Two of the more difficult reasonable accommodation requests that employers see are requests to be excused from shift and/or job rotation requirements. Last week, the federal Eighth Circuit Court of Appeals held in Kallail v. Alliant Energy Corporate Services, Inc. that an employer’s shift rotation requirement was an essential job function that permitted the employer to deny an employee’s request to be excused from the requirement as a reasonable accommodation for her Type I diabetes.
Continue Reading Eighth Circuit Holds Shift Rotation Can Be An Essential Job Function

Employers often defend against discrimination and retaliation claims by arguing that courts should not act like super human resources managers who second guess their employment decisions. A panel of the Sixth Circuit took that argument to heart in its May 8th decision in Seeger v. Cincinnati Bell Telephone Co., in which the court upheld summary judgment in favor of the employer on the ground that the employer had an “honest belief” that the plaintiff had engaged in disability fraud.

Tom Seeger was on FMLA leave for aback injury when he was spotted at the Cincinnati Oktoberfest by several of his co-workers. One of the employees contacted human resources to say at Seeger was able to walk 50 to 75 feet, seemingly unimpaired. During the employer’s investigation, however, others remarked that Seeger seemed to to be in pain. The employer’s investigation investigation also included an interview of Seeger and a review of his medical records, disability file and employment history. Seeger was suspended and was given an opportunity to submit a statement as well as a statement from his physician. After considering all of this information, the employer decided that Seeger’s activity at Oktoberfest was inconsistent with his claimed disability and terminated him for disability fraud.

Seeger filed suit for interference with his FMLA rights and for retaliation in violation of the FMLA. With respect to the interference claim, the court concluded that Seeger had been given all of the FMLA leave he had requested since he had actually returned to full duty during the course of the investigation. With respect to the retaliation claim, the court noted the closeness in time between the FMLA leave and the termination, but concluded that CBT made a “reasonably informed and considered decision” before it terminated Seeger, and that Seeger has failed to show that CBT’s decision-making process was unworthy of credence.Continue Reading Sixth Circuit Rejects FMLA Retaliation Claim Based On Employer’s Honest Belief That Employee Had Committed Fraud

The EEOC recently issued a revised publication on the employment of veterans with disabilities. According to the EEOC, the publication reflects changes in the law made by the ADA Amendments Act of 2008 (ADAAA), which made it easier for persons, including veterans, to establish they meet the definition of “disability.” The wide range of impairments

Yesterday, the EEOC released its Final Rule implementing the American with Disabilities Act Amendments Act, which we discussed back in September 2008 and which was signed by President George W. Bush on September 25, 2008. The Final Rule, which runs 202 pages long, includes many revisions. But the most significant revisions as discussed in the EEOC’s Fact Sheet are:
Continue Reading EEOC Releases Final Rule on ADAAA-Expect Continued Increase in Disability Charges

On Wednesday, September 17, by voice vote, the House of Representatives approved the Senate version of the ADA Amendments Act (ADAAA) (S.3406), which the Senate had unanimously approved last week. The White House immediately issued a statement stating that President Bush looks forward to signing the bill into law. Once signed, the ADAAA will take effect on January 1, 2009.
Continue Reading ADA Amendments Act Passed by House and Senate; President Expected to Sign Bill