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Labor and Employment Law Update www.pepperlaw.com

Third Quarter 2008

The Americans with Disabilities Act Amendments Act of 2008 The Americans with Disabilities Act Amendments Act of 2008 (ADAAA) is designed to “restore protections for the broad range of individuals with disabilities as originally envisioned by Congress.” When effective on January 1, 2009, the ADAAA undoubtedly will lead to legal actions to determine how courts and administrative agencies will interpret these amendments, which will profoundly affect employers’ relationships with their workers. The ADAAA was enacted by Congress to reverse several U.S. Supreme Court decisions that limited the ability of individuals to qualify as disabled under the Americans with Disabilities Act (ADA). These decisions narrowly defined “disability” such that, as explained by Congress, “people with a range of substantially limiting impairments are not people with disabilities.” In Sutton v. United Airlines, 527 U.S. 471 (1999), the Supreme Court held that mitigating or corrective measures allowing individuals to cope with or control their impairments must be considered in determining whether the individual is considered disabled under the ADA. In Toyota Motors v. Williams, 534 U.S. 184 (2002), the court stated that “merely having an impairment does not make one disabled for the purposes of the ADA.” Individuals have been required to meet a more demanding standard of demonstrating that an impairment severely restricts their ability to perform activities of “central importance to most people’s daily lives.” Based on the logic of these decisions, employers have won a majority of motions to dismiss ADA lawsuits filed in recent years. Under the ADAAA, the term “disability” is redefined and the scope of “major life activities” is expanded, affording more individuals a greater opportunity to present their claims to a jury.

also in this issue 2 Peppercasts 2 Sick Building Syndrome — Is Your Office Making Your Employees Sick? 3 Be Aware of the Workplace Bully

The ADAAA will: • emphasize that the definition of disability should be construed in favor of a broad coverage for individuals under the Act • prohibit consideration of the impact of any mitigating measures, such as medication or corrective devices (with the exception of eyeglasses and contact lenses), when determining whether an individual is disabled • include as disabilities impairments that may be episodic or in remission, as long as when the impairment is active, it substantially limits a major life activity • provide that so long as the impairment is not transitory (with a duration of six months or less) or minor, an individual, who claims to be “regarded as having a physical or mental impairment,” only needs to show that he or she was subjected to discriminatory action based on the employer’s perception of an impairment • define major life activities to include standing, bending, lifting, concentrating, thinking, reading, communicating and the performance of any major bodily function. As more individuals fall within the protections of the ADA and as the courts wrestle with the new definitions under the Act, we expect to see more claims filed with the Equal Employment Opportunity Commission and increased litigation. If you have questions about the new legislation, or would like us to review your policies and procedures so that you will be ready to address the sweeping changes these amendments may bring, please contact us. Authors: Robert C. Ludolph 313.393.7368 [email protected] Heather A. Hoyt 610.640.7833 [email protected]

Labor and Employment Law Update

Sick Building Syndrome — Is Your Office Making Your Employees Sick?

New Peppercasts Available

Although it may seem like the far-fetched excuse of an employee hoping to take a few days off from work, a condition known as “Sick Building Syndrome” (SBS) may actually be the cause of a multitude of sicknesses suffered by employees who have no diagnosable illness. Although many have never heard of SBS, a 1984 World Health Organization report estimated that up to 30 percent of new and remodeled buildings worldwide may be linked to symptoms of SBS.

• A recent survey found that 37 percent of American workers have been bullied at work. In this podcast with Susan Lessack, a partner in the Berwyn and Philadelphia offices of Pepper Hamilton, she discusses this concept and the potential consequences for employers. • It may sound like an employee’s stunt to wrangle some time off from work, but sufferers of Sick Building Syndrome (SBS) can develop a spectrum of health problems that appear linked to time spent in a particular building. In this podcast, attorney Lawren Briscoe discusses what SBS means for employers and what they can do if an employee complains of symptoms related to SBS.

What is Sick Building Syndrome? Sick Building Syndrome was initially recognized by the World Health Organization in 1982, and is used to describe situations in which building occupants experience adverse health effects that appear to be linked to time spent in a particular building, but are not linked to a specific cause. SBS can occur in both residential and commercial buildings and is comprised of a wide variety of symptoms that can affect people to different degrees. Although specific causes of SBS are unknown, inadequate ventilation, chemical contaminants from outdoor and indoor sources, and biological contaminants all have been cited as causes of or contributing factors to SBS.

Listen today by visiting the Labor and Employment Law section of www.pepperpodcasts.com.

Courts have rejected such claims from employees who are simply unable to work in one particular location, because the employees are not able to establish that they are “disabled” within the meaning set forth under the ADA. Heilweil, 32 F.3d at 723 (where plaintiff was medically restricted from working in only one area of the hospital, she was not substantially limited in the major life activity of working and therefore was not disabled under the ADA); Johns-Davila v. City of New York, 2000 U.S. Dist. LEXIS * 40 (S.D. N.Y. Nov. 20, 2002) (“An impairment which only restricts a plaintiff from working in a particular location does not satisfy the disability requirement under the ADA.”). Even if the employee meets the ADA’s definition of disabled, courts have placed restrictions on the lengths to which an employer must go to provide that employee with a reasonable accommodation. See Martinez v. Ohio Dep’t of Admin. Serv., 693 N.E.2d 1152 (Ct. App. 1997) (reassignment to different location was a reasonable accommodation under the ADA, despite fact that plaintiff requested air-filtering system be reinstalled; employer not required to show that reinstalling system would present undue hardship).

Symptoms can vary among people and across time, but the aggregate experience of affected people can provide a picture of the problem. These symptoms range from the specific, such as itchy eyes, skin rashes, and nasal allergy symptoms, to the more vague, such as fatigue, aches and pains and sensitivity to odors. They may occur only in a particular room or zone, or may be widespread throughout the building. However, the symptoms are usually alleviated once the occupant is no longer in the building. What Does This Mean for Employers? Some employees suffering from SBS have brought claims under the Americans with Disabilities Act (ADA), contending that they are disabled and require some type of accommodation to be able to work. See Heilweil v. Mount Sinai Hosp., 32 F.3d 718 (2d Cir. 1994); Maclean v. Arizona Dept. of Educ., 195 Ariz. 235 (Ariz. App. 1999). -2-

Labor and Employment Law Update Employees have also sought recovery for SBS-related illnesses under state workers’ compensation laws. To show that the SBS-related illness is covered by workers’ compensation, an employee must establish a causal link between the illness and the building. See Nicholson v. Mohawk Valley Cmty. College, 274 A.2d 667, 678 (N.Y. App. Div. 2000) (claimant was not entitled to workers’ compensation benefits due to exposure to dust and other allergens in her work environment because she failed to show a causal relationship between her symptoms and her employment).

2. test the building’s air quality to determine if there are any environmental issues that should be remedied 3. if the air quality tests are normal and the employee’s symptoms seem localized to a particular building, there is probably no requirement to provide a reasonable accommodation. Of course, the employer may decide to provide a reasonable accommodation anyway if it does not pose an undue hardship. For example, improving the ventilation in the area where the employee works may be a relatively inexpensive solution. 4. if the air quality tests reveal a problem and the employee’s difficulties are not limited to one building, the employer should engage in an interactive dialogue to determine how the employee can be accommodated 5. if the air quality tests reveal a problem and the employee is not disabled (because, for example, the employee’s symptoms are triggered only in one building), the employer may want to consider remediating the air quality problem, even though it has no duty to reasonably accommodate the employee 6. once it is decided what (if any) remedial measures will be taken, the employer should implement those and periodically monitor whether they are effective.

In addition to the time and costs associated with defending claims brought by SBS-suffering employees, SBS can have a detrimental affect on other aspects of an employer’s business. SBS can reduce employee productivity and reliability. Employees working in a sick building generally use more sick days. Often when employees work in a sick building, they feel a sense of relief and renewed health after leaving work. This can lead to poor morale as well as high turnover. What Can Be Done About Sick Building Syndrome? If an employee complains of potential SBS-related symptoms, there are a number of remedial steps an employer may take:

Authors: Susan K. Lessack 610.640.7806 [email protected]

1. engage the employee in an interactive dialogue to identify the source of the employee’s symptoms and to learn from the employee (and his or her physician) when and where those symptoms occur

Lawren H. Briscoe 215.981.4830 [email protected]

Be Aware of the Workplace Bully According to a recent Zogby International survey, 37 percent of American workers have been bullied at work (www.workplacebullyinginstitute.org). Not surprisingly, the overwhelming majority (72 percent) of bullies are bosses.

harassment. (www.medicalnewstoday.com, “Workplace Bullying More Harmful Than Sexual Harassment,” March 10, 2008). But, unlike harassment based on a protected class, bullying may not be prohibited by law. Thirteen states have proposed “healthy workplace” legislation, prohibiting workplace bullying. To date, none of the statutes has passed. In general, this legislation prohibited employers from creating or permitting “abusive conduct” or an “abusive work environment.” The various statutes define “abusive conduct” broadly as an employer’s or another employee’s conduct that a reasonable person would find hostile or offensive.

Workplace bullying generally refers to harassment that is not necessarily based on an employee’s protected characteristic, such as gender or race. Like harassment based on a protected characteristic, bullying can affect adversely physical and emotional health. In fact, some researchers concluded that workplace bullying actually has more severe consequences on employees than sexual -3-

Labor and Employment Law Update If workplace bullying laws are enacted, employers will confront lawsuits raising legal issues that have been easily dismissed under discrimination laws. For example, it is well-settled law in the discrimination context that discrimination laws do not impose a civility code on employers and that mean-spirited behavior in the workplace is usually not unlawful if it is not based on an employee’s protected class. Under the proposed workplace bullying laws, such behavior may be actionable. The proposed laws would invite courts and juries to scrutinize how people treat each other at work. While a laudable goal, should respectful behavior at work be legally required?

It is too soon to predict whether the Raess case presages a trend of workplace bullying claims. If it does, what should employers do to minimize the risk of such claims? The difficulty for employers is that different employees subjected to the same conduct will often perceive it differently; what one employee feels is bullying may not trouble another employee. Where is the line between a supervisor being demanding and being abusive? Certainly, employers should have clear policies that bullying behaviors are not tolerated. The employee handbook should emphasize that employees are to treat each other with respect. Employers also should encourage employees who feel bullied to report the conduct, much the same as discriminatory harassment complaints are handled. Bullying complaints should be treated seriously and investigated. Depending on the findings, employers should take appropriate remedial actions, if warranted.

Indiana Ruling A recent decision highlights potential costs of allowing workplace bullying to go unchecked. The Indiana Supreme Court in Raess v. Doescher, 883 N.E. 2d 790 (Ind. 2008) acknowledged that workplace bullying exists when it affirmed a ruling in favor of a hospital employee who sued a surgeon, claiming emotional distress and assault.

As with other employment-related claims, employees who feel they are treated fairly are less likely to sue their employers.

The case arose from an incident in which the defendant, a cardiac surgeon who was angry at the plaintiff over his reports to the hospital administration about the defendant’s treatment of other perfusionists (technicians who operate heart/lung machines), “aggressively and rapidly advanced on the plaintiff with clenched fists, piercing eyes, beet-red face, popping veins, and screaming and swearing at him. The plaintiff backed up against a wall and put his hands up, believing that the defendant was going to hit him, ‘that he was going to smack the s**t out of me or do something.’ Then the defendant suddenly... stormed past the plaintiff and left the room, momentarily stopping to declare to the plaintiff ‘you’re finished, you’re history.’”

Author: Susan K. Lessack 610.640.7806 [email protected]

The material in this publication is based on laws, court decisions, administrative rulings and congressional materials, and should not be construed as legal advice or legal opinions on specific facts. The information in this publication is not intended to create, and the transmission and receipt of it does not constitute, a lawyer-client relationship.

The plaintiff sued the surgeon for assault and intentional infliction of emotional distress. At trial, the plaintiff called a workplace bullying expert who opined that the surgeon was a “workplace abuser.” The jury found in favor of the plaintiff on the assault claim and awarded damages of $325,000. The surgeon appealed, arguing among other things that the trial court had erred in refusing to instruct the jury that workplace bullying was not at issue in the case. The Indiana Supreme Court disagreed, explaining that workplace bullying could be a form of intentional infliction of emotional distress (which was still part of the case at that point).

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