May 2004 Quick Clips

Department of Labor Issues New COBRA Rules, May 26, 2004

Under the Consolidated Omnibus Budget Reconciliation Act (COBRA) passed many years ago, Congress adopted a law requiring employers to offer health insurance continuation coverage to employees and their dependents about to lose their coverage through termination, divorce, etc. It has come to be known as COBRA continuation coverage. Today, the Department of Labor will issue new rules concerning the notice requirements under COBRA, which will go into effect in 60 days. A more comprehensive description of these changes will appear later on this website.

Too Many Cooks Spoil ADA Claim, May 26, 2004

by Frank L. Kollman

A federal appeals court has ruled that an employer does not have to permit an employee's lawyer and vocational counselor to participate in the process to determine what, if any, reasonable accommodation can be made for an employee's disability under the ADA. While noting that outside participation may be helpful to the process, the court refused to rule that the employer's failure to include these outsiders was a violation of the law. The ADA claim was dismissed because the accommodation the employee demanded was essentially the creation of a new job for him. Ammons v. Aramark Uniform Services, Inc., No. 03-1036 (7th Cir., May 21, 2004).

Diabetes Not a Disability Under the ADA, May 25, 2004

by Frank L. Kollman

The U.S. Supreme Court has allowed a lower court decision that diabetes is not a disability under the Americans with Disabilities Act to stand. Orr v. Wal-Mart Stores Inc., No. 03-1353 (U.S.S.Ct., May 24, 2004). The employee in this case, a pharmacist at Wal-Mart, wanted his employer to accommodate his "disability" by allowing him an uninterrupted lunch break to deal with his insulin and diet requirements. The lower court had found that health conditions that cause "moderate" limitations on major life activities were not disabilities under the ADA, choosing instead to find that limitations had to be "substantial" to qualify.

When Supervisor Demands Sex, Is Employer Liable? May 5, 2004

It's every employer's nightmare: a supervisor, without upper management's knowledge, pressures a subordinate into having sexual relationships with him, and she complies for fear of an adverse effect on her employment. Will the employer be liable for the supervisor's bad acts? Not if it has a policy in place against sexual harassment, offers a complaint procedure, promptly investigates reported wrongdoing, and disciplines offenders appropriately, before the victim has suffered an adverse employment action such as firing or demotion, says one federal court.

A public safety aide lost her case against a Florida police department on just that basis (the so-called Faragher/Ellerth defense, named after two Supreme Court cases defining the defense). The aide argued that the sexual demands made her job intolerable, and she pointed to other federal court decisions holding that the Faragher/Ellerth defense is not available in those situations. The Florida court disagreed, however, setting up the potential for a Supreme Court resolution.

Speaks v. Lakeland, Fla., No. 8:02-cv-1833- T-30MSS (M.D. Fla. April 21, 2004).

Job Security for Lawbreaking Janitor, May 5, 2004

Raise your hand if you're OK with the idea that your janitor is secretly photographing and audiotaping her co-workers. No? You think she should be fired? Well, first consult your collective bargaining agreement and see what misdeeds justify an employee's discharge for cause.

A school system in Pennsylvania was bound by a labor agreement permitting an employee to be discharged if convicted of a felony. The custodian, who admitted wrongdoing, was charged with a felony but, because of a plea agreement, never convicted of a felony. So, an arbitrator ordered reinstatement (along with back pay from the date the felony charges were dropped), and a Pennsylvania court upheld the arbitration result.

Lesson? Don't sign a labor agreement that prevents common sense from controlling the decision to discharge a lawbreaking employee.

Norristown Area Sch. Dist. v. Norristown Educ. Support Personnel Ass'n, 2004 WL 877061 (Pa. Commonwealth, April 26, 2004).

Of God, Lesbians, and Discrimination, May 1, 2004

In a recent decision, the Ninth Circuit Court of Appeals tackled religion, sexual orientation, and harassment all in the same case. When a supervisor, who is an Evangelical Christian, discovered that one of her subordinates is a lesbian, the supervisor went on a crusade. Stating that, "Sometimes there is a higher calling than a company policy," the supervisor "coached" the employee about sin, closed her office door and prayed with the employee, took the employee to church at least once, and bought the employee a ticket to a "Women of Faith Conference." When the employee eventually complained, the company fired the supervisor for harassing the employee. The right call? Sure. But that did not protect the company from a lawsuit – the supervisor promptly sued the Company for religious discrimination. Although the company prevailed, it was compelled to endure a lawsuit, motions for summary judgment, and an appeal to the United States Court of Appeals. So, should the employer have fired the supervisor? Sometimes, employers simply are condemned if they do, and condemned if they don't.

Refusal to Return Employee out on FMLA Leave to Previous Position Not Necessarily a Violation, May 1, 2004

May an employer ever refuse to return an employee to her previous position, or to a similar position, after she returns from FMLA leave? The answer is "yes" – as long as the employer would have taken the same employment action regardless of the leave. In a recent case, a grade school principal returned from FMLA leave to find that she had been demoted to perform teacher's aid administrative tasks. When she sued for violations of the FMLA, the School Board explained that the principal was not demoted because she took leave, but because of excessive absenteeism, poor performance, and the rapid decline of her school. The Court acknowledged that the FMLA does not protect employees from actions that the employer would have taken regardless of whether she took leave, and it refused to grant summary judgment to the teacher. Demoting an employee out on FMLA leave still is a risky proposition, but it is not an absolute prohibition.

Kollman & Saucier, P.A., The Business Law Building, 1823 York Road, Timonium, MD 21093 Phone: 410-727-4300
Fax: 410-727-4391 © 1999 - 2010 Kollman & Saucier, P.A. All rights reserved.
Website maintained by Armistead Technologies, Llc.^tm