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Articles by Heather C. Panick
Overtime Can Be An Essential Job Function
A recent decision from the District Court for the District of Nebraska serves as a reminder that overtime can be an essential job function. See McNeil v. Union Pac. R.R._ 2018 U.S. Dist. LEXIS 85250.
Overtime Can Be An Essential Job Function | JD Supra
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Louisiana Court Of Appeals Highlights The Need For Clear Vacation Policies | JD Supra
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Louisiana Court of Appeals Highlights the Need For Clear Vacation Policies
The Louisiana Court of Appeals—Fourth Circuit, recently overturned a trial court’s determination that an employee of a pest control company was not entitled to the payout of his accrued, but unused, vacation leave. Contrary to the findings of the trial court, the Court found that the terms of the policy were ambiguous and therefore, the employee’s interpretation should prevail. See Bodenheimer v. Carrolton Pest Control & Termite Co., Case No. 2017-CA-0595 (La Ct. App. Feb. 14, 2018).
The Fate Of The EEOC’s Wellness Regulations Is Still Uncertain
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Wellness Regulation Fate Undecided
In October 2016, AARP sued the Equal Employment Opportunity Commission (“EEOC”) under the Administrative Procedures Act (“APA”) arguing that there was no explanation for the shift in the EEOC’s position relating to what makes participation in a wellness program “voluntary”.
Pennsylvania FMLA ADA
The U.S. District Court for the Middle District of Pennsylvania recently upheld an employer’s decision to terminate an employee under its policy against excessive absenteeism, in spite of the fact that the former employee had previously taken leave under the Family and Medical Leave Act (“FMLA”), because the absences at issue were not related to her FMLA qualified condition. See Bertig v. Julia Ribaudo Healthcare Grp., LLC, 2017 WH Cases2d 390378 (M.D. PA 2017).
Prior Entitlement To FMLA Leave Is Not A Free Ticket To Miss Work For Non-FMLA Covered Reasons
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Required Drug Test Violates Fourth Amendment
The federal court for the District of Columbia ruled that a former employee of the D.C. Office of the Chief Medical Examiner (“OCME”) could proceed to trial with her claims that drug and alcohol tests she was required to take violated her Fourth Amendment rights against unreasonable searches as well as the Americans with Disabilities Act. Lewis v. Gov’t of Dist. Columbia, No. 15-521 (D.D.C. October 18, 2017). Patricia Lewis worked as a Human Resources Advisor for the OCME.
Government Employee Can Proceed To Trial On Her Challenge To The District Of Columbia’s “Blanket” Drug And Alcohol Tests
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New Mexico Court Rules Employee Is Entitled To Nationwide Discovery in FMLA Case
On October 10, 2017, Judge Ritter issued the Memorandum Opinion and Order which granted a former employee’s Motion to Compel and held that the former employee was entitled to information from the company’s nationwide offices relating to other employees fired under the company’s 100% healed policy and other FMLA or ADA complaints. Matthew Donlin (“Donlin”) worked as a general manager for Petco (the “Company”).
Exemption To ACA Contraceptive Mandate Extended To For-Profit Entities And Individuals
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New Mexico Court Rules Employee Is Entitled To Nationwide Discovery In FMLA Case
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Federal Court Dismisses Employer’s Claims For Indemnification And Contribution Against Drug Testing Vendor After False Positive Drug Test Result
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FMLA Leave Does Not Shield An Employee From Disciplinary Action Unrelated To The Leave
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FMLA Leave Does Not Shield Employee From Disciplinary Action Unrelated To Leave
The Court of Appeals of North Carolina recently held that an employer didn’t interfere with an employee’s rights under the Family Medical Leave Act (“FMLA”) or retaliate against her by contacting her to schedule her disciplinary hearing while she was on FMLA leave. Jennings v. Univ. of N.C., N.C. Ct. App., No. COA16-1031, 7/5/17.
High School Teacher Is Determined To Not Be Disabled After She Accepts Another Teaching Position
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High School Teacher Is Determined To Not Be Disabled After She Accepts Another Teaching Position
Sharon Walker (“Walker”), a high school business teacher, brought suit against the Pulaski County Special School District (“PCSSD”) claiming that she had been discriminated against and retaliated against because of her disability in violation of the American with Disabilities Act (“ADA”). PCSSD filed a motion for summary judgment, and on May 1, 2017, it was granted by the U.S. District Court for the Eastern District of Arkansas.
Casino Employee’s ADA Claims Dismissed Due to Current Drug Use
A federal court in Nevada dismissed a casino employee’s American with Disabilities Act (“ADA”) claims — even though he had been treated for substance abuse in the past — because he admitted to current drug use which is not protected under the ADA. Scott v. Harrah’s LLC, No. 2:17-cv-01066-APG-VCF (D. Nev. May 9, 2017). Donald A. Scott Jr. (“Scott”) worked at Harrah’s Hotel & Casino (“Harrah’s”) from 2006 to 2015. In 2014, Scott informed Harrah’s that he suffered from drug addiction.
Licensed Medical Marijuana Caregiver’s Termination For Selling Drugs At Work Was Not Age Discrimination
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Licensed Medical Marijuana Caregiver’s Termination For Selling Drugs At Work Was Not Age Discrimination
A federal court in Michigan dismissed the age discrimination claim of a licensed medical marijuana caregiver who was terminated in connection with an investigation into drug activity at work. Henry v. Outback Steakhouse of Fla., LLC, No. 15-cv-10755 (E.D. Mich. April 18, 2017). Medical marijuana is legal in Michigan, but the drug still is illegal under federal law and employers may implement drug policies which prohibit the use or possession of drugs on their premises.
EEOC and Orion Energy Systems, Inc. Settle Wellness Case
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EEOC and Orion Energy Systems, Inc. Settle Wellness Case
On April 5, 2017 the Equal Employment Opportunity Commission (EEOC) announced that it had reached a settlement with Orion Energy Systems, Inc. (Orion) relating to the EEOC’s claims that Orion’s wellness program violated the American with Disabilities Act (ADA) because participation was involuntary, and that Orion retaliated against an employee who objected to the program. See here. This settlement comes after the mixed ruling by the U.S. District Court for the Eastern District of Wisconsin.
Congress Proposes Adding Parental Bereavement Leave to FMLA
On March 16th, a bipartisan group of Representatives, which included Paul Gosar, Don Beyer, Martha McSally, Brad Schneider, Tom Suozzi and Barbara Comstock, introduced the Parental Bereavement Act of 2017, also known as the Sarah Grace-Farley-Kluger Act. See H.R. 1560.
Employee Suspected of Drug Diversion Could Not Establish “Regarded as Disabled” Claim
An appellate court recently affirmed summary judgment in favor of a hospital that terminated the employment of a nurse for diverting medications, rejecting her claim that she had been perceived to be a drug addict by her employer. Demastus v. University Health System, Inc., No. E2016-00375-COA-R3-CV (Tenn. Ct. of Appeals March 2, 2017). Laura Lee Demastus worked as a nurse for University Health System, Inc. (the “Hospital”) for three years.
House Legislation Seeks to Harmonize Wellness Programs with ADA and GINA
On March 2, 2017, in an attempt to clear the murky waters surrounding wellness programs, Rep. Virginia Foxx, chairwoman of the House Committee on Education and the Workforce, introduced the Preserving Employee Wellness Programs Act (the “Act’) (H.R. 1313). In an effort to protect wellness plans, the Act reaffirms existing law which permits employee wellness programs to be linked to financial incentives. In introducing this legislation, Rep.
Employer Comes Up Smelling Like Roses in Reasonable Accommodation Case: Court Reminds Employee That She Can’t Always Get What She Wants
An employer’s failure to provide a fragrance-free work environment does not equate to a failure to provide a reasonable accommodation or an adverse action against an employee, according to the District Court for the Northern District of Illinois in Alanis v. Metra. In fact, this case reiterates that employers are not required to provide every accommodation requested by an employee.
Refusal to Submit to Drug Testing Requires Evidence of Intent, in Kansas Workers’ Compensation Case
An appellate court in Kansas ruled that an insufficient urine specimen, without evidence of intent to thwart the drug test, is not a refusal to submit to a test for purposes of the Workers’ Compensation Act. Byers v. Acme Foundry, 2017 Kan. App. LEXIS 12 (KS. Court of Appeals January 27, 2017). Mr. Byers was injured at work when a piece of metal struck his left elbow. He was taken to the emergency room for treatment.
AARP Suffers a Setback in its Challenge to the EEOC’s Wellness Regulations
As previously discussed, AARP has filed suit against the EEOC and challenged the agency’s wellness regulations. On December 29, 2016, this challenge suffered a setback. In the December 29, 2016 Memorandum Opinion, U.S. District Judge John D. Bates denied AARP’s request for preliminary injunction and held that the regulations would take effect on January 1, 2017.
EEOC Issues Guidance on Rights of Employees with Mental Health Conditions Under ADA
In continuation of its series of “resource” documents which provide guidance to individuals with medical conditions or work restrictions, on December 12, 2016, the EEOC issued a “resource” document titled “Depression, PTSD, and Other Mental Health Conditions in the Workplace: Your Legal Rights” which is intended to provide guidance on workplace rights for individuals with mental health conditions under the Americans with Disabilities Act (“ADA”).
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