Job Reassignment As A Reasonable Accommodation Under Disability Discrimination Law

The Americans with Disabilities Act prohibits employment discrimination because of an actual or perceived disability.  One of the ADA’s requirements mandates that employers  reasonably accommodate individuals with
disabilities.  A reasonable accommodation is not required if if would  unless cause the employer undue hardship.  One type of reasonable accommodation is job reassignment to a vacant position.

As with any accommodation request under the ADA, employees requesting reassignment must initially establish that they are an “individual with a disability” as that term is defined by federal law.  Then, if a disability is established, job reassignment must be a reasonable accommodation.  It not always is.   Job reassignment is a necessary disability accommodation only if the employer has available a vacant equivalent position for which the disabled employee is qualified.  The employee seeking reassignment must have the requisite skill, experience, education, meet other job-related requirements of the position, and be able to perform the essential
functions of the new position with or without reasonable accommodation.

There are other limits to job reassignment as a disability accommodation.  Employers do not need to move employees out of existing positions to accommodate a disability.  Nor do they need to create a new job for disabled employees seeking reassignment.  Further, the proposed reassignment need only be roughly equivalent to the employee’s current position in terms of pay, status, benefits, or location.  The ADA doesn’t mandate that employers give disabled employees a higher-level position than the one they currently hold.

Disability discrimination cases require legal analysis of federal statutes, U.S. Department of Labor regulations, and court decisions.  I can help you with any employment law or labor law questions that you might have.  Please feel free to contact me for a free initial consultation about employment law or labor law.

The Iowa Court Of Appeals Reminds You To Prove Causation

There’s a question that sometimes seems to be overlooked in civil cases — How did the defendant’s supposed wrongdoing harm you?  You have to prove not only that the defendant violated some aspect of the law, but also that the defendant’s violation caused you injuries and damages.  That’s generally referred to as “causation.”  The standards for causation vary from one type of claim to another, but the basic principle is always that you must prove you were harmed by the defendant’s conduct or you have no claim.  The principle applies to a personal injury suit, products liability claim, motor vehicle accident claim, motorcycle accident claim, dog bite claim, employment or labor law claim, construction defect claim, business practices or contract law claim, debt collection practices law claim, nuisance law claim, or insurance law claim.

This is not an issue to be taken lightly.  Money damages do not automatically flow from a determination that a defendant violated the law.  If Point A is the defendant’s liability and Point C is your injuries and damages, you need to have a good argument for Point B, which is causation, or the connection between the defendant’s liability and your injuries and damages.

The Iowa Court of Appeals’s recent decision in Stutzman v. West Des Moines OB/GYN illustrates this concept in tragic fashion.  Stutzman was a wrongful death case involving Julie Stutzman’s death from cancer.  Her estate and surviving family claimed that her doctor committed malpractice in the manner in which the doctor handled some of Julie’s earlier doctor visits.  The plaintiffs argued that, had Julie’s doctor properly handled and responded to earlier communications from Julie, Julie’s cancer would have been detected sooner and she would have had a higher chance of survival.

The Stutzman plaintiffs lost because they could only prove one aspect of malpractice against Julie’s doctor and clinic — A charting error.  But they were unable to establish that the charting error made a difference in the course of Julie’s subsequent cancer diagnosis and death, i.e., causation.  So Stutzman is a recent, good example of the importance of having sufficient proof of causation to connect the defendant’s wrongdoing to your harm.  Even though Julie’s family proved that her doctor did something wrong, they could mot prove that the doctor’s error harmed Julie, and they lost their case.

The Impact Of Your Social Media Use On Your Legal Rights

Your social media posts are not private.  Nor is there any law that prevents a lawsuit opponent from using against you something you posted on Facebook, Twitter, Instagram, or any of countless internet websites and blogs.  If you’re involved in a personal injury suit, products liability claim, motor vehicle accident claim, motorcycle accident claim, dog bite claim, employment or labor law claim, construction defect claim, business practices or contract law claim, debt collection practices law claim, nuisance law claim or insurance law claim, that information could compromise your case.

It is routine for opposing counsel in all types of cases to request this information as part of their pretrial investigation.  They want to know if you’ve posted anything anywhere online that contradicts any part of your claim.  They also want to know if there are any photos or videos of you doing things that you shouldn’t be doing or claim that you can’t do.

Judges increasingly allow opposing counsel access to this information, even if you’ve marked it as private in your online profile or settings.  To judges, your online musings, pictures, and video are as much fair game in a lawsuit as would be a diary, journal, scrapbook with photos, etc.  So odds are good opposing counsel will get this information whether you like it or not.

And that only covers opposing counsel’s attempts to come in through the front door.  As long as opposing counsel doesn’t communicate directly with you, they’re also free to view anything that you’ve left publicly available.  So opposing counsel may be poking around your internet persona and you won’t even know it until it’s too late.

The moral of the story is to avoid putting anything online that your common sense tells you will be used against you by opposing counsel.  Chances are good counsel will eventually get that information somehow.  And they’re guaranteed to try to use it.

The Importance Of A Prompt Investigation In Accident Cases

In an earlier post I discussed various things that you should do if your involved in an accident.  People also often forget about the importance of an immediate investigation in motorcycle crash and motor vehicle accident cases.  A good investigation can help with proving both liability and responsibility for injuries or death after a crash.  Don’t assume that responding law enforcement will complete more than the basic accident investigation report or will get all of the information that a lawyer will need in the future when trying to prove your case.

Try to get the name, address, and telephone number of every possible witness in the area.  If you’re too injured to do that, ask someone (if you can) to try to help you with that.  You need witnesses to testify about the crash and support your liability and injury claims.  For a common fender-bender, the responding officer will likely only get information from people who happen to be standing around the scene when the officer arrives but will miss those who have already left.  If someone doesn’t get the witnesses’ names and contact information, they’ll never be found.

Photograph, or ask someone to photograph, the vehicles and the entire accident scene.  Try to think of everything that might be important about the scene — Road conditions, visibility, skid marks, obstructions to view, construction markers, traffic control signals, and lane markings are common examples of things that may later be important in your case but might only be temporary and not available for photographing later.

These things need to be done immediately after an accident while everyone is still at the scene and while accurate photographs are still possible.  Don’t expect that witnesses will magically be found or the scene can be magically recreated later for your lawyer.  Photographs can be especially important if liability is later disputed in your case.  If the other driver claims that a snowy or icy road prevented the driver’s vehicle from stopping, but you have a photograph taken at the scene that shows a clear and dry road, who do you think wins that argument?

Investigation into an accident should begin right away.  Whether the accident involves motor vehicles, defective products or dangerous conditions on property, evidence must be examined and preserved before it is lost or changed.  Photos showing conditions at the time of the accident should be taken before changes are made, and witnesses should be interviewed before memories are lost.  Remember, the insurance company will have an adjuster or investigator on the case immediately.  You should have someone on your side as well. – See more at: http://www.currieliabolaw.com/blog/why-is-it-important-to-investigate-an-accident-right-away/#sthash.KAPvxEci.dpuf

Can You Refuse An Employee Drug/Alcohol Test?

As discussed in other posts here and here, Iowa Code 730.5 allows private employers to conduct workplace drug and and alcohol testing on current and prospective employees.   Iowa Code 730.5 gives employers the power to demand drug and alcohol testing and issue discipline, including termination, against employees who refuse to submit to testing.  This employment law raises a few questions.  First, can you ever legitimately refuse a drug test, such that your employer cannot discipline you for doing so?  Second, what exactly is a “refusal” under Iowa’s drug and alcohol testing law?

The only way that an employee can safely refuse a drug or alcohol test is if the test is not lawful or valid, meaning that the employer has no right to demand the test.  For example, I’ve noted that many employers are improperly insisting on post-injury testing under circumstances in which Iowa Code 730.5 doesn’t authorize such a test.   That’s an example of a situation in which, because the requested test is illegal, the employee can legally refuse the test without disciplinary repercussions.  But except for situations involving an illegal test request, employees generally don’t have a right to refuse testing and expose themselves to discipline if they do.

Determining whether there’s a “refusal” is a bit trickier.  Obviously, directly refusing the test, walking out on the test, or not showing up for the test are clear testing refusals.  There’s a gray area though between such overt refusals and lesser forms of possible refusal.  Neither Iowa Code 730.5 nor Iowa’s appellate courts have addressed the issue of whether anything less than a categorical refusal can constitute a refusal to submit to an employee drug or alcohol test.

I’m currently litigating a case involving a less-than-obvious refusal.  My position is that an “implied refusal” cannot be determined by arbitrary time limits or the like.  Instead, a court has to look at the employee’s actions regarding the test and all of the surrounding circumstances to determine whether the employee has implicitly refused a drug or alcohol test.  This will likely be a question that is later answered by the Iowa Court of Appeals or the Iowa Supreme Court.

Schneider Electric Recalls APC Surge Protectors Due to Fire Hazard

The U.S. Consumer Product Safety Commission has announced a voluntary recall of the following consumer product because the product could cause personal injuries or death due to product liability. Consumers should stop using recalled products immediately unless otherwise instructed.

Name of product:

APC SurgeArrest surge protectors

Hazard:

The surge protectors can overheat, smoke and melt, posing a fire hazard.

Consumer Contact:

Schneider Electric IT Corp., toll-free at (888) 437-4007 from 8 a.m. to 5 p.m. ET Monday through Friday, or online at http://recall.apc.com, or www.apc.com and click on the Recall link to submit a claim and obtain more information.

Description

This recall involves APC 7 and 8 series SurgeArrest surge protectors manufactured before 2003. The model and serial numbers are located on a label on the bottom of the surge protector. The two numbers that follow the first letter or letters in the serial number sequence indicate the year of manufacture. The unit is included in the recall if the numbers are 93, 94, 95, 96, 97, 98, 99, 00, 01 or 02. APC and the words Personal, Professional, Performance or Network are printed on the surge protectors. The following model numbers are included in this recall.

7 Series model numbers	8 Series model numbers
NET7	NET8
NET7T	NET8N
NET7T-C	PER8T
PER7	PER8TR
PER7C	PER8TR-CN
PER7T	PER8TVR
PER7T-CO	PER8XTV
PER7T-U	PRF8T2
PER7TX137	PRF8TT
PER7-U	PRO8
PER7X148	PRO8T2
PRF7	PRO8T2C
PRF7T	PRO8T2MP12
PRO7	PRO8T2MP12B
PRO7C	PRO8TV
PRO7T
PRO7TX183

Incidents/Injuries

The firm has received 700 reports of the surge protectors overheating and melting and 55 claims of property damage from smoke and fire, including $916,000 in fire damage to a home and $750,000 in fire damage to a medical facility.  There are 13 reports of injuries, including smoke inhalation and contact burns from touching the overheated surge protectors.

Remedy

Consumers should immediately stop using the recalled surge protectors, unplug them and contact Schneider Electric for a free replacement surge protector.

Sold at

Best Buy, Circuit City, CompUSA, and other stores nationwide from January 1993 through December 2002 for between $13 and $50.

Manufacturer

American Power Conversion (APC), now known as Schneider Electric IT Corp., of West Kingston, R.I.

Source:  https://www.cpsc.gov/en/Recalls/2014/Schneider-Electric-Recalls-APC-Surge-Protectors/

Black Boxes Aren’t Just For Airplanes — The Use Of Vehicle Data Recorders In Products Liability Cases

 

The National Highway Traffic Safety Administration (NHTSA) has proposed new regulations requiring that automobile manufacturers include vehicle data recorders, frequently called “black boxes,” in all motor vehicles produced after September 1, 2014.   Data recorders constantly monitor different types of data from a vehicle.   Especially important for “crashworthiness” products liability cases, data such as vehicle speed, braking, and whether the driver was wearing a seatbelt is recorded and maintained if the vehicle is in a crash.  Vehicle data from seconds before a crash is saved if a vehicle’s air bags deploy or the data recorder senses a collision has occurred.

Personal injury or wrongful death victims of crashes caused by vehicle defects can use the data from the recording devices.  Data from the vehicle’s black box can help determine why a crash occurred and whether a design or manufacturing defect caused or contributed to the crash.  That can be extremely useful if the vehicle’s data supports your case because data from the black box is difficult for vehicle manufacturers to refute, almost like DNA evidence.

Along with products liability lawsuits, black boxes can also impact ordinary motor vehicle accident cases too.  Vehicle data devices could establish a vehicle’s movement, speed, braking, etc., as well as seatbelt use or nonuse.  That information may be evidence in deciding which driver was at fault in the crash.