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 Sara Eber Fowler

Seyfarth Synopsis: Last minute scheduling change?  Want to make sure you have enough employees on stand-by to cover shifts?  In a growing number of areas around the country, that will cost you. 

Fair scheduling laws – sometimes referred to as “predictive” or “predictable” scheduling – are popping up in city councils and state legislatures across the nation. Typically affecting larger retail employers or fast-food establishments, the laws often require employers to post work schedules with advance notice and mandate a specified amount of “predictability pay” – such as one hour of pay for every four hours of scheduled work – if changes are made to an employee’s schedule on short notice.  These laws also tend to require predictability pay if employees are “on call” but not called in to work, and some restrict the ability to schedule employees for closing and opening shifts (“clopenings”).

San Francisco was the first to pass a law of this kind, which went into effect in July 2015. But in the past year, more states and cities have passed – or are considering – similar legislation.  In June, Oregon became the first state to pass a fair scheduling law (effective July 2018).  Emeryville, CA and Seattle enacted scheduling laws that went into effect July 1, 2017, and New York City’s recently passed ordinance will be enforceable as of November 26, 2017.

Other states and municipalities (including Congress) have introduced predictable scheduling legislation, including Arizona, California, Chicago, Connecticut, Maryland, Massachusetts, Minnesota, North Carolina, Ohio, and Washington, D.C. (Georgia, on the other hand, has taken the opposite approach, and passed a law that prohibits municipalities from passing a law that would require predictability pay.)

The theory behind these laws is that uncertainty in scheduling and last-minute scheduling changes wreak havoc on employees’ ability to plan for caregiving needs, hold second jobs or attend school, and plan their income. Several national retailers have already been forgoing “on-call” scheduling practices, irrespective of any legal mandate.

Retailers should be mindful of these new scheduling laws, particularly for those who have operations in affected jurisdictions. Bear in mind that each law varies.  In Seattle, for example, schedules must be posted 14 days in advance and employees are entitled to receive half-time pay for any shift they are “on-call” but not called to work.  New York City’s law, on the other hand, only requires schedules to be posted with 72 hours’ notice, but bans on-call scheduling altogether.

Many of the proposed and enacted laws also create an “interactive process” obligation – similar to the Americans with Disabilities Act – whereby employers are required to have a dialogue with employees about scheduling preferences and scheduling accommodation requests, and in some instances must grant such requests absent a bona fide business reason. They also generally prohibit retaliation against employees who request changes to their schedules.

Each statute also contains its own unique exceptions. Most do not require predictability pay if operational needs change due to natural disasters or other unforeseen changes, or if an employee requests a scheduling change, volunteers for a change, or swaps shifts.  Oregon’s law calls for the creation of a “voluntary standby list” of employees who may be called upon to work unexpected hours without receiving additional compensation.

Given the differentiation in these laws, employers with national retail operations should review their scheduling policies to ensure compliance with local laws and train management about the penalties associated with last-minute scheduling changes. For some, adopting a broad policy curbing on-call scheduling, providing advance notice of schedules, and creating voluntary “standby” lists may be helpful to comply with these varying laws with minimal interruption to business operations.

For more information on this or any related topic please contact the author, your Seyfarth attorney, or any member of the Absence Management & Accommodations Team or the Workplace Policies and Handbooks Team.

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 Christopher W. Kelleher, Tracy M. Billows, and Joshua D. Seidman

Seyfarth Synopsis: The Illinois General Assembly will consider the proposed Healthy Workplace Act which, if passed into law, will require most Illinois employers to provide paid sick leave to their employees.

Illinois legislators have caught the paid sick leave bug that has been going around the Country. Sponsors from both chambers of the Illinois legislature have introduced a bill called the Healthy Workplace Act which, if adopted, will mandate paid sick leave for Illinois workers.

Under the proposed law (House Bill 2771/Senate Bill 1296), employees would be entitled to a minimum of five “paid sick days” each year to: (1) care for their own physical or mental illness, injury, or health condition, or seek medical diagnosis or care; (2) care for family member for the same reasons; (3) attend a medical appointment for themselves or family members; (4) miss work due to a public health emergency; or (5) miss work because the employee or a family member has experienced domestic violence abuse.

Employees would accrue one hour of paid sick time for every 40 hours worked. This includes FLSA-exempt employees, who would be deemed to work 40 hours each week for accrual purposes in most cases.

There is some potential for tension if and when the new law is passed.

For instance:

  • Employees will be entitled to determine how much sick time they need to use, but employers will be allowed to set a “reasonable minimum increment” which cannot exceed four hours per day;
  • Employers will also be able to ask for “certification” of the illness, injury, or health condition when employees take paid sick leave for three consecutive workdays. However, “[a]ny reasonable documentation” will suffice if it meets certain criteria;
  • Employers must treat the health information of both employees and their family members confidentially, and cannot disclose this information without the employee’s permission;
  • Paid sick days must be provided at the employee’s oral request, but if need for a sick day is foreseeable, the employee must give at least seven days’ notice before leave begins. If need for a sick day is not foreseeable, however, then employees should provide notice “as soon as is practicable”;
  • And finally, while employers must not discriminate or retaliate against employees for using paid sick leave, they may discipline employees for abusing paid sick leave.

The Bill, which has accumulated dozens of co-sponsors in both houses, was presented for a second reading on March 29, 2017. Stay tuned for further developments.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Absence Management & Accommodations Team or the Workplace Policies and Handbooks Team.


By Anne S. Bider, Robert A. Fisher, and James M. Hlawek

Seyfarth Synopsis: On February 5, 2017, in M.C.A.D. v. Country Bank for Savings, the Massachusetts Commission Against Discrimination (“MCAD”) held that an employer engaged in unlawful disability discrimination when it terminated an employee whose medical leave had ended and who could not provide a definite return to work date. The MCAD found that the employer had an obligation to engage in the interactive process to determine if extending the requested leave was a reasonable accommodation for the employee’s disability.

What should an employer do when an employee whose medical leave has ended cannot provide a return to work date? Fire the employee?  Not so fast.  The MCAD recently found that it was unlawful for an employer to terminate such an employee without engaging in the interactive process to determine if an extension of the employee’s leave would be reasonable.

The Facts

The Complainant was a loan coordinator for Country Bank for Savings. In September 2009, she went on an approved 12-week FMLA leave to give birth.  The leave was scheduled to end on November 30, 2009.  In October, following delivery of her child, Complainant was diagnosed with post-partum depression and notified the Bank that she would not be able to return to work on November 30, as planned.  She provided the Bank with documentation from her medical providers stating that, due to her condition, she would be out of work indefinitely.

On December 11, the Bank advised Complainant that, because her latest documentation did not provide a return date, her employment would be terminated if she did not return to work by December 21. In response, on December 17, Complainant called the Bank and told her supervisor that she hoped to return to work by mid-January.  The same day, Plaintiff’s attorney addressed a letter to the Bank requesting a short extension of Complainant’s leave as an accommodation to her post-partum depression, pending upcoming evaluations from Complainant’s medical providers in mid-January.  The letter stated that after Complainant’s mid-January appointments, she would advise the Bank whether a definite return date could be set.

On December 22, the Bank terminated the Complainant’s employment without further discussion with Complainant because she had not returned to work by December 21 and had not provided a return to work date.

The MCAD’s Decision

The MCAD held that in terminating Complainant’s employment without engaging in dialogue about her return to work date, the Bank discriminated against Complainant on the basis of disability in violation of state law. The MCAD found that once Complainant identified her disability and requested an extended leave, the Bank was obligated to engage in a dialogue with Complainant to determine if the extended leave was a reasonable accommodation.  Here, the Bank mistakenly relied on the 12-week period required by the FMLA as a measure of reasonableness and assumed that all requests for leave beyond the 12-week period were automatically unreasonable.  In addition, the Bank failed to produce any evidence that an extension of Complainant’s leave until mid-January would impose an undue burden on its operations or finances.

What This Decision Means For Employers

This decision reminds employers not to be rigid in administering medical leave. In some circumstances, an extended leave — even beyond the FMLA’s 12-week limit — may be a reasonable accommodation.

Further, the decision demonstrates the importance of the interactive process. Even when an employee is unable to provide a return to work date following exhaustion of medical leave, employers have an obligation to continue the interactive process to determine if a reasonable accommodation is possible.  In this case, the employer should have extended the Complainant’s medical leave for a couple of weeks because there was at least a suggestion that she could have provided a return date by then, unless doing so would have imposed an undue burden.  As the MCAD acknowledged, if the Complainant could not provide a return date by then and had no prognosis for improvement, the obligation to extend her leave likely would have ended.

In short, the decision shows the importance of flexibility, reasonableness, and interaction in dealing with employees who are unable to return from medical leave.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Absence Management & Accommodations Team or the Workplace Policies and Handbooks Team.