ADA Violation Alleged in Employer’s Refusal to Permit Post-Surgical Employee to Use Crutches

Knee surgery is prevalent enough that an employer should expect to accommodate an employee who needs some assistance to keep working.

But apparently not in this case.

Employer Solutions Group., LLC (ESG), a payroll servicing company head­quartered in Eden Prairie, Minn., violated federal law by firing an employee because she needed crutches after surgery, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed Thursday.

According to the EEOC’s lawsuit, the employee, who worked as an account manager, needed to use crutches for a short time after she returned to work following her surgery for a torn anterior cruciate ligament (ACL), part of the knee joint. The EEOC charged that ESG discriminated against the employee based on her actual and perceived disability, and in retaliation for her request to work with crutches.

Firing an employee because of a real or perceived disability, or because the employee requested a reasonable accommodation, violates the Americans with Disabilities Act (ADA). The EEOC filed its lawsuit, EEOC v. Employer Solutions Group, LLC, Case No. 0:19-cv-02315, in U.S. District Court for the District of Minnesota after first attempting to reach a pre-litigation settlement through the EEOC’s conciliation process.

“The issue here was so minor,” said Julianne Bowman, district director of the Chicago district office. “This employee needed to use crutches for a short time after returning from short-term disability leave. The employer fired her for it, which was inappropriate, short-sighted and unlawful.”

Greg Gochanour, regional attorney for the Chicago district, added, “Employers must remember that even relatively short-termed impairments can be recognized as disabilities under the law if they are sufficiently severe, which they were here. The employer’s decision to fire its account manager because she needed crutches for a few weeks is just inexplicable as well as illegal.”

The EEOC’s Minneapolis Area Office is part of the agency’s Chicago District Office, which is responsible for investigating charges of employment discrimin­ation, admin­istrative enforcement and the conduct of agency litigation in Iowa, Illinois, Wisconsin, Minnesota, North Dakota, and South Dakota.

Cookie Dough Maker Hit With Big Safety Fine

Making cookie dough is more dangerous than we realized–for the workers, that is.

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has cited Choice Products USA LLC for continually exposing employees to machine safety hazards at the cookie dough manufacturing facility in Eau Claire, Wisconsin. The company faces $782,526 in penalties, and has been placed in the agency’s Severe Violator Enforcement Program.

OSHA cited Choice Products for five egregious willful violations for failing to implement and train employees on lockout/tagout procedures to prevent unintentional contact with machine operating parts during service and maintenance. Inspectors also determined that the company failed to install machine guarding, and comply with forklift regulations.

OSHA cited Choice Products for exposing employees to similar machine hazards following an October 2016 inspection.

“The company managers developed comprehensive lockout/tagout procedures following the 2016 inspection but failed to implement their own safety program,” said OSHA Acting Regional Administrator William Donovan. “Employers are required by law to provide workers with safe and healthful workplaces.”

“Worker safety should be an employer’s top priority every day they’re open for business,” OSHA Principal Deputy Assistant Secretary Loren Sweatt said. “Employers who do not comply with safety standards will continue to face the full enforcement of the law.”

OSHA offers compliance assistance resources on Safeguarding Equipment and Protecting Employees from Amputations and Control of Hazardous Energy – Lockout/Tagout.

The company has 15 business days from receipt of the citations and penalties to comply, request an informal conference with OSHA’s area director, or contest the findings before the independent Occupational Safety and Health Review Commission.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to help ensure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education, and assistance. For more information, visit https://www.osha.gov.

EEOC Recovers $100K for Struggling Deaf Employees at D.C. Wal-Mart in ADA Settlement

This store in the nation’s capital has some remediation to do to allow two deaf employees to do their jobs.

Wal-Mart Stores East, LP will pay $100,000 and furnish significant equitable relief to resolve a federal disability discrimination lawsuit filed by the U.S. Equal Employment Oppor­tunity Commission (EEOC), the federal agency announced Monday.

The EEOC charged that Wal-Mart Stores East, LP refused to provide communications accommodations, such as access to sign language interpreters and closed-captioned training videos, to two deaf employees who worked at Walmart Store No. 5941 in Northwest Washington, D.C. The employees were entitled to reasonable accommodations so they could obtain information from, and participate in, meetings, trainings and other workplace communications, the EEOC said.

The Americans with Disabilities Act (ADA) prohibits workplace discrimination based on an individual’s disability. The ADA requires employers to provide a reasonable accommodation to individuals with disabilities unless it would pose an undue hardship. The EEOC filed suit (EEOC v. Wal-Mart Stores East, LP, Civil Action No. 1:18-cv-2799) in U.S. District Court for the District of Columbia, after first attempting to reach a voluntary, pre-litigation settlement through its conciliation process.

In addition to paying $100,000 in monetary relief, the two-year consent decree resolving the suit enjoins Walmart Store No. 5941 from violating the ADA, including engaging in unlawful retaliation. Walmart Store No. 5941 has also agreed to revise its reasonable accommodations Management Guidelines, provide live training to management employees on the ADA’s reasonable accommodations requirements, and address issues related to deaf or hard-of-hearing persons, and provide training to all non-management employees on the ADA and the process for requesting a reasonable accommodation. Walmart Store No. 5941 will also post a notice about the settlement and report to the EEOC about its compliance with the consent decree.

“This settlement should encourage all employers to provide reasonable accommodations that allow equal access for deaf and hard-of-hearing employees and applicants to engage fully in the workplace,” said Acting Washington Field Office District Director Mindy Weinstein.

EEOC Regional Attorney Debra M. Lawrence added, “In addition to the monetary relief, the settlement provides important equitable relief to provide deaf and hard-of-hearing employees and appli­cants with effective accommodations so they can participate in workplace communications and have equal employment opportunities.”

The EEOC’s Washington Field Office has jurisdiction over the District of Columbia and the Virginia counties of Arlington, Clarke, Fairfax, Fauquier, Frederick, Loudoun, Prince William, Stafford and Warren; and the independent Virginia cities of Alexandria, Fairfax City, Falls Church, Manassas, Manassas Park and Winchester.

Blood Bank Pays $175,000, Redoes ADA Policy, in Settlement of Lawsuit Over Leave Requests

Even the medical professionals trip up when it comes to employee requests for leave for dealing with ailments.

Blood Bank of Hawaii, a non-profit blood collection company, will pay $175,000 to settle a disability discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced Tuesday.

According to the EEOC’s lawsuit, Blood Bank of Hawaii did not provide employees with disabilities leave beyond the required 12-weeks of leave under the Family and Medical Leave Act (FMLA) and required employees to return to work without limitation at the end of their medical leave. The company also fired employees who had either exhausted their medical leave or were unable to return to work without restrictions.

Such conduct violates the Americans with Disabilities Act (ADA) which prohibits employers from discriminating against employees with disabilities. The EEOC filed suit in the U.S. District Court of Hawaii (U.S. EEOC v. Blood Bank of Hawaii, Case No. 1:17-cv-00444-HG-WRP) after first attempting to reach a pre-litigation agreement through its voluntary conciliation process.

In addition to the $175,000, the Blood Bank of Hawaii agreed to put in place measures to prevent discrimination within the workplace. This includes retaining an EEO consultant, designating an in-house ADA coordinator, revising the current ADA policy and distributing it to all employees. The company also agreed to training and the development an internal log for all ADA accommodation requests. The court will maintain jurisdiction for the term of the two-year consent decree.

“We continue to see employers not properly engaging in the interactive process,” said Anna Park, regional attorney for the EEOC’s Los Angeles District, which includes Hawaii in its jurisdiction. “We commend Blood Bank of Hawaii for choosing to resolve this complaint and for putting in place measures that will benefit all employees in the workplace.”

Glory Gervacio Saure, director of the EEOC’s Honolulu Local Office, said, “This resolution will send a message throughout the state of Hawaii that employers need to be aware of their obligations under the ADA. We are pleased Blood Bank of Hawaii has taken steps to make meaningful changes to their policies.”

Addressing disability discrimination in the form of inflexible leave policies that discriminate against individuals with disabilities is one of six national priorities identified by the EEOC’s Strategic Enforcement Plan (SEP).

$200K Penalty for Safety Violations at NY Plant

Packaging the food we eat mustn’t come at the cost of employees’ safety in doing the job.

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) last Thursday cited Arbre Group Holding – doing business as Holli-Pac Inc. – for willful and serious violations of workplace safety and health standards at its Holley, New York, facility. The company, which packages frozen fruits and vegetables for retailers, faces a total of $200,791 in penalties.

OSHA inspectors determined that the company exposed employees to laceration and amputation hazards related to a package filler machine. Parts of the machine did not have doors to prevent employees from contacting operating parts. The access door on another part of the machine lacked an interlock mechanism to stop the machine’s operation when opening the door. OSHA also cited the company for inadequate lockout/tagout procedures and failing to train employees on hazardous chemicals in the workplace; obtain annual audiograms for employees exposed to excessive noise levels; ensure employees wore appropriate eye and face protection; and repair damaged parts on electrical equipment.

OSHA conducted the inspections under the Site-Specific Targeting Program, which directs enforcement resources to workplaces where the highest rate of injuries and illnesses have occurred.

“Employers that do not comply with the law will see full and fair enforcement,” said OSHA’s Buffalo Area Director Michael Scime. “Maintaining a safe workplace involves employers regularly conducting analyses to find and fix hazards, and training workers to recognize those hazards before they cause injury or illness.”

OSHA offers compliance assistance resources on occupational noise exposure, machine guarding, control of hazardous energy, and chemical hazard communication.

The company has 15 business days from receipt of the citations and penalties to comply, request an informal conference with OSHA’s area director, or contest the findings before the independent Occupational Safety and Health Review Commission.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to help ensure these conditions for American working men and women by setting and enforcing standards, and providing training, education, and assistance. For more information, visit https://www.osha.gov.

EEOC Recover $125K in Settlement for Woman Forced From Job After Disclosing Her Pregnancy

This employer learned the hard way that forbidding a pregnant employee to continue working has its costs.

The Day & Zimmermann Group, Inc. and Sunrise Beach Corporation, doing business as M2 Services Corporation, have agreed to pay $125,000 and furnish other relief to settle a pregnancy discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced today.

The EEOC charged in its lawsuit that Day & Zimmermann and M2 violated federal law by subjecting a pregnant employee to discrimination, forcing her to take an unpaid leave of absence upon learning that she was pregnant, and ultimately firing her because of her pregnancy.

According to the EEOC’s lawsuit, the M2 employee was an aircraft worker cleaner, responsible for cleaning aircraft parts. In January 2016, the employee advised M2 that she was pregnant. Almost immediately thereafter, M2 placed her on an involuntary and unpaid leave of absence, claiming that she needed to obtain medical authorization before returning to work. Even after her medical provider cleared her, M2 refused to allow her to return to work and, in February 2016, M2 fired her, the EEOC said.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964, which prohibits employers from discriminating based on sex. The Pregnancy Discrimination Act adds that Title VII includes, but is not limited to, discrimination based on pregnancy and related medical conditions.

In addition to the $125,000 in monetary relief, the three-year consent decree settling the lawsuit provides for extensive injunctive relief to help secure a workplace free from sex discrimination in all of its forms, and pregnancy discrimination in particular. This includes M2 creating and implementing a pregnancy non-discrimination policy and annual mandatory training for all managers and staff by a subject matter expert approved by the agency. Both the policy and training will address discrimination based on unreasonable notions, assumptions and/or stereotypes about pregnant women. M2 must also post a notice referencing this lawsuit and consent decree, advising employees of their rights. Addition­ally, M2 will provide a job reference for its former employee.

“This settlement reflects the EEOC’s ongoing commitment to protecting women against sex and pregnancy discrimination at work,” said Robert E. Weisberg, regional attorney for the EEOC’s Miami District, which includes Jacksonville within its jurisdiction. “Employment decisions based on paternal­istic notions or stereotypes about pregnancy will not be tolerated.”

Michael Farrell, director of the EEOC’s Miami District, said, “Pregnancy discrimination is simply unacceptable. The EEOC remains steadfast in its mission to eradicate it from the workplace.”

The EEOC’s litigation effort was led by Trial Attorney Robert L. Adler.

Software Co. Forks Over $80K to Settle ADA Suit Over Firing of Employee in Addiction Program

Firing an employee because he or she is seeking treatment for an opiate addiction is apt to backfire on the employer.

SoftPro, LLC, a Delaware software company headquartered in Raleigh, N.C., will pay $80,000 and provide other relief to settle a disability discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced Friday.

According to the EEOC’s lawsuit, Matthew Elliott worked for SoftPro in an IT position at the company’s Raleigh headquarters. Elliott, an individual with a record of opiate addiction, participated in physician-supervised medication-assisted treatment (MAT) for the addiction since 2009. In February 2017, Elliott took leave from SoftPro and voluntarily admitted himself to an inpatient treatment facility to elimin­ate the need for MAT. Elliott successfully completed the inpatient treatment and returned to work. Upon his return to work, Elliott was questioned by SoftPro about the purpose of his leave. Elliott disclosed his recent participation in a treatment program to eliminate his need for ongoing MAT. SoftPro fired Elliott on Feb. 27, 2017 because it perceived him as disabled, the EEOC said.

Such alleged conduct violates the Americans with Disabilities Act (ADA), which protects employees and applicants from discrimination based on their disabilities, including perceived dis­abilities and records of disabilities. The EEOC filed suit in the U.S. District Court for the Eastern District of North Carolina, Western Division (EEOC v. SoftPro, LLC, Civil Action No. 5:18-cv-00463) after first attempting to reach a pre-litigation settlement through its conciliation process. Thereafter, Elliott joined in the suit individually with his own counsel.

In addition to the $80,000 in damages, the three-year consent decree settling the lawsuit requires that SoftPro revise, implement and distribute personnel policies to state that the com­pany does not exclude employees based on their participation in a medication-assisted treatment program. The company must also provide annual training to its human resources team, managers, supervisors, and employees; post a notice to employees relating to the settlement; and report to the EEOC all negative employment actions the company takes against employees who have a record of substance abuse disorder or who are currently participating in, or have successfully completed, a drug rehabilitation program.

“Employees in recovery and actively participating in treatment should not fear losing their jobs,” said Lynette A. Barnes, regional attorney of the EEOC’s Charlotte District Office. “The EEOC will continue to litigate cases where people with disabilities are terminated based on fears and assumptions about the work they can perform.”