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ICYMI: Our Social Media Posts This Week – Apr. 28 - May 4 2019

Below is a review of the posts (on Facebook, LinkedIn, and Twitter) from the past week. You can check out the full posts by clicking on the links.

In the post on Sunday 4/28/19 we saw that a worker's accommodation request negates a "regarded as" claim. Know how the law works. Here, an UPS employee injured his shoulder and was on narcotics. He could not return to his regular position. He started the ADA accommodation process. How that progressed is in the post. How and why the court analyzed the facts as it did are also in the post.

TAKEAWAY: Remember, the employer does not need to provide the accommodation requested by the employee or create a new position; it only needs to provide a reasonable accommodation (absent undue hardship).

The post on Monday 4/29/19 was about a City hit with a $7 Million sex discrimination verdict. Not settlement, verdict. Ok, it was in LA, but still, a verdict! Lili was a former police chief; she alleged sex discrimination over 14 years of service. It included comments from department members that are noted in the post and that they mocked her Peruvian ethnicity. Oh yes, there's more; see the post for the mayor's text after Lili was fired. She sued and the jury returned this verdict.

TAKEAWAY: Train your employees, all of them, and don't make snide comments; it doesn’t play in your favor when heard by a jury.

The post on Tuesday 4/30/19 was about condo owners who have had it with contractor delays. Know who - builder, Association, owner - has what obligation of repair, replacement, and maintenance. So what was at issue here? Sloppy work around a utility box, siding no longer attached, and more noted in the post. Nobody would want to live in a place with all of those issues. The association members certainly didn't, especially when their basements flooded. The contractor had comments – see the post. That doesn’t help the owners.

TAKEAWAY: Make sure all work is to be done by reputable contractors; consider getting insurance or a bond if the job is beg enough.

The post on Wednesday 5/1/19 noted that bashful bladders bring problems for employers. Yes you really should read this. And yes, it is about marijuana in the workplace. Can employers take action if a worker is a legal medical marijuana user? What about drug testing policies? The post notes some laws that may come into play for pre- and post-employment drug tests, including urine tests. What if the employee takes a while trying to provide the sample, so the monitor checks to see what's happening. The employee still cannot provide a sample because of a shy bladder (or undisclosed medical condition). Is that really the case or is it drug use? In one, the ADA or ADEA may be implicated; in the other, not. The types of things that should happen if this is a medical issue are in the post; employers should take heed to stay legal.

TAKEAWAY: Make sure you know what you can, cannot and must do when marijuana enters the equation – consult an employment lawyer to be sure.

In the post on Thursday 5/2/19 we read about being fired for violating HIPAA, not FMLA. The plaintiff was a medical secretary in Pennsylvania; she requested and was approved for numerous periods of intermitted FMLA leave to care for her daughter. In July, she asked for more frequent leave; that too was approved in September. After that, a patient filed a complaint about the plaintiff; the substance is in the post. The employer investigated the complaint and found it to be credible – and a violation of policy. The plaintiff was terminated and then sued, alleging FMLA interference. The allegations are in the post. Also in the post is what happened with plaintiff's requested FMLA leave. The court looked at that and the proximity of FMLA leave to the discharge; the analysis is in the post, along with the intervening event that made the discharge legal.

TAKEAWAY: Even when there is a legitimate, nondiscriminatory reason for adverse action, make sure to follow the entire process – it can only help your defense in case of suit.

The post on Friday 5/3/19 was about I hate my boss: federal court shuts down ADA request for less stressful boss. We all know that the ADAA broadened the scope of disability and made it possible for ore employees to claim coverage under the Act. What we also all know is that doesn't mean every single employee is entitled to protection. Here, Carol worked for Caterpillar for 19 years. In 2015 she started to report work-related stress. She took FMLA leave. Upon return, the company took the steps noted in the post. Her work did not improve so she was put on a PIP. She complained (see the post for the reason) and then alleged retaliation was visited on her. She took a leave of absence and was able to return without doctor's restriction, but with a recommendation noted in the post. She then parlayed that into something a bit bigger, which the company refused. It continued to refuse her request even after another approved leave. She retired and sued. The appellate court ruled in favor of Caterpillar on the ADA claim; its reasoning is in the post. It also let the retaliation claim go forward; again, its reasoning is in the post.

TAKEAWAY: Know what is required for eligibility for ADA protection and what might be deemed a retaliatory action – protect yourself against both.

Finally, in the post yesterday 5/4/19 we saw that an employee's strong performance record keeps ADA suit alive. Know how the facts will (or may) play out. The plaintiff was a dental practice manager with many positive performance reviews over 11 years. The latest? See the post. She told HR of a medical diagnosis (the post mentions what and the accommodation she would have needed) and was fired just over a week later. The court denied summary judgment to the employee for the reasons noted in the post.

TAKEAWAY: It's always a good idea to have support for an adverse action – but not support for a claim that the action was illegal. Talk to an employment lawyer about the adverse action, basis, and timing.

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