Peter Panken, Frank Morris, Jr., Quoted in Article, “EEOC Legal Counsel, Management Lawyer Discuss Case Developments Under ADAAA”

Bloomberg BNA's Daily Labor Report

Peter Panken, a Member of the Firm in the Labor and Employment practice, in the New York office, and Frank Morris, Jr., a Member of the Firm in the Litigation and Employee Benefits practices, in the Washington, DC, office, were quoted in an article titled "EEOC Legal Counsel, Management Lawyer Discuss Case Developments Under ADAAA," written by Patrick Dorrian.

Following is an excerpt:

The "initial wave" of cases decided under the ADA Amendments Act shows that some courts understand the changes made to the Americans with Disabilities Act by the amendments, while other courts do not seem fully aware of the new standards, an Equal Employment Opportunity Commission attorney said March 22 at an employment law conference.

Peter M. Panken of Epstein Becker & Green in New York, who moderated the session, said courts applying New York law often have found that a cold can be a disability, so employers should be aware of whether their state's law is stricter than the ADA. New York City law is even more liberal, he added, citing the Local Civil Rights Restoration Act.

His law partner, Frank C. Morris, who is with Epstein Becker's Washington, D.C., office, said it is important for employers to be knowledgeable regarding the most common impairments claimed under the new law.

An interesting recent decision, Morris added, was on that addressed the intersection of the ADAAA and the Family and Medical Leave Act. In the case, the court examined whether a mother had the right to take FMLA leave to care for her daughter, who claimed her broken leg rendered her disabled under the ADAAA. The case also illustrates that the issue of "duration" has changed in general for purposes of ADA coverage, he said.

Morris also cited a case involving a claim of disability based on obesity, where the court said it was irrelevant whether the plaintiff brought on her condition voluntarily. The court also found it important to look at whether the plaintiff's obesity led to other impairments, he said.

But in a recent case decided for the employer, Morris added, the court held that there was no duty to accommodate a bipolar teacher who failed to renew her professional certification. However, he said, whether an employer needs to accommodate an allegedly disabled employee who wants time off to meet a certification requirement might present a different question.

Another case, which involved an employee who alleged that her pregnancy impaired her ability to lift and drive long distances, was a case that addressed the intersection between the ADA and pregnancy discrimination law, Morris said. The court ruled that the plaintiff was not covered by the ADA because her condition rendered her unqualified to perform the essential functions of her job, he said.