy discrimination claims under the PDA. The Court’s decision in Young is also noteworthy in that it declined to give deference to the EEOC’s July 2014 guidance on pregnancy discrimination, which we have previously discussed, and, in fact, rejected the argument that the PDA creates “an unconditional favored nations status” for pregnant workers.

EEOC Issues Enforcement Guidance on Pregnancy Discrimination

On July 14, 2014, the Equal Employment Opportunity Commission (“EEOC”) — the agency responsible for the enforcement of federal anti-discrimination laws — issued Enforcement Guidance on Pregnancy Discrimination and Related Issues (“the Guidance”). The Guidance primarily discusses the requirements of the Pregnancy Discrimination Act (PDA) and the Americans with Disabilities Act (ADA), but also addresses additional federal laws that touch upon pregnancy and related conditions, including the Family and Medical Leave Act (FMLA), the Genetic Information Nondiscrimination Act (GINA) and the Patient Protection and Affordable Care Act (ACA).

EEOC Issues Guidance Regarding Religious Dress and Grooming Practices

The Equal Employment Opportunity Commission (“EEOC”) — the federal agency responsible for the enforcement of federal anti-discrimination laws — recently issued guidance on religious accommodation under Title VII of the Civil Rights Act of 1964 (“Title VII”), specifically focusing on religious dress and grooming practices. The publication, entitled “Religious Garb and Grooming in the Workplace: Rights and Responsibilities,” along with its accompanying Fact Sheet, are designed to assist employers to comply with their legal responsibilities under Title VII.

EEOC Focusing on Telecommuting as a Reasonable Accommodation

The EEOC is heralding a recent decision from the United States Court of Appeals for the Sixth Circuit, Equal Opportunity Employment Commission v. Ford Motor Co., a case in which the agency brought suit on behalf of a Ford employee who alleged she was terminated in retaliation for filing a charge of discrimination with the EEOC. In her charge, the employee alleged Ford violated the Americans with Disabilities Act (“ADA”) by not allowing her to telecommute to work. The district court granted Ford’s motion for summary judgment, but, in a 2-to-1 decision, the Sixth Circuit reversed, finding that the EEOC had presented evidence sufficient to survive summary judgment that (a) by requesting to telecommute the employee had sought a reasonable accommodation for her disability and (b) the alternative accommodations offered by the company were insufficient. Of concern to employers is the little weight given by the majority opinion to the employer’s business judgment that the employee’s presence in the workplace was an essential function of her job.