Compliance Memos: March 2019

DMEC Staff@Work

Compliance Memos_March 2019Immediate Accommodation Not Required: 6th Circuit

In Brumley v. United Parcel Service, the 6th Circuit U.S. Court of Appeals held that an “employer’s refusal to provide an accommodation to the position of the employee’s choice immediately upon the employee’s request is not, in and of itself, a failure to accommodate” under the Americans with Disabilities Act (ADA). In seven months following a work injury, Brumley had a workers’ compensation claim, temporary alternative work, and temporary disability. This was followed by discussions about an ADA accommodation while Brumley was off work, but she was released to full duty and returned to work. Brumley claimed a failure to accommodate and sued for back wages for the period of the accommodation discussions, but fell short in court. To learn more, visit http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0258p-06.pdf.

Courts Find Regular Attendance Is an Essential Job Function

Recent decisions by three U.S. Appeals Courts held that even employees with a disability are generally required to comply with company attendance policies. In  Vitti v. Macy’s Inc. (2nd Circuit), Trautman v. Time Warner Cable Texas (5th Circuit), and Lipp v. Cargill Meat Sols. Corp. (8th Circuit), the courts found that employees claiming disability discrimination were lawfully terminated for attendance policy violations and affirmed summary judgment for the employers. Two cases involved excessive violation of attendance policies. In Vitti, the plaintiff argued that she was terminated because of her disability based on close timing between her excused medical leave and her termination; the court rejected this argument because Macy’s began progressively disciplining Vitti prior to her medical leave. To learn more, visit http://dmec.org/2019/01/04/appellate-courts-agree-regular-attendance-is-essential-function-of-most-jobs/.

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