Miami Employment Lawyer Blog

The United States Court of Appeals for the Eleventh Circuit, which covers Florida, Georgia and Alabama, announced this month that a disabled worker must be able to identify and specifically articulate the reasonable accommodation that he or she is seeking. Under Title I of the Americans with Disabilities Act (ADA), an employer must provide a reasonable accommodation to the disability of a qualified employee as long as it does not create an "undue hardship" on the employer. For example, an employer may be required to provide equipment or devices, restructure the job, reassign a disabled employee, provide interpreters or readers, and may be required to modify work schedules, among other things.

It has generally been the position of the U.S. Equal Employment Opportunity Commission (EEOC) that where the reasonable accommodation is not readily apparent, then the employer must make a reasonable effort to identify one. See http://www.eeoc.gov/facts/ada17.html. In fact, the regulations implementing the ADA specifically provide that in order to determine an appropriate reasonable accommodation, the employer should engage in an informal, interactive process with the disabled employee. See 29 C.F.R.§1630.2(o)(3).

However, the Eleventh Circuit Court of Appeal's recent decision in Webb v. Donley, No. 09-10050 (11th Cir., 2009), appears to turn that principle on its head. In that case, which was decided two weeks ago (September 14, 2009), the Court specifically stated that "if the employee does not identify a reasonable accommodation, the employer does not have to enter into an interactive dialogue or show undue hardship." There, the plaintiff, who suffered from Fibromyalgia and Myofascial Pain Syndrome, alleged that her employer discriminated against her by failing to allow her to work on a modified schedule. What is odd is that the evidence showed that her employer had previously allowed her to work a modified schedule in the past. The Court, however, held that just because the employer allowed the employee to work a modified schedule in the past, it does not mean that the accommodation requested is reasonable. It seems that the basis of the Court's decision was that the employee did not offer any other type of reasonable accommodation.

While it is unclear whether the Webb decision will withstand legal scrutiny, the lesson to be learned is that a disabled employee must be proactive and suggest numerous reasonable accommodations to his or her employer. Insisting on a single type of accommodation, even if such an accommodation was provided in the past, may be held to be unreasonable. Therefore, a disabled employee should provide and suggest to his or her employer several alternative reasonable accommodations that will allow him or or to perform the job.

Continue reading "A Disabled Employee Must Identify the Reasonable Accommodation Being Requested and Ought to Provide Alternative Suggestions" »

Section 599.221(8) of the Florida Statutes provides that food and hotel workers that have a communicable disease cannot be employed by a licensed food and hotel establishment. That requirement, however, may be a violation of federal law. Specifically, the Americans with Disabilities Act (ADA) states that employers are required to provide a "reasonable accommodation" to the known disability of an employee, except in the case that it creates and an "undue hardship" on the business. This means that the employer must change aspects of the job so that the individual with a disability can perform the job. However, the employer is not required to provide a reasonable accommodation if it causes significant difficulty or costs the employer a lot of money, taking into account the size and financial resources of the employer. In addition, Under Title II of the ADA (the public accommodation provisions), a license in any occupation cannot be denied simply because the candidate for the license has been diagnosed with HIV or AIDS.

With respect to occupations in food service and hotel establishments, a recent Guidance Memorandum issued by the U.S. Department of Justice (DOJ), which is the government agency charged with enforcement of the public accommodation provisions of the ADA, gives us an indication as to such restrictions will be viewed. In its Guidance Memorandum, the DOJ clarified that the ADA protects individuals with HIV and AIDS in professions such as barbering, massage therapy and home health care assistance. More specifically, the Guidance Memorandum states that public and private licensing agencies are prohibited from denying a license to an individual because of he or she has been diagnosed with HIV or AIDS. According to the DOJ, individuals with HIV and AIDS still face obstacles in obtaining state licensure in these occupations because of what it termed "overly broad state licensure requirements." The DOJ reasoned that "excluding individuals with HIV under these licensure requirements is unnecessary and discriminates against these individuals in violation of the ADA" because HIV is not communicated through casual contact. As a result, the DOJ stated that agencies that required a doctor's certification that an individual is free from "communicable diseases" must exclude diseases not transmitted through casual contact, such as HIV.

Based on this rationale, Florida laws that requires food service and hotel workers to be free from communicable diseases are overly broad and may be a violation of federal law. Specifically, Florida law (Section 599.221(8)) provides that "[a] person, while suffering from any contagious or communicable disease, while a carrier of such disease, or while afflicted with boils or infected wounds or sores, may not be employed by any establishment licensed under this chapter [food and hotel services], in any capacity whereby there is a likelihood such disease could be transmitted to other individuals." As indicated by the DOJ Guidance Memorandum, that law must exclude diseases not communicated through casual contact, such as HIV. To make matters worse, the Florida Division of Hotels and Restaurants also provides that Public Food Service Catering Establishment employees "must be free of open sores and skin infections, respiratory infections, upset stomach, diarrhea or other communicable diseases." That requirement may also be a violation of federal law.

Under the ADA, individuals can be denied employment or access to opportunities only if they pose a "direct threat" to the health or safety of themselves or others that could not be eliminated through a reasonable accommodation. But irrational fears and stereotypes cannot result in a determination that there is a direct threat to public safety. As the DOJ states, "[p]eople with HIV or AIDS should not be denied access to their chosen profession because of outdated laws or unfounded stereotypes and fears."

Continue reading "Florida's Requirement that Food Service and Hotel Workers Must be free of HIV/AIDS may be a Violation of the Americans with Disabilities Act" »