Is Alcoholism a Disability Under the ADA?

Not always, says an 11th Circuit Court of Appeals.

An Eleventh Circuit panel on Wednesday reaffirmed summary judgment for a Georgia-based trucking company, in a suit filed by a former employee diagnosed with alcoholism who alleged the company violated the Americans with Disabilities Act and the Family and Medical Leave Act when it fired him in 2010.

The panel's opinion said it affirmed the lower court's decision because it believes it was correctly determined that Jarvela's diagnosis of alcoholism, issued by his personal physician a month before he was terminated, preempted his claims of being a qualified candidate for the job under the ADA and was in direct violation of company policy which prohibits it from employing anyone who has had a diagnosis of alcoholism within the past five years.

“Jarvela’s inability to meet a criterion of the 'physical qualification standards' regulation — in particular, the requirement that he have 'no current clinical diagnosis of alcoholism' — precluded him from 'performing' an essential function of his job as a motor vehicle driver,” the opinion said.  - Sakari Jarvela v. Crete Carrier Corp., case number 13-11601, in the U.S. Court of Appeals for the Eleventh Circuit

PRACTICE TIP:  Whether an applicant or employee is disabled under the ADA is determined on a case-by-case.  It is always good practice to engage in the interactive process and determine what, if any accommodation, can be provided by the employer.

The Affordable Care Act & Nursing Mothers

The Affordable Care Act (ACA) not only requires employers to review health care coverage.  It also amends the Fair Labor Standards Act (FLSA) with regard to nursing mothers.  Employers are required to provide a “reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk.” Employers are also required to provide “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.”  The FLSA requirement of break time for nursing mothers to express breast milk does not preempt State laws that provide greater protections to employees (for example, providing compensated break time, providing break time for exempt employees, or providing break time beyond 1 year after the child’s birth).

PRACTICE TIP:  Does your handbook have a policy addressing this?  If not, the best practice would be to include one in your Employee Handbook.  Alternatively, if asked by a pregnant employee for lactation breaks, know that the employer has federal obligations now.

NLRB May Have A Problem With Your "Work-Only" Email Policy

The National Labor Relations Board (NLRB) continues to keep its watchful eye on employee handbooks whose policies have a chilling effect on Section 7 rights.  Its latest move took away employers’ ability to create work-only email policies. The Board said policies that prohibit employees from using company-provided email accounts for personal matters infringe on workers rights under the National Labor Relations Act to take part in protected concerted activities — specifically discussing working conditions with co-workers.   Purple Communications, NLRB Case No. 21-CA-095151

PRACTICE TIP:  Review your handbook to determine whether the policies could be interpreted as prohibiting employees from discussing the terms and conditions of their employment. 

Saks Changes its Mind ...

Saks Fifth Avenue has dropped its position that federal anti-discrimination law does not cover transgender workers in a Texas lawsuit involving a former associate, saying Monday that it will instead challenge the merits of the employee's specific discrimination claims.

Saks filed a notice in federal court that it will withdraw a pending motion to dismiss plaintiff Leyth Jamal's complaint.  Instead, they've chosen to focus on the merits of the case while underscoring that Saks does not discriminate against transgender individuals.

Does Title VII Cover Transgender Individuals? The EEOC is encouraging the 5th Circuit that it does.

EEOC Backs Former Saks Worker's Transgender Bias Suit

The EEOC moved to file a brief that says Saks Fifth Avenue's bid to toss a discrimination and retaliation suit brought by former Saks Fifth Avenue worker Leyth Jamal ought to be denied and that discrimination against someone because they are transgender is cognizable as sex discrimination under Title VII.

In the Commission’s view, Saks’ argument to the contrary ignores Supreme Court precedent holding that discrimination against an individual because he or she does not conform to gender stereotypes is sex discrimination under Title VII ... and numerous appellate court decisions recognizing that transgender-based discrimination is sex discrimination,” the EEOC's proposed amicus brief said.

The Fifth Circuit has yet to rule on whether harassment and discharge of a worker because of transgender status is covered by Title VII's ban on sex discrimination, and the EEOC “has a strong interest in the resolution of this issue,” according to the motion for leave to file the amicus brief.

An employer's uniform policy does not necessarily violate the NLRA, says 3rd Circuit.

The D.C. Circuit directed the NLRB to review its decision regarding a commercial printer's requirement for employees to wear a baseball cap with only the company's logo.  The rule was not discriminatory against union insignia, as it was written.

Commercial printer’s ban on baseball caps without the company logo was over broad and barred union insignia, the D.C.Circuit ruled Friday, directing the NLRB to review its decision.

-World Color (USA) Corp. v. National Labor Relations Board, case number 14-1028, in the U.S. Court of Appeals for the District of Columbia Circuit.