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Leave Under the Americans with Disabilities Act Is Not a Free Pass to Not Work

Lawsuits can go either way in court, as this plaintiff discovered when she lost her case.

While there are many reasons to file a lawsuit under the Americans with Disabilities Act (ADA), those reasons must be valid when tested by the courts. If they are not, the plaintiff may lose his case. This is what happened in Samper v. Providence St. Vincent Med. Ctr., 9th Cir., 4/11/12,” said Timothy Coffey, a Chicago employment lawyer and principal attorney for The Coffey Law Office, P. C., an employment litigation firm dedicated to representing employees in the workplace.

In Samper, the plaintiff neonatal intensive care nurse was a fibromyalgia sufferer, experiencing chronic pain and an inability to sleep soundly or restfully. Her unplanned absences from work were more than allowed, according to the terms of her job description. In working with the nurse to try and accommodate her medical issues, the hospital agreed to a very flexible schedule that would allow her to move her shift, should she be having a bad fibromyalgia symptom day.

Even with the new very flexible shift arrangement, her rate of attendance in the workplace did not get any better, so the hospital fired her. The nurse chose to sue the employer under the ADA, alleging they did not offer her reasonable accommodation, as outlined in the ADA. The hospital’s defense was that, while they did acknowledge she was disabled, they did not feel that an open-ended pass to be absent for work was reasonable, not in a job such as working in the neonatal intensive care unit, where her physical presence as essential.

If the worker was not present at the hospital in the neonatal intensive care unit, then she could not perform her job, whether she had a flexible schedule or not. Since that was the case, and that the nurse could not do her work at home, she should not be considered a qualified individual protected under the auspices of the ADA.

When this case got to court, the legal question of the day was whether or not showing up for work on a predictable basis was essential. The decision was that a nurse in the intensive care unit must be in attendance, not only because it was essential, but because it was a matter of life or death. The defendant won this case,” said Coffey.

Not all cases that go to court win, and there is a valuable lesson inherent in this case. Predictably showing up for work is essential, or a job cannot be done. This fact must be a part of the job description, to be fair to employees by outlining everything expected of them. Additionally, the employer must make an effort to offer reasonable accommodations for a worker. This hospital made a significant accommodation for this nurse, but she wanted that to exempt her from the very essential nature of the job: being in regular attendance. This means it was not afforded protection under the ADA.

Timothy J. Coffey is a Chicago employment lawyer with, and owner of, The Coffey Law Office, P.C., a Chicago employment litigation firm. To learn more, visit http://www.employmentlawcounsel.com

This entry was posted on Thursday, September 27th, 2012 at 6:15 pm and is filed under News and Press
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There is a Proper Way to Issue Severance for Reduction in Force Situations, Says Chicago Employment Lawyer

There is a right way and a wrong way to issue severances. Employers need to follow a strict protocol or run afoul of the law.

To avoid a charge of ageism, or age discrimination, there are rules a company needs to follow if their reorganization or consolidation process ends up affecting older workers. An older worker may well feel he is losing his job because of his age and that management chose to reorganize to have the chance to let him go,” said Timothy Coffey, a Chicago employment lawyer and principal attorney for The Coffey Law Office, P. C., an employment litigation firm dedicated to representing employees in the workplace.

If a company has its head on straight, they will structure any layoffs or reduction in their workforce by approaching it strictly in a business-like manner, clearly outlining the reasons for all changes and/or the blending of positions. They need to also be able to demonstrate why another worker was given the new position, based on qualifications,” Coffey said.

If someone in a company makes off-the-cuff remarks about age, it would be harder for them to prove that age was not a determining factor in letting an older worker go. A case in point is Duffy v. Belk, Inc., No. 11-1757, 4th Cir., 2012, where a 63-year-old customer relationship manager was re-organized out of a job.

What happened in this case is that the store merged his job with the job of company vice president and then offered the newly creation position to the woman currently holding the VP job. The lady was 43-years-old. Although the man was offered other jobs, he turned them down for two reasons: they did not pay what he was used to making, and they were lesser-ranked jobs. He sued the company, alleging he should have been offered the new position and that he did not get it because of age discrimination,” Coffey said.

When the case got to court, the process the furniture company had used to reduce their workforce was explained in great detail. It involved combining common job functions and reducing duplication in the workplace. The woman was offered the newly blended job, as she had an MBA and credible job experience in an area where the company wanted to expand in the future.

There had been no criticism of older workers in the workplace, remarks made about bringing in younger blood or any other incidents that indicated to the court that they were antagonistic towards older managers. The court discharged the man’s case.

However, this case could just as easily have gone the other way, with a win for the plaintiff, if there had been any indications of age discrimination. If employers want to treat their employees fairly when it comes to reorganizing or reducing their workforce, they need to have every step and reason carefully documented,” said Coffey.

Timothy J. Coffey is a Chicago employment lawyer with, and owner of, The Coffey Law Office, P.C., a Chicago employment litigation firm. To learn more, visit http://www.employmentlawcounsel.com

This entry was posted on Sunday, September 16th, 2012 at 6:15 pm and is filed under News and Press
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