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Memo Research Notes : Kirk Haganman (Issue #1: The Essential Functions…

- - - - handicapped person
        
        "american"
        
        42 USC § 12101
        
        § 12111 Definitions
        
        Sub chapter 3, §12182 1(a), 2(a)ii, iii.
        
        This might only apply to public accommodations, hospital is a private entity
        
        §12113 Defenses
        
        Notes on decision
        
        White v. Orange Auto Center
        
        2 more items...
        
        Context and analysis
        
        Americans w/ Disabilities Act
        
        1 more item...
  - - - Title 29: Labor
        
        Boolean: "disability /s employment"
        
        29 C.F.R. § 2205.130
        § 2205.130 General prohibitions against discrimination.
        
        "Americans #with disabilities act" & no not refus! fail! /5 hir! /p reason! accomodations
        
        29 C.F.R. Pt. 1630, App. INTERPRETIVE GUIDANCE ON TITLE I OF THE AMERICANS WITH DISABILITIES ACT
  - - - Labor and Employment
        
        "Americans #with disabilities act" & no not refus! fail! /5 hir! /p reason! accomodations
        
        142 A.L.R. Fed. 311 (Originally published in 1997)
        American Law Reports
        ALR Federal
        The ALR databases are made current by the weekly addition of relevant new cases.
        Thomas J. Kapusta, J.D., L.L.M.
        When Does Job Restructuring Constitute Reasonable Accommodation Of Qualified Disabled Employee Or Applicant?
        
        § 6[a] Change of responsibilities of position or work environment—Reasonable accommodation required — Held to have been made
        
        Under the ADA, an employer is not required to accommodate an employee by exempting her from having to discharge an essential job function. Americans with Disabilities Act of 1990, § 102(a), 42 U.S.C.A. § 12112(a). Lang v. Wal-Mart Stores East, L.P., 813 F.3d 447 (1st Cir. 2016).
        
        813 F.3d 447
        United States Court of Appeals,
        First Circuit.
        Nicole LANG, Plaintiff, Appellant,
        v.
        WAL–MART STORES EAST, L.P., Defendant, Appellee.
        No. 15–1543.
        March 2, 2016.
        Hold: employee could not perform the essential functions of her unloader job, either with or without reasonable accommodations, as required to support ADA claim based on failure to provide reasonable accommodations,
    - - AMJ 2d.
        
        "Americans #with disabilities act" & no not refus! fail! /5 hir! /p reason! accomodations
        
        45A Am. Jur. 2d Job Discrimination § 306: Qualification standards avoiding direct threat to health or safety ???
        
        A direct threat is a significant risk to the health or safety of others that cannot be eliminated3 or reduced4 by reasonable accommodation. If no accommodation exists which would either reduce or eliminate the risk, the employer may refuse to hire an applicant or may discharge an employee who poses a direct threat.5
        
        8 F.Supp.3d 1322
        United States District Court,
        N.D. Alabama,
        Southern Division.
        Ezeikiel NEVITT, Plaintiff,
        v.
        UNITED STATES STEEL CORP., Defendant.
        even if employer's perception that applicant suffered from an impairment that was not transitory and minor was irrelevant and applicant's actual impairment was transitory, genuine issue of material fact as to whether applicant's actual impairment was “minor” precluded summary judgment based on applicant's failure to establish prima facie case that employer regarded him as disabled
        
        Factors to be considered in determining whether an individual would pose a direct threat include:8
        (1) the duration of the risk;
        (2) the nature and severity of the potential harm;
        (3) the likelihood that the potential harm will occur; and
        (4) the imminence of the potential harm.
        
        Index
        
        table of contents
        
        command+ f ADA
        
        Nothing
- - - - § 825.123 Unable to perform the functions of the position.
        n employer has the option, in requiring certification from a health care provider, to provide a statement of the essential functions of the employee's position for the health care provider to review. A sufficient medical certification must specify what functions of the employee's position the employee is unable to perform so that the employer can then determine whether the employee is unable to perform one or more essential functions of the employee's position. For purposes of FMLA, the essential functions of the employee's position are to be determined with reference to the position the employee held at the time notice is given or leave commenced, whichever is earlier.
  - - - Fjellestad v. Pizza Hut 188 F.3d 944 1) fact issue existed as to whether employee was substantially limited in the major life activity of working; (2) requiring employer to create restaurant co-manager position was not reasonable accommodation; (3) fact issue existed as to whether employer could have reassigned employee to shift manager position; (4) fact issue existed as to whether employer failed to participate in interactive process; and (5) alleged fact that employee was not completely unable to perform any job did not preclude finding that she was substantially limited in her ability to work.
        
        78 key 1540 : Discrimination by reason of handicap, disability, or illness
        
        :
        
        Citing Reference
        
        Knutson v. Schwan's Home Service Inc. 711 F.3d 911
        United States Court of Appeals,
        Eighth Circuit.
        Employee with monocular vision brought action against frozen foods company, alleging disability discrimination in violation of Americans with Disabilities Act (ADA) and Minnesota Human Rights Act (MHRA). Employer moved for summary judgment. The United States District Court for the District of Minnesota, David S. Doty, J., 870 F.Supp.2d 685, granted motion. Employee appealed.
        Holding: Department of Transportation (DOT) qualification to drive delivery truck was essential function of employee's position; (Find case that applies to medical field?)
        
        Table of Authorities
        
        Burchett v. Target; 340 F.3d. 510 US Court of Appeals, 8th Circuit Employee brought action against employer, alleging disability discrimination in violation of the Americans with Disabilities Act (ADA) and the Minnesota Human Rights Act (MHRA). The United States District Court for the District of Minnesota, Paul A. Magnuson, J., 2002 WL 31398774, granted summary judgment in favor of employer. Employee appealed. The Court of Appeals, Murphy, Circuit Judge, held that: (1) employer's failure to transfer her to a different department as requested by employee did not constitute failure to provide reasonable accommodation, as would violate the ADA and the MHRA, and (2) employee failed to establish a causal connection between employer's refusal to transfer her and her alleged disability, as required to establish a prima facie claim under the ADA and the MHRA.
        
        1 more item...
  - - - Cleveland v. Policy Management Systems Corp. 119 S.Ct. 1597
        (1) claims for Social Security Disability Insurance (SSDI) benefits and for ADA damages did not inherently conflict, and (2) employee was entitled to an opportunity to explain discrepancy between her statement in pursuing SSDI benefits that she was totally disabled and her ADA claim that she could perform essential functions of her job. (wrong issue)
      - Chevron v. Echazabel 122 S.Ct. 2045
        Applicant for employment at oil refinery brought state court action against employer under Americans with Disabilities Act (ADA), and employer removed action to federal court. The United States District Court for the Central District of California, Lourdes G. Baird, J., entered summary judgment in favor of employer, and applicant appealed. The United States Court of Appeals for the Ninth Circuit, Reinhardt, Circuit Judge, 226 F.3d 1063, reversed in part, vacated in part, and remanded. Upon grant of certiorari, the Supreme Court, Justice Souter, held that Equal Employment Opportunity Commission (EEOC) regulation authorizing refusal to hire an individual because his performance on the job would endanger his own health owing to a disability did not exceed the scope of permissible rulemaking under the ADA.
    - - Phelps v. Optima Health; 251 F.3d 21
        United States Court of Appeals,
        First Circuit. Holding: (1) ability to lift 50 pounds remained an essential function of nurse's position, despite her having coworkers perform her lifting duties; (2) hospital did not have to allow nurse to engage in job-sharing as reasonable accommodation, despite having previously allowed her to do so; (3) ADA did not require hospital to reestablish position for nurse; and (4) hospital was not liable for alleged failure to engage in interactive process.
      - 8th Circuit Search Binding
        
        Alexander v. Northland Inn, 321 F.3d 723 US Court of Appeal 8th Circuit
        Former employee brought action against her former employer, alleging her termination as hotel housekeeping supervisor violated the Americans with Disabilities Act (ADA). The United States District Court for the District of Minnesota, Ann D. Montgomery, J., 2002 WL 236703,granted summary judgment in favor of employer, and employee appealed. The Court of Appeals, Loken, Circuit Judge, held that: (1) vacuuming was an essential function of employee's position, and (2) employee failed to show she could vacuum with or without reasonable accommodation.
        
        Minnihan v. Mediacom Communications Corp; 987 F.Supp.2d. 918
        USDC S.D. Iowa, Central Division Discharged employee of cable television and communications provider, who suffered from seizures, brought action in state court against his former employer alleging violations of Americans with Disabilities Amendment Act (ADAAA) and Iowa Civil Rights Act (ICRA). Employer removed action to federal court and moved for summary judgment.
        Holdings: The District Court, James E. Gritzner, Chief Judge, held that:
        1 employee was not qualified to perform essential functions of his position;
        2 employer's providing temporary accommodation was irrelevant to essential function question;
        3 employee's reassignment was not adverse action; and
        4 reassignment was reasonable accommodation
  - - - Who is "Qualified Individual" Under Americans With Disabilities Act Provisions Defining, and Extending Protection Against Employment Discrimination to Qualified Individual with Disability (42 U.S.C.A. §§ 12111(8), 12112(a))
      - 142 A.L.R. Fed. 311 When Does Job Restructuring Constitute Reasonable Accommodation Of Qualified Disabled Employee Or Applicant?
    - - 1 Fair Employment Practices § 2:200
        HR Series
        Fair Employment Practices
        January 2017 Update
        Part I. Federal EEO Requirements
        Chapter 2. Discrimination Prohibited by Federal EEO Laws
        XIV. Disability or Perceived Disability Discrimination under ADA
        F. Essential Job Functions Requirement
        § 2:200. Determining essential functions
      - Rothstein, Disabilities and the Law § 4:11 (4th ed.)
        Disabilities and the Law
        November 2016 Update
        Laura Rothstein
        Julia Irzyk
        Chapter 4. Employment
        § 4:11. Otherwise qualified—Fundamental and essential functions
      - 8 Emp. Coord. Employment Practices § 107:36;
        
        Fjellestad v. Pizza Hut of America, Inc. (reference below)
        
        Benson v. Northwest Airlines, Inc. (1) employee made prima facie showing that he was physically able to perform essential functions of mechanic's position, shifting burden to employer to prove that reasonable accommodation was not possible; (2) employee created genuine issue of fact as to whether airline had existing position available, precluding summary judgment for airline; and (3) employee's action was not preempted by Railway Labor Act.
    - - 50 Cath. U. L. Rev. 957 ABSENTEEISM AND THE ADA: THE LIMITS AND THE LOOPHOLES
        Megan G. Rosenberger
      - 42 USC §12111