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ADA update: Courts delineate disability

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Page 1: ADA update: Courts delineate disability

ADA Update: Courts Delineate The Americans with Disabilities Act (ADA) was heralded by predictions that the fine points of accommodating disabilities would be subject to judicial interpretation. Recent court cases have examined some of the law's gray areas, as compiled by the California-based law firm Ballard, Rosenberg & Golper.

Accommodating an alcoholic employee is perhaps one of the most difficult of situations. In the case of Gosvener v. Coastal Corp., decided in California appellate court, the Ballard firm repre- sented an employer that had fired an alcoholic employee who tried, but failed to stay sober-- thus dropping his end of a work agreement. In 1993 a two-year- old agreement fell apart, in which the employer had assigned the shift supervisor to less- stressful duty (at full salary), had assisted the man with treatment, and had allowed him on the job - -a t a chemical refinery-- while in therapy.

When the employee an- nounced that he had resumed drinking the two parties made a "last chance" agreement that called in part for exemplary attendance. All for naught-- the employee missed 11 days of work over a three-month span (saying he had the flu) and was terminated.

The California Court of Ap- peal upheld the termination, citing the employer's consider- able efforts on behalf of the employee and the fact that he had agreed to one last chance. Attorney Richard Rosenberg also noted that the justices found it significant that the employee held a "safety sensitive" position.

Examining another case, this one in the federal Fifth Circuit, Rosenberg reminds employers thoroughly to document essen- tial job functions. In the case of

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Rizzo v. Children's World Learning Center, Inc., a teacher's aide with a hearing impairment was re- moved from her position as a driver ofvanloads of children. While she could hear emergency vehicles, she could not assert that she could, for instance, hear a child choking in the back of the van. When she was reassigned to fewer hours preparing meals she resigned, suing the center under the ADA.The appellate court reversed a lower-court decision and ordered her reinstated. The court found that the ability to hear a choking child was not an essential function of the van- driver's job.

The First Circuit Court also considered a case involving es- sential job functions, in_Jacques v. Clean-Up Group, Inc. The em- ployer required workers to be at work at 8:00 aM. It asserted that this was an essential job function. One worker was unable to arrive until 10:00 AM due to driving restrictions stemming from the individual's epilepsy. In response to the individual's constant tardi- ness, the employer reassigned the worker to a job that the indi- vidual regarded as undesirable. He simply stopped coming to work. The court held that since the worker could not perform an essential function, of the job (being ready for work at 8:00), he was not qualified for the job under the ADA.

Courts have upheld employers who discipline employees for poor performance in situations where workers fail to reveal any disability. Rosenberg notes three cases that support this "common-sense notion." In Simpkins u. Specialty EnueIope the Sixth Circuit Court of Appeals ruled that an employee who lost her job during an incident of severe depression was not pro- tected because she never told her employee about her condition. The woman, who was personnel director for Specialty Envelope, ran screaming from the office

one day, and was summarily fired. The appellate court affirmed a finding of no ADA violation, because the woman never re- vealed her condition. Moreover, the court found that this was a "temporary, nonchronic impair- ment" rather than a disability.

Likewise, in Taylor u. Principal Finance Group, Inc., an employee was fired following diagnosis of bipolar disorder. While the em- ployee did mention this condi- tion to a manager who was criti- cizing his job performance, the manager was not familiar with that term. The court held that the employee failed properly to apprise the employer of his manic-depressive condition.

Finally, an illiterate job appli- cant who requested an oral ex- amination for a custodial position never gave the reason for her request. As related in the case of Morisky u, Broward County, the county officials refused the re- quest because they believe the ability to read is an essential job requirement. The Eleventh Cir- cuit court held that the woman had not properly put the em- ployer on notice. On her job application she had merely indi- cated that she completed "special education courses." The court said that was not specific enough.

A jury in California will de- cide whether a man was fired for a perceiued disability (Holihan u. Lud~y Stores). Lucky Stores be- lieved the man had a disabling mental condition and put him on an eight-month leave of absence. The man started a sign-painting business and sold real estate in the interim, causing the company to terminate his employment. The trial court found him not disabled under the ADA (because of his businesses). The appellate court, however, wanted a jury to determine whether the man was fired for a perceived disability. Happily, the court rejected the man's contention that sign mak- ing and real-estate sales were forms of therapy. - - G . PV..

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