Saturday, June 20, 2009

New ADA Case re CFS accommodations

[Don't get put off by the title! Tom]

http://tinyurl.com/ljjfjt
i.e.
http://www.businessmanagementdaily.com/articles/19324/1/Chronic-Fatigue-Syndrome-or-Just-Too-Pooped-to-Work/Page1.html#

Chronic Fatigue Syndrome or Just Too Pooped to Work?

By Mindy Chapman, Esq., Mindy Chapman & Associates ADA , Case In Point

6/18/2009 - 2:21pm



If you have an employee who seems constantly exhausted, take note: He or she
may suffer from chronic fatigue syndrome (CFS). And under the newly revised
Americans with Disabilities Act (ADA), that person could be deemed
"disabled" and entitled to reasonable work accommodations.

Case in Point: Lorin Netterville was diagnosed with CFS in the late 1980s,
but she had lived symptom-free for many years. That ended soon after she
began work as an administrative aide for Chevron. She suffered a relapse of
her CFS, whose symptoms include joint pain, inability to concentrate and
excessive fatigue after ordinary tasks.

Netterville asked for two accommodations. First, she asked for leave, which
was granted. Second, she asked for permission to take more frequent breaks
and to alternate job tasks. Chevron never responded to the second request.
Eventually, Netterville was terminated for allegedly misrepresenting her
medical history on a pre-hire questionnaire because she failed to state that
she'd been diagnosed with CFS.

Netterville sued Chevron for violating her ADA rights. The key question was
whether or not Netterville was suffering an ADA-qualifying disability at the
time of her firing. Employees are covered under the ADA if they have a
physical or mental impairment that "substantially limits" one or more major
life activities. The new ADA Amendments Act, which took effect on Jan. 1,
broadened the meaning of "substantially limits" and, thus, more Americans
are now eligible for ADA accommodations at their jobs.

The lower court dismissed her claim, agreeing with Chevron that Netterville
was not protected under the ADA because she was in remission at the time.
She then brought her case to 5th Circuit appeals court. The ruling could be
a harbinger for ADA cases going forward. (EEOC v. Chevron Phillips Chem.
Co., 5th Cir., 6/5/09)

What happened next and what lessons can be learned?

The court reversed the lower court ruling and sided with Netterville. It
said that although "temporary, non-chronic impairments," such as broken
arms, are not ADA-covered disabilities, "the consensus of the medical
community is that CFS is a chronic disease of indefinite duration for which
there is no known cure."

The court added, "As the Supreme Court has noted in the context of
evaluating whether a limitation is substantial, an impairment does not have
to be completely disabling to qualify under the ADA. Moreover, the
assessment of whether an individual is disabled is made not just with
respect to the workplace, but also by looking at the effect of the
impairment on the individual's entire life.

3 lessons learned . without going to court

1. Don't be quick to fire.  Courts have a "retaliation stop watch." They'll
scrutinize how much time has lapsed between when an employee asks for a
reasonable accommodation and when an adverse employment action occurs.

2. Engage in the interactive process. The court noted that the employer here
blew off the employee and did not respond to the second request. Always
communicate with an employee who makes a request for an accommodation, then
document the discussion.

3. Understand the new ADA changes. The new ADA Amendments Act says that
employees with medical conditions in remission may be covered under the ADA.
Don't be a test case for new laws and regulations. Proactive legal advice is
always cheaper than reactively defending a lawsuit as in this case. For more
on the new law, see our collection of articles on the new law, plus the text
of the law itself.

~~~~~~~
  Mindy Chapman, Esq., Mindy Chapman & Associates

Mindy is a nationally recognized authority in EEO laws and is a contributing
editor to the HR Specialist: Employment Law monthly newsletter. She is
highly regarded for her workplace compliance training that "clicks and
sticks," because it is practical and memorable. She is also the coauthor of
the American Bar Association's bestseller and authority on civil rights
training, "Case Dismissed! Taking Your Harassment Prevention Training to
Trial."

The Society for Human Resources Management (SHRM) has recognized Mindy as
one of its Top Ten Speakers nationally. She has trained extensively in all
industries at all levels of the workforce-from boardroom executives to
managers and supervisors and to hourly employees in union and non-union
environments.

View all articles by Mindy Chapman, Esq., Mindy Chapman & Associates


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