Miami Employment Lawyer Blog

Employees who are injured on the job and placed on lifting or other restrictions may find relief in the 2008 Amendments to the Americans with Disabilities Act (the "Amendments to the ADA"), which became law on January 1, 2009. Under the Amendments to the ADA, a person with a 20-pound lifting restriction that is not of short-term duration may qualify as a person with a "disability" under the law, to which the employer must provide a reasonable accommodation. Thus, if an employee who was injured on the job and has reached the maximum medical improvement, but still has medical restrictions, he should request a reasonable accommodation from his employer so that he or she can continue working with his or her disability.

One of the most important ramifications of the Amendments to the ADA is in the definition of what constitutes a "disability" under the law. Specifically, the Amendments to the ADA specifically overruled the U.S. Supreme Court's decision in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002), where the Court held in order to show that a plaintiff has a disability, he or she must show that his or her impairment substantially limits one or more major life activities that are of "central importance to most people's daily lives." In that case, the employee worked on the assembly line of an automobile manufacturing plant, where she developed several work-related ailments, including bilateral carpal tunnel syndrome and bilateral tendinitis due to the manual work that she performed. She filed a claim under the Kentucky Workers' Compensation statute and was treated, but was placed on lifting and other restrictions. The employee was eventually fired and it was unclear whether it was because she missed work due to her injuries and/or refused to work in the rotation required by the employer. The U.S. Supreme Court found that she did have a "disability" under the ADA because she did not show that her impairments substantially limited one or more major life activities that are of "central importance to most people's daily lives."

Based on this decision, courts have routinely held that an employee's inability to consistently lift heavy weights due to a work-related injury was not a disability under the ADA. However, the Amendments to the ADA change all that and specifically provide that an individual need not demonstrate a limitation in the ability to perform activities of central importance to daily life. Now, someone with a medical restriction that is not of short-term duration is a person with a "disability" under the law and the employer must provide a reasonable accommodation so that he or she can continue working.

Continue reading "Amendments to the Americans with Disabilities Act have Significant Ramifications to Employees Claiming Workers' Compensation Injuries and Medical Restrictions" »

Under the new proposed regulations to the Amendments to the Americans with Disabilities Act (ADA), if an employer denies a job to an applicant because of uncorrected vision requirement, it may be a violation of the ADA. Many jobs, such as policemen, airline pilots, firemen and paramedics require a certain degree uncorrected vision to be considered for the job. For example, the many municipalities require that applicants for police officer or fire rescue jobs have uncorrected vision of at least 20/100. However, unless that requirement is job-related and consistent with business necessity, then it could be a violation of the ADA. In fact, the Amendments to the ADA, which became effective in January 2009, provide that most individuals who are screened out of a job because they cannot meet an uncorrected vision standard will meet the definition of having a disability.

The U.S. Congress passed the Amendments to the ADA in a specific response to two U.S. Supreme Court cases that narrowed the coverage of the ADA. One case in particular dealt with the issue of an uncorrected vision standard. In that case, Sutton v. United Airlines, 527 U.S. 471, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999), the Court held that a person is not "disabled" if corrective measures allow them to function as if they did not have a disability. In Sutton, two individuals who had 20/20 vision with glasses, but 20/400 vision without glasses were denied employment as commercial airline pilots because the airline required 20/100 or better uncorrected vision. The Court held that the two individuals were not actually disabled because they had 20/20 vision using corrective measures. However, Congress found that this ruling was too restrictive and that many people with disabilities were not being covered by the ADA. The Amendments specifically overruled the Sutton decision and required the U.S. Equal Employment Opportunity Commission (EEOC) to issue regulations implementing the ADA Amendments. The EEOC issued proposed regulations on September 23, 2009.

The proposed regulations provide that mitigating measures cannot be considered when determining whether or not a person has a disability as defined under the ADA. Indeed, in the preamble to the regulations, the EEOC specifically states that most persons who are screened out of a job because they cannot meet an uncorrected vision standard will meet the definition of having a "disability" under the law. Therefore, unless the uncorrected vision standard is job-related and consistent with business necessity, the requirement will be unlawful.

Continue reading "Uncorrected Vision Requirements May Constitute a Violation of the Americans with Disabilities Act under the New Proposed Regulations" »

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" »