Heyl Royster


Heyl Royster


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Seventh Circuit Broadens Scope of Physical Conditions Covered by the ADA

Two recent decisions make clear that since the 2008 amendments to the ADA, employers must be even more careful when determining whether a condition is a disability or not, and what - if any - employment actions may be taken.

First, in Spurling v. C & M Fine Pack, Inc., 739 F.3d 1055 (7th Cir. 2014), a company fired the plaintiff after he repeatedly fell asleep while on the job. The Seventh Circuit reversed the trial court's finding and held that the employer, given its notice of the employee's potential physical condition, should have explored possible accommodations, including providing additional time for the employee to be medically evaluated. Implicitly, the court takes the position that employers must be more cognizant and careful when dealing with employees who report that a medical condition is impacting their ability to work.

While the decision in Spurling requires employers to be more careful when a medical condition is reported to them, the decision in Gogos v. AMS Mechanical Systems, Inc., 737 F.3d 1170 (7th Cir. 2013), shows how far the door has been opened to what qualifies as a disability under the 2008 amendments to the ADA. The 2008 amendments expanded the law and recognized for the first time that impairment could rise to the level of a protected "disability" even if it was transitory, minor, or temporary in nature. Indeed, a condition that is episodic, in remission, or managed by medicine may rise to the level of a disability if the condition substantially limits a major life activity when active. In Gogos, the court held that the plaintiff's single incident of a blood pressure spike and intermittent blindness was covered by the ADA. In doing so, the court emphasized that the relevant issue is not the duration of the incident, but rather whether the condition substantially impairs a major life activity when the incident occurred.

The United States Supreme Court Affirms the Seventh Circuit's Decision that "Donning andDoffing" of Work Gear Under a Collective Bargaining Agreement is "Changing Clothes"Under FLSA Section 203(o)

In Sandifer v. U.S. Steel Corp, 134 S.Ct. 870 (2014), the U.S. Supreme Court upheld the Seventh Circuit decision that time spent by an employee "donning and doffing" protective gear was time spent "changing clothes" under Section 203(o) of the Fair Labor Standards Act ("FLSA"). Fair Labor Standards Act, 29 U.S.C.A. § 203(o) (West 2013). This section gives parties to a collective bargaining agreement the ability to bargain over the compensability of such time at the beginning and end of the work day.

This case is only applicable to situations involving a union workforce and when this issue has been the subject of fair bargaining between the union and the employer. Sandifer, 134 S. Ct. at 879. However, if the state in which the employee is employed has a more restrictive or stringent law applicable to the payment of time spent "donning and doffing" than the FLSA's provisions, the employer must follow the state law and may not be afforded the Section 203(o) exception to compensating for this time. As with all FLSA cases, this one serves as another reminder for employers to carefully review and regularly audit all payroll, time keeping and compensation practices.

OSHA Form 300A Was Due on February 1

Each and every employer who is required to keep OSHA Form 300, also known as The Injury and Illness Log must post the Form 300A, Summary of Work-Related Injuries and Illnesses, in a conspicuous workplace common area between February 1, 2014 and April 30, 2014. All non-exempt employers with more than 10 employees must post the form. Businesses that employ fewer than 10 workers or those that fall into an exempted category must also record injuries if OSHA or the Department of Labor's Bureau of Labor requires them to do so. Exempt businesses are businesses that are classified as low hazards and include categories such as beauty salons, some retail establishments, and certain medical offices. Employers are only required to post the 300A summary, not the full log. However, the full log must be available for inspection by employees, their representatives, or OSHA investigators upon request. Employers with multiple job sites should keep a separate log and summary for each location that is expected to be operational for at least a year.

Obesity May Be a Disability under the ADA

The Americans with Disabilities Act ("ADA,") prohibits, among other things, an employer from discriminating against an employee with a disability on the basis of that disability. The Federal District Court for the Northern District of Illinois recently interpreted the definition of disability to include obesity. Luster-Malone v. Cook Cnty., No. 11 CV 09277, 2013 WL 6508070 (N.D. Ill. Dec. 12, 2013). While the EEOC's ADA interpretive guidelines provide that obesity is a disability in "rare circumstances" only, the court in this case ruled that an administrative assistant who claimed to have had weight-related difficulty walking across a parking lot near the end of her employment might be one of those rare circumstances. The court contemplated whether there was sufficient evidence to establish an ADA-covered disability if the case had gone to a jury. It further found that the plaintiff's claims that a supervisor allegedly cursed, made derogatory statements, and commented that "[the plaintiff's] big fat . . . needs to concentrate on losing weight" were possible evidence of the supervisor's animus towards overweight individuals. Luster-Malone, 2013 WL 6508070 at *5. The court ultimately granted summary judgment to the employer, confirming a labor arbitrator's determination that the plaintiff's termination was based on fraudulent time theft and insubordination and not based on weight-related issues.

Reports by the EEOC Establish that Employers Paid Out More Money in Settlements in FY 2013 Than Ever Before

The Equal Employment Opportunity Commission's ("EEOC") administrative division raked in a record $372.1 million in voluntary payments from private sector employers in fiscal year ("FY") 2013 (9/2012-9/2013) according to its December Performance Accountability Report. This figure constitutes the highest in the Commission's history, surpassing FY 2012 by nearly $7 million.

This amount represents sums paid through reported settlements, EEOC-sponsored mediation, and conciliation efforts to about 70,522 individual private sector employees. It does not include amounts paid after a lawsuit was filed whether the case settled or went to verdict.

The Commission reported resolving nearly 14,000 fewer charges in FY 2013 (97, 252) than it did in FY 2012. This indicates an increase in the average amount employers agreed to pay per charge.