Ohio Employer's Law Blog | Daily Updates | 01CBeware blanket exclusion policies under the ADA>01D plus more

Beware blanket exclusion policies under the ADA

Nicholas Siewertsen, deaf since birth, sued The Worthington Steel Company, claiming that it discriminated against him when it banned him from performing any job requiring him to operate forklifts or cranes.

From the time of his hiring in 2001 until the ban in 2011, Siewertsen operated forklifts, overhead cranes, and other motorized equipment without incident. He communicated with his co-workers using a variety of techniques and tools, including written messages on notepads, computer programs and text messages, hand gestures, and limited speech. In 2011, however, the plan human resources manager learned, apparently for the first time, that the company had a corporate-wide policy against deaf employees driving forklifts. Without considering Siewertsen’s decade of on-the-job performance, the company disqualified him from his current position, and transferred him, without a demotion in pay, to one of four menial jobs in the plant that did not require the use of forklifts or cranes. Siewertsen sued, claiming that the company violated the ADA by applying the no-forklifts-for-deaf-employees policy, and transferring him to another position. (Even though the transfer did not result in a reduction in pay, Siewertsen claimed the new position lacked any opportunities for promotion or advancement within the company).

The district court denied the employer’s motion for summary judgment, concluding that a jury should decide whether Worthington Steel satisfied its obligation to engage in an “individualized inquiry” as to whether Siewertsen could perform his job despite his disability:

The ADA mandates an individualized inquiry in determining whether an employee’s disability or other condition disqualifies him from a particular position. A proper evaluation involves consideration of the applicant’s personal characteristics, his actual medical condition, and the effect, if any, the condition may have on his ability to perform the job in question. At bottom, the individualized inquiry requires the employer to consider whether the employee, despite his disability, is capable of performing the essential functions of the job. (internal quotations and citations omitted.)

So, what is an employer to do when faced with an employee whose disability could prevent them from performing a job?

  1. Do not apply a blanket exclusion policies. The ADA mandates an individualized inquiry, and one who excludes a disabled employee pursuant to such a policy has shirked this obligation under the ADA.
  2. Inquire as to an employee’s past experiences and successes working, despite the limitations imposed by the disability.
  3. Consider reasonable accommodations that will enable the employee to perform the essential functions of the job.

If you do nothing other than apply a blanket policy, you will have a hard time showing a court that you engaged in the required individualized assessment. The ADA is intended to be a law of inclusion that breaks down barriers that prevents disabled employees from working. The more effort you took to attempt to break down those barriers and permit an disabled employee to work (even if it ends up not working out), the better position you will be in if a disabled employee sues you.


A stinker of an ADA lawsuit: employee claims illegal firing over excessive gas

A New Jersey pork roll manufacturer is accused of unlawfully firing an employee because of his excessive flatulence in the office. The Huffington Post has the details:

Richard Clem started working at Case Pork Roll in 2004 as a comptroller and believes he did a good job…. At the time of his hire, Clem weighed about 420 pounds, but underwent gastric bypass surgery in October 2010, to get rid of his own porky belly…. He’s also suffered some embarrassing side effects, including “extreme gas and uncontrollable diarrhea.” In 2013, Clem’s symptoms worsened, which caused “significant disruption in the workplace,” according to the suit.

Louann Clem, who began her job at Case Pork Roll in 2008, said company president Thomas Dolan repeatedly griped about her husband’s gassy problem. The suit alleges Dolan made Richard Clem work at home and said things like, “We cannot run an office and have visitors with the odor in the office,” and “Tell Rich we are having complaints from people who have problems with the odors.” Richard Clem was fired from Case Pork Roll on February 28, 2014,  Louann Clem quit the same day “because of the harassment and discrimination her husband faced as a result of his disability and the resulting symptoms.”

The lawsuit, brought by the wife, not by the employee, claims that she was discriminated against because of her association with an employee with a disability. The claimed disability? Obesity. (You can download a PDF of the lawsuit here).

I’m not sure what the company could have done differently to accommodate this employee and his issue. An employee has to be able to work without offending co-workers and customers. It appears that the company offered (or required, depending on your perspective) tele-work as an accommodation. The extreme flatulence is one thing, but when you factor in “uncontrollable diarrhea,” what else was this employer supposed to do?


Announcing the launch of the Ohio OSHA Law blog

It’s with tremendous pride that I announce the launch of the Ohio OSHA Law blog. It is the second labor and employment blog published by Meyers, Roman, Friedberg & Lewis.

I like to think of myself as a blogging evangelist, and I am beyond pleased that my colleagues have picked up my blogging challenge.

For an agency as potentially devastating as OSHA can be for employers, OSHA often flies under the radar. Yet, all it takes is the complaint of one disgruntled employee, or one unpreventable injury, to bring an OSHA investigator your door. And, once they arrive, you can sure they won’t leave without telling you have to open your checkbook. The results of an investigation can be financially devastating. Click over to OSHA website for a snapshot of how high a citation can reach.

You need to educate yourself about OSHA, and bring your business into compliance before OSHA shows up at your door. So, do your business (and me) a favor and head over to OhioOSHAlaw.com for all of your workplace safety updates.


WIRTW #384 (the “survey” edition)

Have you taken my survey on FMLA intermittent leave and salaried exempt employees? If not, click here, and answer two short questions. Let’s see if this is a problem in need of a solution, or a non-issue.

Here’s the rest of what I read this week:


Social Media & Workplace Technology

HR & Employee Relations

Wage & Hour

Labor Relations



Should you deduct from an exempt employee’s salary for intermittent FMLA? [survey]

Suppose you have a salaried, exempt employee. You pay that employee a fixed weekly salary, regardless of the number of hours he or she works. Some weeks the employee works 40 hours, some weeks the employee works 30 hours, and some weeks the employee works 60 hours. In the calculus of a weekly paycheck, the number of hours worked is irrelevant. A salary covers all hours worked in a week, whether it’s one hour or 100 hours.

Let’s further suppose this salaried, exempt employee submits a request, and is approved for, intermittent leave under the FMLA. It could be for the employee’s own serious health condition, or that of a family member. As a result, this salaried exempt employee starts taking an hour or two off per week for doctor’s appointments related to the serious health condition. Is that FMLA time-off paid or unpaid, for the salaried, exempt employee?

FMLA is unpaid leave, and the law’s regulations make a specific allowance for an employer to require that a salaried, exempt employee take any intermittent FMLA leave as unpaid leave.

Leave taken under FMLA may be unpaid. If an employee is otherwise exempt from minimum wage and overtime requirements of the Fair Labor Standards Act (FLSA) as a salaried executive, administrative, professional, or computer employee…, providing unpaid FMLA-qualifying leave to such an employee will not cause the employee to lose the FLSA exemption…. This means that under regulations currently in effect, where an employee meets the specified duties test, is paid on a salary basis, and is paid a salary of at least the amount specified in the regulations, the employer may make deductions from the employee's salary for any hours taken as intermittent or reduced FMLA leave within a workweek, without affecting the exempt status of the employee.

So, what is an employer to do? (1) what the law allows, and dock the salaried, exempt employee for any time spent taking intermittent FMLA leave? Or, (2) more than the law allows and pay the employee his or her full weekly salary?

I strongly favor option number 2.

Exempt employees do not work set schedules. They are not 9 – 5 jobs. Exempt employees work to get the job done (and, if they are not, you have problems bigger than whether to deduct an hour or two of pay for a doctor’s appointment). Because exempt employees work to get the job done, it is extraordinarily short-sighted (and, frankly, chintzy) to dock their pay for intermittent FMLA leave. What message does that send? We expect that some weeks, you will work your butt off, well in excess of 40 hours, because your job requires that you put in the extra time. That extra time will include some nights, and even some weekends. Because you’re exempt, we don’t pay you overtime for those extra hours; it’s all covered by your “salary”. Yet, when you need a few hours away from work for physical therapy for your knee injury, or to take you ill parent to a doctor’s appointment, we are going to hold back from your salary the pro rata share of those hours. How are your employees going to feel about working all of those extra hours when you nickel-and-dime them like this?

Employers, do me a favor and treat your salaried employees like salaried employees. Pay them their salary, period, regardless of how many hours they work in a week. If they are otherwise not meeting your performance expectations, treat it like a performance problem, not a payroll problem.

Now, I want to hear from you. Does your company dock the salary of exempt employees who take intermittent FMLA leave, and should it be? Answer below, or at this link. I’ll publish the results in the coming weeks.


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