Reasonable Accommodation

New York’s Healthcare Vaccine Mandate Comes Under Fire . . . Again

January 17, 2023

By Adam P. Mastroleo and Hannah K. Redmond

In August 2021, the New York State Department of Health (NYSDOH) implemented an emergency regulation – 10 N.Y.C.R.R. § 2.61 (the Regulation) – requiring covered healthcare entities to ensure that their “personnel” are “fully vaccinated” against COVID-19. The NYSDOH Commissioner permanently adopted the regulation in June 2022. Commonly referred to as a COVID-19 vaccine mandate for healthcare workers, the Regulation has been the subject of several legal challenges in both state and federal courts.

Read More >> New York’s Healthcare Vaccine Mandate Comes Under Fire . . . Again

New York Expands Retaliatory Workplace Safeguards for Protected Leave

December 6, 2022

By Stephanie H. Fedorka and Jackson K. Somes

On Nov. 21, 2022 New York Governor Kathy Hochul signed a Bill A8092-B/S1958 into law that expands retaliatory workplace protections for employees. The newly signed law amends New York Labor Law (NYLL) Section 215 to prohibit an employer from punishing or disciplining an employee who takes time off work for a “lawful absence” protected by federal, state or local law.

Read More >> New York Expands Retaliatory Workplace Safeguards for Protected Leave

New Guidance from U.S. DOL on FMLA Leave for Mental Health Conditions

June 6, 2022

In connection with Mental Health Awareness Month, the United States Department of Labor (USDOL) has sought to assist employers in better understanding how to comply with the Family Medical Leave Act (FMLA) as it relates to mental health conditions. Accordingly, on May 25, 2022, the USDOL issued new guidance (Guidance) and frequently asked questions (FAQs) on providing FMLA leave to employees to address their own mental health conditions or to care for a covered family member with a mental health condition.

Read More >> New Guidance from U.S. DOL on FMLA Leave for Mental Health Conditions

Updated Guidance on Religious Accommodations to COVID-19 Vaccine Mandates

March 11, 2022

By Brittany R. Frank

On March 1, 2022, the EEOC updated its guidance on religious accommodations to COVID-19 vaccine mandates. While the guidance states that job applicants and employees have a right to request a religious accommodation from an employer’s COVID-19 vaccination requirement under Title VII, the new guidance answers many questions specific to COVID-19 vaccination requirements and specifically addresses how employers should evaluate an employee’s religious objection to the vaccine.

Read More >> Updated Guidance on Religious Accommodations to COVID-19 Vaccine Mandates

Must an Employer Offer a Reasonable Accommodation if a Federal Safety Regulation Prohibits Such Accommodation? 

July 7, 2021

By Richard S. Finkel

In a decision of interest to New York State employers subject to federal safety regulations, the Second Circuit Court of Appeals recently answered that question in the negative. In Bey v. City of New York1, the Court concluded that where a federal safety regulation expressly prohibits a requested medical accommodation, that regulation trumps the requirements imposed by the Americans with Disabilities Act (the ADA) and Title VII and shields the employer from liability under those statutes. 

Read More >> Must an Employer Offer a Reasonable Accommodation if a Federal Safety Regulation Prohibits Such Accommodation? 

EEOC Issues COVID-19 Vaccination Guidance

December 18, 2020

By Nicholas P. Jacobson and Nolan Kokkoris

On Wednesday, December 16, the Equal Employment Opportunity Commission (EEOC) released new guidance (the Guidance) for employers regarding COVID-19 vaccinations. While the Guidance offers some insight for employers who are considering offering vaccinations to employees or requiring that employees get the COVID-19 vaccination, a number of questions still remain unanswered. The following are some key takeaways from the Guidance.

Read More >> EEOC Issues COVID-19 Vaccination Guidance

New York Increases Employment Protections for Victims of Domestic Violence

September 4, 2019

By Nicholas P. Jacobson

On August 20, 2019, Governor Andrew Cuomo signed an amendment to the New York Human Rights Law which grants additional employment protections to victims of domestic violence, similar to those already provided by the New York City Human Rights Law.  Beginning on November 18, 2019, employers in New York State will be required to provide certain reasonable accommodations to employees who are victims of domestic violence or parents of children who are victims of domestic violence.

Read More >> New York Increases Employment Protections for Victims of Domestic Violence

“Brute Reason” or Lack of Nuance: Seventh Circuit’s Twin Holdings That a Long Term Leave is Not a Reasonable Accommodation May Not Be a Panacea in Other Jurisdictions

November 29, 2017

By Howard M. Miller

In one of his more pithy lines, Oscar Wilde wrote, “I can stand brute force, but brute reason is quite unbearable.  There is something unfair about its use.  It is hitting below the intellect.”  Oscar Wilde, The Picture of Dorian Gray.

For employers dancing on the head of the ADA’s pin of reasonable accommodations, the Seventh Circuit’s two decisions holding that a multi-month leave of absence is not a reasonable accommodation under the Americans with Disabilities Act is like a tropical breeze in the dead of winter.  The brute reason of the opinions is compelling, but will other circuits find the per se rules established in them simply too rigid?

In the first case, Severson v. Heartland Woodcraft, Inc., the employer granted an employee with a chronic back condition 12 weeks of leave under the Family and Medical Leave Act.  Two weeks before the leave expired the employee informed the employer, Heartland, that he needed surgery on the date his leave was set to expire with a recovery period of at least two months.  Heartland notified the employee that his employment would be terminated at the end of his FMLA leave, but that he could reapply for a position when he was medically cleared.  The employee sued and the Equal Employment Opportunity Commission submitted an amicus brief on his behalf.  The Seventh Circuit directly addressed and expressly rejected the EEOC’s position that a long term leave of absence can and should be considered a reasonable accommodation.  In so ruling, the Court erected a monument to brute reason:

Perhaps the more salient point is that on the EEOC’s interpretation, the length of the leave does not matter.  If, as the EEOC argues, employees are entitled to extended time off as a reasonable accommodation, the ADA is transformed into a medical-leave statute — in effect, an open-ended extension of the FMLA.  That’s an untenable interpretation of the term ‘reasonable accommodation.’

Just a few weeks later, the Seventh Circuit, in Golden v. Indianapolis Housing Agency, addressed the issue again, this time on particularly heartbreaking facts.  The plaintiff had taken 16 weeks of leave due to ongoing treatment, including a mastectomy, for breast cancer.  Despite the fact pattern that seemed to be undeniably sympathetic to the plaintiff, the Court followed its prior decision in Severson, holding:

While we sympathize with Golden’s plight, clear circuit precedent controls this case.  Under Severson . . . an employee who requires a multi-month period of medical leave is not a qualified individual under the ADA or the Rehabilitation Act.

There was, however, a concurrence with the Court’s own brute reason.  Judge Rovner concurred that the Court was bound by Severson, but argued:

The ADA, by its terms, is meant to be flexible and to require individualized assessments of both the reasonableness of an employee’s requested accommodation and the burden on employers.  Holding that a long term medical leave can never be part of a reasonable accommodation does not reflect the flexible and individual nature of the protections granted employees under the Act.

Employers outside of the Seventh Circuit’s jurisdiction would be wise to pay careful attention to the concurrence in Golden and consider whether the views expressed by Judge Rovner may win the day in other circuits.  Right now, the Severson/Golden majority decisions are only binding in the Seventh Circuit, and have no applicability to local disability statutes such as the New York City Human Rights Law which permits open-ended long term leaves as reasonable accommodations.  In New York, employers must still engage in the interactive process with employees who request leaves beyond the FMLA period.  Going through that process and being able to articulate an undue hardship that may result from granting a multi-month leave is still the law and best practice in New York.