Americans with Disabilities Act

By Kelsey P. Montgomery

Seyfarth Synopsis: Employee committed to taking opioids loses his job and his disability discrimination lawsuit because he refused to consider alternative pain management.

The “interactive process” required by the Americans with Disabilities Act (ADA), as amended by the ADA Amendments Act, is a two-way street between an employee and his or her employer.  Consistent with this mutual obligation, a federal court in Ohio recently dismissed a lawsuit filed by a former employee who refused to consider alternative pain management for his degenerative disc disease and arthritis in his neck and back.

In Sloan v. Repacorp, Inc., No. 3:16-cv-00161 (S.D. Ohio Feb. 27, 2018), the plaintiff worked as a production manager for Repacorp, which manufactures and prints labels using heavy machinery.  While Sloan’s job required him to spend only a small portion of his time working on heavy machinery, he always worked around this equipment and his working environment was extremely dangerous.  As a safety precaution, Repacorp maintained a policy requiring employees to notify management if they were taking nonprescription or prescription medication.

A year before his termination, Sloan began taking morphine and Vicodin while at work.  Occasionally, he took the morphine in a manner inconsistent with his prescription and he did not have a prescription for Vicodin.  He secured the Vicodin from his mother and a co-worker.  Sloan did not inform his supervisor, or anyone else at Repacorp, that he was taking these medications.  After several months of using these opioids at work, an employee reported to management that Sloan was obtaining Vicodin from his colleague.  He was immediately removed from the manufacturing floor and required to submit to a drug test.

When he tested positive for hydrocodone (an  in Vicodin), Repacorp placed Sloan on leave and referred him to its Employee Assistance Program.  While on leave, Sloan disclosed his morphine prescription.  Fearing a “huge liability,”  Repacorp asked if there were alternative, non-opioid treatments for his pain condition that would not put the company and Sloan at risk.  Although Sloan tried, he was unable to reach his physician to make this inquiry.  He then told the company president, without having consulted his doctor, that he needed to “stay on [his] medication” and that he “wouldn’t stop taking it.”  The company president believed Sloan “chose drugs over his job.”  Because Repacorp did not have any positions that would permit an employee to safely use opioids in the workplace, Repacorp terminated Sloan’s employment following this conversation.

Sloan subsequently filed a lawsuit against Repacorp, alleging disability discrimination under Ohio law and the ADA.  He claimed that Repacorp failed to accommodate his disabilities by refusing to grant his request to use prescription morphine.  Sloan argued that he could have safely performed his job while taking the medication, and that his employer should have conducted a “direct threat” analysis before denying his request.  The Court disagreed, finding that Sloan impeded Repacorp’s ability to investigate the extent of his disability and the breadth of potential accommodations that it might have reasonably afforded to him by refusing to cooperate with the company’s request for additional information.  Without this information, Repacorp could not determine whether Sloan was a qualified individual able to do his job either with or without a reasonable accommodation.  Accordingly, the Court granted Repacorp’s Motion for Summary Judgement and dismissed Sloan’s case.

Employer Take Away

An employer should conduct an individualized assessment to determine whether it can accommodate an employee’s disability.  Had Repacorp simply terminated Sloan for violating its policy against taking medications at work, the Court likely would have decided this case differently.  Thus, it serves as a good reminder for employers to always document their attempts to engage in the interactive process.  If an employee is terminated after refusing to engage with his or her employer, the employer will have a strong defense to any subsequent disability discrimination claim.

For more information on this topic, please contact the authors, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Workplace Policies and Handbooks Team or the Labor & Employment Team.

By Ariel D. Fenster

Seyfarth Synopsis: The Sixth Circuit Court of Appeals recently held that telecommuting can be a reasonable accommodation under the ADA when the employee is able to perform the essential functions of the position remotely and the request is for a finite period. Mosby-Meachem v. Memphis Light, Gas & Water Division, No 17-5483 (6th Cir. 2018).

The Facts

The Plaintiff, an in-house attorney for Memphis Light, Gas & Water Division (MLG&W), requested to work from home for ten weeks while she was on bedrest from pregnancy complications.  MLG&W denied the request.

MLG&W maintained a rather strict policy that attorneys must be in the office from 8:30 am – 5:00 pm.  “However, [it] did not maintain a formal written telecommuting policy at that time, and in practice, employees often telecommuted.”

MLG&W argued that physical presence was an essential function of Plaintiff’s position. Plaintiff stood her ground and stated she was able to perform the essential functions of her position remotely.  In fact, Plaintiff knew she could perform the job remotely.  During the dispute over whether Plaintiff could telecommute, she was also working remotely.  Plaintiff also previously worked remotely for two weeks several years prior.

At trial and in favor of Plaintiff’s disability discrimination claim, the jury awarded Plaintiff $92,000 in compensatory damages and $18,184.32 in back pay.

The Sixth Circuit affirmed.  In its finding, the Court noted that MLG&W failed to engage in an interactive process as required by the ADA to determine if working remotely was appropriate. The Court further noted that one of MLG&W’s key pieces of evidence, the job description, was significantly outdated and unreliable (20 years old outdated!).

Additional Guidance

Unfortunately for employers, there is no bright line test on the issue.  Just a handful of cases have weighed in on the “telecommute dispute.”  The two most notable cases come out of the Sixth Circuit, Williams v. AT&T Mobility Services, LLC, and EEOC v. Ford Motor CoThe cases are distinguishable from Mosby-Meachem for two reasons.  First in Williams and Ford, the employees never previously worked remotely.  Second, the requests to work remotely were for unlimited periods.

Just last month, in Morris-Huse v. Geico, the Middle District of Florida granted Defendant’s Motion for Summary Judgment holding that telecommuting was not a reasonable accommodation because Plaintiff’s physical presence was an essential function of her position.  The Court, like many other courts, reasoned that telecommute disputes are highly fact specific and require a true inquiry into the essential functions of the employee’s position.

For some additional guidance, the EEOC has issued some limited guidance on the matter.

Five Helpful Tips

While there is no hard and fast rule as to whether telecommuting is a reasonable accommodation under the ADA, here are five tips that may avoid putting you in a telecommute dispute:

  1. Evaluate each and every accommodation request on a case by case basis.
  2. Engage in the interactive process with the employee.
  3. Determine if the telecommuting is for a finite period of time.
  4. Think about whether the employee will be able to perform the essential functions of his or her position while telecommuting.
  5. Maintain up-to date job descriptions that accurately reflect the essential functions of each position.

For more information on this topic, please contact the author, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Workplace Policies and Handbooks Team or the Labor & Employment Team.

By John P. Phillips

Seyfarth Synopsis: Complying with the ADA, particularly when an employee has a mental health-related disability, can be challenging. Fortunately, a recent decision out of the Seventh Circuit provides helpful guidance for employers struggling to accommodate employees with mental health issues while at the same time maintaining safe and productive workplaces. The decision makes clear that in the appropriate circumstances, employers can require an employee to undergo a mental health examination as part of a fitness-for-duty test. The decision—and the New Year—also provides a good excuse for employers to evaluate their ADA policies and procedures.

Every year, employers and HR Departments around the country struggle to comply with the requirements of the ADA. At the same time, ADA-related issues continue to become more complicated, and the individualized nature of disability claims mean that even the most accommodating employers can find themselves making tough decisions—and then having to defend those decisions.

On top of this, there has been a steady rise in employees taking prescription drugs or receiving some form of psychiatric or other mental health treatment. In many cases, these employees have no problem performing their jobs, and no issues arise. However, when these employees begin to struggle in their jobs or, even worse, when they engage in problematic and sometimes aggressive behavior toward co-workers, employers must balance ADA compliance with maintaining safe and professional workplaces. This will continue to be difficult, but a recent decision from the U.S. Court of Appeals for the Seventh Circuit provides some helpful guidance.

Background on the Case

In Painter v. Illinois Department of Transportation, the Seventh Circuit recently considered when an employer can required an employee to undergo a mental health examination. In that case, Painter, the plaintiff, was a problematic employee, who snapped and screamed at co-workers, gave them blank stares, constantly mumbled to herself, repeatedly banged drawers in her office, was confrontational and argumentative, and began keeping a detailed log of interactions with co-workers during working time, often drafting more than one entry per hour. Painter even sent a concerning email to her union representative, in which she referenced “something” being “dead” and which prompted her union representative to contact the police.

Faced with numerous employee concerns and continued difficulties with Painter, her employer, the Illinois Department of Transportation (“IDOT”), asked that she undergo a fitness-for-duty exam. Initially, IDOT referred Painter to an occupational-medicine specialist, who in turn referred her to a psychiatrist because he noted that Painter could be bipolar. Eventually, after several doctor visits, administrative leave, and continued co-worker and supervisor complaints, IDOT asked Painter to undergo two fitness-for-duty exams with a psychiatrist. At first the psychiatrist cleared Painter to return to work, but when the complaints and concerning behavior continued (and after Painter sent the threatening email to her union representative), the psychiatrist found that Painter was unfit for duty because of her “paranoid thinking and the highly disruptive behavior which results from her paranoia.” Painter then brought suit, alleging that IDOT’s requirement that she see a psychiatrist violated the ADA.

The Seventh Circuit’s Reasoning

Under the ADA, employers are prohibited from requiring their workers to undergo medical exams, unless the exams are “job-related and consistent with business necessity.” Courts across the country have held that the job-related and business necessity test is a difficult burden for employers to meet. Luckily, the Seventh Circuit took a pragmatic view of IDOT’s decision to require psychiatric exams. The Court stated that when the employer “has a reasonable belief based on objective evidence that a medical condition will impair an employee’s ability to perform essential job functions or that the employee will pose a threat due to a medical condition,” the employer may require a medical exam. The Court also noted that preventing employers from endangering their co-workers is a business necessity, and the Court found that “[e]mployers need not retain workers who, because of a disability, might harm someone; such a rule would force an employer to risk a negligence suit to avoid violating the ADA.”

Applying this legal framework to the facts of the case, the Seventh Circuit ruled that, as a matter of law, the psychiatrist examinations were job-related and consistent with business necessity because IDOT reasonably believed that Painter might be a danger to herself and co-workers. Thus, IDOT did not violate the ADA.

Takeaways and Best Practices

The Seventh Circuit’s decision is welcome news for employers, and it injects much needed common sense into the ADA case law. In particular, employers and HR Departments can consider asking employees to see a psychiatrist for a fitness-for-duty exam in the right circumstances. However, employers must still be careful that any medical examination they require an employee to undergo is directly related to a reasonable belief that the employee cannot perform the essential functions of his or her job.

In addition, there are a number of other proactive steps employers can consider to help ensure that disability-related issues are handled appropriately, such as (1) providing ADA and disability training to supervisors and managers, (2) referring all disability claims to HR, (3) implementing a written procedure for dealing with disability claims, (4) going through the interactive process in all instances, (5) ensuring all job descriptions are up-to-date and accurate, (6) documenting everything, and (7) working with a competent physician or medical professional, as appropriate.

ADA and disability-related issues will only continue to proliferate in today’s workplace. Fortunately, at least one court has recognized the practical necessities employers face when complying with the ADA. By knowing the requirements of the ADA and taking proactive steps to ensure compliance, employers can put themselves in the best possible position to handle all disability-related issues appropriately and minimize any legal risk.


By Rachel Hoffer, John P. Phillips and Mahek Bhojani

Seyfarth Synopsis: In a recent win for employers, the Fifth Circuit clarified that opened-ended or unlimited requests to work from home are unreasonable under the Americans with Disabilities Act (“ADA”) and may be rejected during the interactive process. In addition, the Court instructed lower courts to give preference over other factors to the employer’s judgment about what constitutes the “essential functions” of a particular job.

In today’s hyper-connected world, with more and more workers seeking to telecommute, the EEOC and plaintiffs’ attorneys often take the position that working from home should always be a viable and obligatory accommodation under the ADA. Employers, especially those who allow limited telecommuting, often find themselves defending failure-to-accommodate claims after rejecting requests for unlimited telecommuting.  Fortunately for employers, the Fifth Circuit recently ruled that in most cases employers do not have an obligation to allow telecommuting as a reasonable accommodation.  In addition, the Court reaffirmed that, in determining what job functions are truly “essential,” an employer’s judgment takes precedence over all other factors.

This case makes clear that open-ended telecommuting is rarely required under the ADA, and it also reassures employers that it is their call which functions their jobs require. Because it’s up to employers to determine the essential functions of employees’ jobs, employers should take the time to reexamine their job descriptions, make sure they are up to date, and ensure that they accurately reflect the requirements of the job.  This exercise will help employers navigate the interactive process when employees seek reasonable accommodations, and will assist employers in arriving at fair, reasonable, and defensible resolutions of disability-related issues.

Case Background

In Credeur v. State of Louisiana, Renee Credeur, a former litigation attorney for the Office of Attorney General for the State of Louisiana (aka the Louisiana DOJ), brought suit against her employer for allegedly failing to accommodate her inability to work in the office following a kidney transplant, and for harassment and retaliation, under the ADA and the Louisiana Employment Discrimination Law.

In May 2010, Ms. Credeur underwent a kidney transplant and was granted an accommodation to work from home for approximately six months. She then returned to work in the office full time but three years later began experiencing complications.  Starting in October 2013 and continuing through March 2014, because of ongoing medical complications, she was granted permission to work from home.  In March 2014, the Louisiana DOJ told her that she would not be allowed to work from home indefinitely and that she was required to work in the office at least 3-4 hours a day.  She did not return to work, however, but instead applied for and was granted FMLA and additional unpaid leave from April through August 2014.  When her leave ran out in early August 2014, the Louisiana DOJ again asked Ms. Credeur to return to the office and notified her that litigation attorneys could not work from home indefinitely.

Ms. Credeur subsequently brought suit against the State of Louisiana, claiming that she should have been allowed to work from home indefinitely and as long as her doctors recommended it because working in the office was not an essential function of her job. The district court granted summary judgment for the State of Louisiana.  On appeal, the Fifth Circuit affirmed the district court’s decision, holding that the ADA did not require the employer to allow Ms. Credeur to work from home indefinitely.

The Court’s Analysis of the Failure-to-Accommodate Claim

The Fifth Circuit analyzed whether regular office attendance was an essential function of the litigation attorney’s job. Ms. Credeur argued it was not because she had successfully worked from home in the past, and that by crediting the DOJ’s statements and rejecting her testimony, the district court had engaged in impermissible credibility determinations at the summary-judgment stage. In reaching a contrary conclusion, the Court first reaffirmed that “regular work-site attendance is an essential function of most jobs.”  This is especially true, the Court continued, when the position is interactive and involves a significant degree of teamwork.

To determine what constitutes an essential function, the Court noted that the ADA itself mentions only the “employer’s judgment”—and any written job descriptions—on that issue.  The Court also referred to the EEOC’s ADA regulations, which identify several other factors, including the amount of time spent performing the particular function, the consequences of not performing it, and the work experience of past incumbents, among others.  Importantly for employers, the Court explained that “we must give greatest weight to the ‘employer’s judgment.’”  The Court further concluded that “[a]n employee’s unsupported testimony that she could perform her job functions from home” is insufficient to avoid summary judgment.

With respect to the specific position at issue, the Court reviewed contemporary emails from DOJ personnel and consistent testimony of Ms. Credeur’s supervisors to conclude that regular attendance in the office was an essential function of the litigation attorney job, that Ms. Credeur’s continued absence from the workplace created significant problems for her department and prevented her from executing her work effectively and efficiently, and that her request to work from home on an open-ended basis was not reasonable.

Takeaways for Employers

The Fifth Circuit’s decision joins an increasing number of courts holding that regular workplace attendance is an essential function. This decision also establishes that requests for unlimited or open-ended telecommuting in most cases is not a reasonable accommodation under the ADA.  In addition, the decision emphasizes that courts must give weight to the employer’s own judgment about what constitutes an essential job function.  While helpful, employers will not be able to take full advantage of the ruling unless they have accurate, up-to-date job descriptions that identify the essential functions of the job—including factors requiring regular attendance at the workplace.  Take this opportunity to examine and update your job descriptions.


By Kevin A. Fritz

Photo-Bush-300x199Signed into law today, 25 years ago, on July 26, 1990, the Americans with Disabilities Act is the most comprehensive civil rights law designed to prohibit discrimination against people with disabilities.

Each year since its passage, more people with disabilities are entering the workforce, earning income, and spending and consuming goods. Good access makes good business sense. By reaching customers with disabilities, businesses obtain more customers and improve their image.

In the spirit of anniversary of this legislation, here are 25 easy ways to make your business more accessible to customers with disabilities:

  1. If the main entrance of your business is not wheelchair accessible but there is an alternate accessible entrance, post clear signage by the main entrance giving directions. Also add the International Symbol of Accessibility at the accessible entrance and include key accessibility information about access, parking, or other services on your website (g., the rooftop bar is only accessible via stairs).
  2. Keep your lowered accessible counter clear at all times. Do not store or display items on this counter.
  3. Where there are corners, steps, and edges, mark these with high visibility contrasting colored material so that they can be easily seen.
  4. If your business provides table or bar seating, make sure you have accessible seating for wheelchair users. A table that provides space underneath the top that is 30” wide, 17” deep, and 27” high, with a top that is between 28” and 34” from the ground is accessible.
  5. Keep walkways and accessible parking access aisles clear and free from clutter or snow, and make sure your premises are well lit. Keep any bushes, trees, or flower arrangements near your business clipped so there are no low hanging hazards for persons who are blind or have low vision, or overgrown bushes obstructing the path of travel for those using wheelchairs or other mobility aides.
  6. Signage for permanent rooms, such as restrooms, must have braille and raised lettering. The background and foreground must contrast.
  7. Doors that are heavy and hard to open can be very difficult to use for the elderly or people who use wheelchairs or mobility aids. Adjust closers so that the doors require less force to open.
  8. In bathrooms, make sure wastebaskets or other moveable objects do not obstruct clear spaces next to the doors. Similarly, in accessible wheelchair stalls, keep the area around the toilet and under the sink clear. Doing so ensures that persons using wheelchairs can safely operate the door and navigate.
  9. If your place of business is not accessible for wheelchair users because there are steps at the entrance, consider how you can provide the goods and services to such customers in an alternative fashion (g., personal shopper, home delivery, or home visit service).
  10. Welcome service animals into your establishment. If you don’t know if it’s a service animal, you can ask two questions: (1) Do you need this animal because of a disability? (2) What work or tasks has this animal been trained to perform?
  11. When choosing signage, language matters. Instead of signs that use the word “handicapped” –which is considered offensive by many people with disabilities – opt for signs that use the word “accessible.”
  12. Consider how persons with disabilities will be evacuated from your facility in an emergency, and include that procedure in your emergency evacuation plan. Make sure your employees know the procedure.
  13. Use people first language when referring to someone with a disability. Refer to a person as an individual with a disability rather than a “disabled person,” or a “handicapped person.” In that vein, refer to a person as one who uses a wheelchair (rather than one “confined” to one) or one who is blind (rather than one who “suffers” from blindness).
  14. When speaking with a person with a disability who has a companion, direct your comments to the person with a disability to that person, not the companion – unless specifically instructed otherwise by the person with a disability.
  15. With all written information, structure content in a logical order using plain English and avoiding long sentences.
  16. People who are deaf make phone calls using a telecommunications relay service (TRS). Accept calls made through such services and treat them the same as other calls.
  17. Be prepared to read menus to customers who are blind or have low vision. Posting menus online provides such customers another way of reviewing the menu (using assistive technology such as screen readers) before they visit the restaurant.
  18. Make sure your employees are prepared to interact with customers who are blind or deaf. They should be ready to read written documents to customers who are blind or have low vision and to exchange notes with customers who are deaf, hard of hearing, or have difficulty speaking. Have a pad of paper handy for this purpose.
  19. People with hearing, speech, or sight disabilities may require extra time or a quiet area to talk with staff. Be patient with the extra attention that might be necessary to understand what is being said and how to assist.
  20. Make sure that your accessible register or checkout lane is always open when the store is open.
  21. Always ask first if a person with a disability needs assistance, never assume.
  22. If a customer who is blind needs to be led to a location in your business, offer the person your arm. Wait for them to accept the assistance.
  23. If a person with a disability requests that you modify a policy or provide additional assistance, consider the request meaningfully. There may be a legal requirement to do it. For example, if your business requires a driver’s license to rent an item, consider accepting another form of state-issued identification for an individual who is blind or physically unable to drive a vehicle.
  24. If you have a pool lift, make sure it is out and ready to be used (e., battery charged and lift uncovered) at all times when the pool is open.
  25. Customer feedback is a great opportunity to learn about your customers and their thoughts on how accessible your business actually is. Be open to receiving feedback and act on it. You may be preventing a lawsuit in the process.

Businesses can make it easier for people with disabilities – as well as other customers – to access and purchase the services or products they have to offer. In short, accessibility pays dividends and makes good business sense.

Kevin Fritz is an associate in the Chicago office of Seyfarth Shaw LLP where he focuses his practice on complex discrimination litigation, workplace counseling and solutions, and access defense.

By: Gena B. Usenheimer and Samuel Sverdlov

Of the issues arising under the Americans with Disabilities Act (“ADA”), few are more nuanced and complex than an employer’s rights and responsibilities regarding employees with an alcohol addiction or dependence.  Commercial truck drivers present a unique issue as companies that employ drivers to spend long hours on the road present safety concerns that are not present in all industries.  Yet, such companies are not exempt from the requirements of the ADA (and similar state and city laws) that prohibit discrimination against an employee who is a “qualified individual with a disability.”

Under the ADA, determining whether an employee is a “qualified individual with a disability” involves a two-step inquiry.  First, to be “disabled” an individual must have “a physical or mental impairment that substantially limits one or more of the major life activities of an individual,” “a record of such impairment,” or is “regarded as having such impairment.”  Such individuals are “qualified” when they can “satisfy the requisite skill, experience, education and other job-related requirements” and “perform essential functions of a position with or without reasonable accommodation.”

The United States Court of Appeals for the Eleventh Circuit recently addressed the issue of an employer’s liability for terminating a commercial truck driver who suffered from alcoholism, a condition that is often considered a disability under the ADA.  The focus of the Court’s analysis was on the relevant Department of Transportation (“DOT”) regulations which provide that a person with a “current clinical diagnosis of alcoholism” is not qualified to drive a commercial motor vehicle.  The regulations do not, however, instruct who makes the final determination of whether an employee has a current diagnosis of alcoholism—the employer or the DOT (or other) medical provider.  And this is where the dispute arose:  following the plaintiff-employee’s leave of absence to receive treatment for alcoholism, he obtained clearance by a DOT medical examiner that he was fit to return to work.  However, the defendant-employer received contrary guidance from the plaintiff’s alcohol treatment counselor, who diagnosed him with “alcohol dependence or alcoholism.”

The plaintiff argued that the DOT medical examiner determined he did not suffer from a current diagnosis of alcoholism, as evidenced by his having cleared the plaintiff to return to work, and that the DOT’s finding should be determinative with respect to this ability to drive a commercial truck.  The defendant, in contrast, argued that it is the employer’s obligation to make the final determination as to who is qualified to drive a commercial truck and that the treatment counselor’s diagnosis provided objectively reasonable evidence that the plaintiff did suffer from a current clinical diagnosis of alcoholism.  The Eleventh Circuit agreed with the defendant, finding DOT regulations place the onus on an employer to ensure its employees are qualified to drive a commercial vehicle.  Based on this, and the diagnosis from the treatment counselor, the Eleventh Circuit agreed that the defendant reasonably determined the Plaintiff was not qualified under the DOT regulations to drive a commercial vehicle and therefore did not violate the ADA in refusing to reinstate him.

While this decision appears to signal some leeway for employers in determining whether employees are qualified individuals with a disability, the Court’s holding will likely be limited to the particular facts of the case as DOT regulations apply to a niche subset of employers.  And while the heightened public safety concerns present in this case were not specifically addressed by the Court, they no doubt played a role in its decision.  Accordingly, employers operating outside of the DOT sphere should still continue to exercise caution when seeking to terminate or otherwise discipline employees with alcohol addictions.