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The Employer, Volume 6 No. 4

Seminar Announcement

Bugbee & Conkle, LLP will host its annual Employment Law Seminar on October 3, 2013 at the Holiday Inn French Quarter in Perrysburg, Ohio.  The seminar will begin at 1:00 P.M. with registration beginning at 12:30 P.M.  If you would like to attend this seminar, please contact Shannon Abbey at 419-244-6788 or sabbey@bugbeelawyers.com or  and filling out the requested information.

ADA Accommodation Must Enable Employee to Perform All Essential Function

Recently, the 6th Circuit Court of Appeals held an employee who was unable to complete her job responsibilities while on part time duty could not claim that her employer had to allow regular, ongoing part time work as a reasonable accommodation for her disability.  In White v. Security First Associated Agency Inc., a customer service rep suffered a non-work related back injury and was diagnosed with sciatica.  When she returned to work she had medical restrictions that limited her to no more than four hours of work a day.  She began  skipping work due to pain, and continued her pattern of absences until the company eventually terminated her.  She filed a lawsuit against the company, including a claim of discrimination under the ADA.  The trial court granted summary judgment on all of her claims.  On appeal, the 6th Circuit held that she could not show she was a qualified individual with a disability because an  essential function of her job was to work full time.  The company was able to show that full time work was an essential job function as it had never employed a customer service agent part time and the written job description stated the position was full time.  The 6th Circuit therefore concluded that her request to continue working part time was not a request for a “reasonable” accommodation, because it would require the company to create a new part time position, and the ADA does not require this from an employer.
This case exemplifies the importance of good employer documentation.  Here, the written job description specified that the position was full time, and the company proved it had never employed a part time customer service agent.  To successfully defend against ADA claims, it is important to review the  content of written job descriptions and make sure it matches the reality of the job.

Janelle M. Matuszak And Carolyn A. Davis Are Selected As Ohio Rising Stars

Each year, no more than 2.5 percent of the lawyers in the state are selected for this honor by the research team at Super Lawyers, a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. Bugbee & Conkle is proud to have these two “Rising Stars” on its legal team.

Court Orders Jury Trial on ADA Claims When an Employer Fails to Engage in the Interactive Process

On July 16, 2013, the U.S. District Court for Tennessee showed the dangers employers face when they ignore an employee’s request for a disability related accommodation.  In Hildebrand v. Dollar Gen. Corp., a former payroll employee who lost her vision in her left eye was fired by Dollar General for alleged poor performance.  Dollar General argued that the plaintiff was fired because she had not demonstrated significant improvement after being placed on a performance improvement plan.  However, the plaintiff alleged that she informed her supervisor about her vision impairment and asked about the possibility of using a larger computer monitor or a magnified screen to assist her in doing her job.  Her supervisors did not forward her accommodation requests, or denied them outright.  The court denied the company’s Motion for Summary Judgment because of its complete failure to engage in the “interactive process” with the plaintiff.
This case emphasizes the importance of insuring that employers engage in the interactive process required by the regulations implementing the ADA when an employee requests an accommodation on the basis of their disability.  It also emphasizes the importance of supervisor training to ensure a supervisor alerts HR when accommodations are requested.

December 1, 2013 Training Requirements for Revised Hazard Communication Standard

OSHA has revised its Hazard Communication Standard (HCS) to align with the United Nations’ Globally Harmonized System (GHS). Significant changes contained in the revised standard now require the use of new labeling elements in a standardized format for  Safety Data Sheets, formerly known as Material Safety Data Sheets. OSHA is phasing in the specific requirements over several years from December 1, 2013 to June 1, 2016. The first compliance date is December 1, 2013, requiring employers by that time to have trained their employees on the new labeling elements for the Safety Data Sheets (SDS). Training on label elements must include information on product identifiers, signal words, pictograms, hazard statements, precautionary statements, and contact information of the manufacturer, distributor, or importer of the chemicals. Training must also include information on how an employee might use the labels in the workplace. OSHA requires employers to present training information in a manner and language the employees can understand.  Please contact us if you have any questions regarding how this new standard applies to you.

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