Pautsch, Spognardi & Baiocchi Legal Group LLP
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In This Issue
ADA Quiz- Answers
Supreme Court Takes Up "Silence in Contract" Issue to Determine If Class Action Arbitration Can be Compelled
                  December 10, 2018


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Last week we featured a Quiz on ADA in commemoration of the passing of President George H. W. Bush. This week we provide you with the answers.
Every day our clients confront tough questions regarding their employees' illnesses and injuries and how they impact workplace duties. Some of these are one-time, short term incidents while some are long-term chronic incidents----and many raise questions under ADA, FMLA and workers' compensation, sometimes called the 'Bermuda Triangle' because quite frankly it is easy for employers to make mistakes and get lost in this murky area. Add in collective bargaining agreements and employee benefit plans that must be considered and it's safe to say------Watch out: Danger Ahead! 
1 .Congress passed, and the President George H. W. Bush signed into law, the Americans with Disabilities Act of 1991. Seventeen years later, his son George W. Bush signed into law the Americans with Disabilities Amendments Act of 2008 which expanded several key provisions of ADA.

TRUE, as one saw at his funeral, it was viewed as one of 41's greatest legacies.
2. Cancer is a "disability" covered by ADA.

FALSE---- in the sense that it is a flat-out assertion that it is. As terrible of a disease as cancer is, there are cases of cancer that are covered as a "disability" under ADA, while there are cases where it is not. Remember each case is decided on an "individualized assessment" of whether the employee presents with having  "physical or mental impairment or condition" that "substantially limits a major life activity" including "working" or is perceived as having such an impairment or a record of such an impairment.
3. If an employee or applicant is collecting Social Security Disability under the SSDI program they can still make a viable claim under ADA to request or demand a job accommodation. 

TRUE---It is "viable" only in the sense that it is not an automatic bar to such a claim if the employee or applicant can establish reasons or extenuating circumstances why he or she is able to claim that they can do the job in question and also be able to simultaneously claim that they are sufficiently able to meet the SSDI definition of "disability." Not an easy task, but the Supreme Court said they should at least be given a chance to explain why this is not incongruent before their case is dismissed.
4. " Disability"  as defined under ADA, is the same as the term ---"serious health condition" is defined under the Family and Medical Leave Act. 

FALSE. The terms "disability" and the terms "serious health condition" have vastly different meanings and should be carefully understood before dealing with any potential accommodation issue and especially leave request. There are many differences between the two terms, but the chief among these is that the FMLA term "serious health condition" can and often does cover short-term episodes of illness or injury, while the ADA-covered "disability" does not.
5. If it is obvious that you will not be able to accommodate an employee's or applicant's  clear and obvious disability you need not ask the employee/applicant about ways that you might be able to accommodate it. 

FALSE. This is a significant mistake to make in the accommodation process. Most courts have found that the mere, simple failure to engage in the interactive process of determining whether an accommodation is feasible, or at the end of the analysis----reasonable, is a violation of ADA. Even in jurisdictions which don't find this to be an automatic and separate violation, you will have some severe explaining to do as to why you didn't at least start the interactive process, particularly in termination cases.
6. If an applicant for a job cannot fill in your job application due to a disability, you need not consider them further. 

FALSE.  The need to accommodate disabilities in your work place, as we like to put it, begins at Day Zero----meaning BEFORE the applicant is hired. So if an applicant needs an accommodation during the application process and it can be given without undue hardship, then it should be. The easiest example is an application in braille for an individual with a visual impairment. More difficult questions are being faced in this world of virtual or computer driven hiring.
 7. Even if you provide "light duty" for individual employees returning from workers compensation leave, you can maintain a rule which  states that you need not provide it to employees who are injured off the job. 

FALSE. At least without a great degree of scrutiny from the EEOC and plaintiff, who are pressing numerous cases testing this sort of light duty program. The argument they are making is that if the employer can provide such a program for worker compensation claimants in an effort to get them back to gainful employment (and off comp) then it is reasonable to hold that it is reasonable to apply such a program to other workers with a disability.
8. Carpal Tunnel Syndrome is a "disability" covered by ADA. 

FALSE---- for the all of the same reasons as set forth in answering #2 above with regard to cancer. It may be and may not be depending on the circumstances.
9. An individual who suffers a severe compound fracture of the arm that completely heals in four months' time is likely to be considered covered by ADAA's definition of "disability". 

TRUE and FALSE------This presents a very close case and we would need more facts (and a judge) to decide whether or not this is a disability. In Summers vs. Altarum, the Fourth Circuit US Court of Appeals wrestled with similar facts involving a severely fractured leg but one that would impact the employee's walking abilities for seven months, instead of being completely healed after four months as in our example. The court held that the employee had a covered disability emphasizing ADAAA's more expansive definition of "disability." Query as to whether this analysis would hold true if the impairment was expected to last less than seven months, given that ADAAA does contain a provision that states that a presumption favoring coverage of a disability starts at the length of six months.
1 0. It is completely acceptable and a "best practice", to limit all leaves of absence to one(1) year.

FALSE-- It is a particularly dangerous practice as this has become a target for the EEOC's class action program as they are relying on the accepted teaching from the Supreme Court that the assessment of and accommodation for disabilities must be done on an INDIVIDUALIZED basis. The EEOC contends that a "one rule fits all" approach to this violates this fundamental principle of ADA.
As one can see, ADA deals with questions of great importance. Again----Watch out: Danger Ahead! And feel free to call their attorneys at PSB with your toughest accommodation problems.
SCOTUS heard arguments recently on whether an employer can be compelled to engage in class arbitration, where the contract is silent on the issue.  Lamps Plus v. Varela.  The case involves employees seeking class arbitration alleging negligence in protecting their confidential tax information from a hack. 
The Ninth Circuit Court of Appeals, upheld the district court's finding that the employees could proceed as a class, because the agreement was silent on the issue, and state law required that ambiguous provisions be construed against the drafter.  The employer argued that the Federal Arbitration Act and the Supreme Court's decision in Stolt-Nielsen SA v. AnimalFeeds International Corp. require express consent.  In Stolt-Nielson, SCOTUS held that, absent a "contractual basis" in requiring class arbitration, the claims must be arbitrated individually.
Thinking of implementing a mandatory arbitration program that waives class action arbitration?  While this is a promising way to shield an organization from class action litigation, and require individual arbitration, it requires careful drafting and specificity.  Call any PSB attorney if you would like help with developing your program.          

PAUTSCH, SPOGNARDI & BAIOCCHI LEGAL GROUP is a law firm dedicated to finding common sense, affordable solutions for businesses to labor, employment, human resource and general business needs. With over 75 combined years of experience among its 3 founding partners in these areas, we can assist businesses in developing custom solutions to today's tough issues.  And as litigators, who combined have over thousands of trials  "under their belts" before state and federal courts as well as administrative agencies (such as the NLRB) you will find no better advocate and partner. 


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