Disability, Medical Leave & Reasonable Accommodations


Imagine, an employee in your organization advises that they need to take leave pursuant to the Family and Medical Leave Act to recover from an upcoming surgical procedure. Your organization approves the leave and then you find out that while on leave and supposedly recovering from surgery, the employee goes on a family vacation to a far off beach resort. You are irate at what you perceive to be a blatant bait and switch and want to consider terminating the employee. Hopefully, you run all this by your General Counsel first because, depending on the circumstances, such termination could be deemed retaliatory and subject the company to a claim for substantial damages. Indeed, this is exactly what happened in DaPrato v. Massachusetts Water Resource Authority.

In that case, Richard A. DaPrato, who worked for the MWRA, was on FMLA leave recovering from foot surgery when he filed an application (signed by his surgeon) to extend his leave from March 20 to March 26. Shortly thereafter, DaPrato went on a family vacation to a Mexican beach resort. Approximately two weeks after returning from Mexico, the MWRA learned DaPrato had gone on vacation, reasoned that DaPrato had lied about his medical … Keep reading


The Americans With Disabilities Act prohibits discrimination “on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” Over the past few years, innumerable lawsuits have been brought against universities, banks, and businesses, claiming that they have engaged in unlawful discrimination under the ADA because their websites (1) act as “places of public accommodation,” and (2) are not fully accessible to people with visual impairments. (Often, these lawsuits concern the fact that, although a visually impaired person can use a “screen-reader” to convert text on a website into audio, if there is no subtitle to a non-text picture or image, that user would have no way of knowing that a picture or image exists, let alone what it might be.)

While there have been cases holding that websites are not places of public accommodation, the trend seems to be otherwise. Some jurisdictions hold that a website may be a place of public accommodation if there is a connection between the site and a physical location. See, … Keep reading


When Massachusetts voters legalized the use of marijuana for medicinal purposes four years ago, the impact on most employers was limited to clarifying that “legal” marijuana use was still generally prohibited in the workplace. Now, Massachusetts has legalized limited use of recreational marijuana. Although the recreational marijuana use law also provides that employers may prohibit employees from reporting to work or performing work under the influence of marijuana, the new law is raising practical challenges for employers. Here are three ways that employers may consider changing what they have been doing:

1. Pre-employment Drug Testing

Many employers require job candidates to successfully pass a drug test as a condition to receiving a job offer. Prior to the legalization of marijuana, a positive test for marijuana use by a job candidate was an indication of illegal drug use and clear grounds for rescinding an offer of employment. Since legalization of medical and recreational use, from a legal standpoint, rescinding a job offer based on testing positive for marijuana use is still generally permitted. From a practical standpoint, however, the rationale that marijuana use is illegal no longer exists and brings into question the rationale for drug testing for marijuana at … Keep reading

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Earlier this week, the U.S. Supreme Court declared that a new test applies for pregnancy discrimination. In Young v. UPS, the Supremes decided that in pregnancy discrimination actions under the federal Pregnancy Discrimination Act (“PDA”), the long-standing McDonnell-Douglas burden shifting test does not apply. Employers should ensure their policies, especially any light duty policies, comply with the Young decision.… Keep reading

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For years, the Massachusetts Maternity Leave Act (“MMLA”), M.G.L. c. 149, §105D, only applied to female employees by its literal terms. The Massachusetts Commission Against Discrimination (“MCAD”), the agency tasked with enforcing the MMLA, has taken the position that if the MMLA was applied literally, it would be unconstitutional, as it would give female employees greater employment rights than men. Although initially intended to protect women who were giving birth to children, since the MMLA also protects women who adopt children, it is not about the physical “disability” associated with giving birth to a child.  Thus, the argument goes, men should also be covered by its protections.  The conflict between the literal terms of the MMLA and the MCAD’s guidelines for interpreting the MMLA created difficulty for employers who were not subject to the Family and Medical Leave Act (which entitles eligible employees, regardless of gender, to up to 12 weeks of unpaid leave for the birth or adoption of a child).

On his last day in office, Governor Deval Patrick settled the matter once and for all, by signing into law a bill that expressly expands the protections of the MMLA to all employees, regardless of gender.… Keep reading

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Because ’tis the season to give, The In-House Advisor would like to give in-house counsel the following reminders so as to limit their companies’ holiday exposure:

Tip 1:  Religious discrimination and accommodations

As we all know, while the “holiday” season in December often refers to Christmas, there are many other religious holidays celebrated by workers, both now and throughout the year.  In-house counsel may wish to take the opportunity now to advise their companies’ managers to allow, and not interfere with, an employee’s observance of religious obligations.  For purposes of employment discrimination laws, the definition of “religion” is much broader than one might think and is not limited to major, organized religions.  Rather, “religious beliefs” protected by discrimination laws is defined as:

Moral or ethical beliefs about right and wrong that are sincerely held with the strength of traditional religious views.

It would behoove employers to carefully consider scheduling of work on holidays and planning and scheduling of holiday celebrations with an eye towards religious considerations. Likewise, being mindful of the religions practiced by company employees may avoid issues with respect to holiday parties.  For instance, depending upon the make-up of your workforce, scheduling a party for Friday night … Keep reading

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Employees not at work


Although there are many occasions when an employer may lawfully terminate a non-performing or absent employee, if the reason for the non-performance or absence is based on a physical or mental condition – or a perceived physical or mental condition – employers are well-served to carefully scrutinize the facts before deciding to terminate an employee.  Here are a few examples of where further scrutiny is well worth the effort:

 Employees not at work1.  Where the basis for termination comes only from a single source.

Assume, for example, that a line manager recommends the termination of an employee because she is “unreliable.” In reality, and unbeknownst to the employer, the line manager actually wants the employee fired because he feels inconvenienced by having to cover her authorized, intermittent leave hours.  If the employer takes the line manager’s word that the employee is simply “unreliable” and terminates the employee taking intermittent leave, the employer will potentially be liable for disability discrimination or a violation of the Family and Medical Leave Act.  Thus, when the basis for making an employment termination decision comes only from one person, in-house counsel should advise the company to do whatever it can to verify the facts through one … Keep reading

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Employers Still Required to Provide Unpaid and Work-Free Maternity Leaves


Yahoo!, Twitter, Facebook and every possible media outlet have been aflutter with praise and criticism since newly appointed Yahoo! CEO Marissa Mayer announced to Fortune magazine that she is pregnant and taking a “few weeks” of maternity leave and will be “working throughout it”.  Though this may be heartening for Yahoo! investors, the typical employer is reminded that its employees are not Mayer and are not likely to follow in her footsteps.  Rather, employers must remember that there are federal and state laws that require employers to provide protected leave for many of their employees.  Here are five important reminders:

Reminder #1:  “Leaves” require a return to work.

The term “leave” is a bit misleading, as the key is “protected” leave, which is the right to take a leave of absence and  return to his or her job.  Protected leave also means that during the leave, no work is to be done or requested of the employee.

Reminder #2:  Leaves may be doubled or tripled for multiple births. 

In Massachusetts, a full-time, female employee who has worked at least three (3) consecutive months as a full-time employee or has completed the “initial probationary period set by … Keep reading

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Providing Temporary Accommodations for Employee Disability


It’s never easy to navigate the legal requirements when an employee has a medical condition or  disability.  One of the many complications is providing a “reasonable accommodation,” a process that often requires significant time and careful consideration of how and what medical information can be obtained and scrutinized. 

In providing accommodations, some employers hesitate to relieve employees from certain “essential job functions” temporarily while the employee is recovering from a medical condition, or while it’s unclear how long a condition will last.  Based on the First Circuit’s decision in Jones v. Walgreens, Inc., et al., however, relieving an employee temporarily from certain “essential job functions” does not require the employer to permanently eliminate those essential job functions from the employee’s job.

In Jones, plaintiff-employee Jones, a Walgreens store manager, had been on several leaves of absence from January 2004 to October 2005 after suffering a knee injury when she slipped on ice outside Walgreens’ office.  In her second leave of absence, Jones indicated that she hoped to return to work with “reasonable accommodations.”  Walgreens welcomed her back to work with some physical lifting, bending, squatting and twisting limitations.  Twenty-two months later, in October 2005, Walgreens offered her … Keep reading

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