Tag Archives: ada

Is Obesity Covered by the ADA

Church & State

                Can you be denied a job based on your weight? Do you have to provide accommodations for overweight employees? The answer to the question of can I be denied a job because of my weight, just like the question of do I have to accommodate an overweight employee, depends on what jurisdiction you are in.

In Maine, New Hampshire, Massachusetts, and Rhode Island, the answer is that obesity is covered under the ADA. An employer in those states must accommodate an overweight employee under the ADA.

However, in Vermont, New York, New Jersey, Connecticut, Michigan, Ohio, Kentucky, Tennessee, North Dakota, South Dakota, Nebraska, Minnesota, Montana, Iowa, Arkansas, Wisconsin, Illinois and Indiana, an employer does not need to accommodate an overweight person based on the ADA, and you can be refused a job for being overweight. 

However, it is not as simple as that, and that is only a list of twenty-two states. Even within those twenty-two states the answer is not as straightforward as it may seem.

               

In 2018 the EEOC released guidelines regarding when obesity is considered a disability, and it found that the person’s weight must be beyond the normal limits, and result from an underlying psychological condition. https://www.natlawreview.com/article/does-obesity-qualify-disability-under-ada-it-depends-who-you-ask-us In the states mentioned above as not being a state where an employer has to accommodate someone for being overweight, under the ADA, the employer still may have to accommodate that person if their weight problem is the result of a psychological condition.

For the twenty-eight states not listed, the question remains whether the ADA covers weight problems. https://www.businessmanagementdaily.com/60437/is-obesity-a-disability-under-ada/

                For the twenty-eight states not listed above, there is a safe route you can take as an employer, if someone’s weight problem is the result of another disability, such as a phycological impairment, assume that you need to accommodate them. However, if the weight problem is not the result of another disability, four, out of five, of the Federal Appellate Courts, who have made decisions, have found that weight, alone, is not a disability under the ADA.

There is no guarantee that Federal Courts in the other twenty-eight states will rule one way, or the other, about whether being overweight qualifies as a disability under the ADA. However, the interpretations that a federal agency gives regarding its own guidelines, hold a lot of weight in the courtroom. On this subject the EEOC has interpreted their own definition of disability to only include being overweight, under the ADA, when it is the result of a psychological condition, not as a disability in and of itself. https://www.hrsource.org/maimis/Members/Articles/2016/04/April_19/Is_Obesity_a_Disability_Under_the_ADA_.aspx

By: Joshua H. Sheskin, Esq., M.A. -Trial Counsel- Lubell & Rosen, LLC. 954-880-9500 JHS@LubellRosen.com

Do Churches need to follow Federal Labor Laws?

Church & State

Can a Church fire me for having a disability, do churches need to follow the Civil Rights Act or Title VII of that act, does a church have to follow the ADA, does a church have to pay minimum wage and overtime (The Fair Labor Standards Act, FLSA), or can a church discriminate based on sex, are just a few of the interesting questions I get as a labor lawyer. Whether a religious institution must comply with Federal Labor Laws is a complex question, which I will try to bring some clarity to.

There is no simple yes, or no, answer as to whether a church must follow Federal Labor Laws. The answer is that it depends on who the employee is. The “it depends” answer, is, basically, the short version of the answer given by the Supreme Court, in a case called Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, 565 U.S. 171 (2012) (https://www.oyez.org/cases/2011/10-553). The “it depends” answer, is what a coalition of states is currently petitioning the Supreme Court for more clarity on. https://www.law360.com/california/articles/1212213/states-ask-high-court-to-clarify-ministerial-exception-

Churches have the absolute right to control who “shepherds their flock,” which is why in the context of labor laws there is something called the “Ministerial Exemption.” Meaning a church can chose whoever it wants as a religious leader, and fire whoever it wants as a religious leader, without worrying about Federal Labor Laws. A ministerial employee, as they are called, has a job on the basis of the church deciding they are who should lead the members’ spiritual lives, which can change at any time, for any reason, and those are decisions the government will not interfere with.

While obviously a priest, rabbi, imam, preacher, or reverend, is a ministerial employee, because they are clergy, who else working for a religious institution is a ministerial employee is more complex. The conflict arises from situations like the one the Supreme Court considered in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, (https://www.supremecourt.gov/opinions/11pdf/10-553.pdf), in which a teacher at a church school attempted to sue under the ADA, because she was fired for having narcolepsy. The Court found that the teacher could not sue the school for firing her, because she had been through formal religious training, and had been chosen as a leader in Christian knowledge suited to pass on that knowledge, by the congregants of the Church. The teacher’s combination of special training in Christianity, and election as a religious leader by her congregation, the Court said, made her a ministerial employee who could not sue under the ADA.

There is no clear bight line that can be drawn as to who qualifies as a ministerial employee and who does not, however, there are some things that guide the determination. The title someone is given is not determinative but is also not irrelevant. Generally, if an employee has formalized religious education, in the institution’s religion, chances are they will be a ministerial employee. Also, anyone who is designated by a religious group, as a spiritual leader, will likely be a ministerial employee, if their work for the religious institution involves some level of giving spiritual guidance, or religious education, to other members of the religious organization. Hence, while office, and janitorial, staff, are, almost always, fully protected by Federal Labor Laws, the choir director, or education director, may not be. A religious institution can discriminate in any way it chooses when picking who its spiritual leaders are, but the institution must abide by Federal Employment Laws for all other employees.

An Illegal Immigrant Can Sue Their Employer in Federal Court

One of the most common misconceptions that employers have is that illegal immigrants cannot sue their employers. Illegal immigrants can sue their employers in Federal Court for the non-payment of minimum wage, and overtime, pay under the Fair Labor Standards Act (FLSA). Under the FLSA it does not matter whether someone is in the country illegally, nor will they be deported for filing a lawsuit. There are places in the country where an illegal immigrant cannot bring a Federal Lawsuit, but in Florida, Alabama, Georgia, and other states, an illegal immigrant can bring a lawsuit under the Fair Labor Standards Act (FLSA). Employers have to pay all of their employees in accordance with Federal Regulations or risk an expensive lawsuit. – By Joshua H. Sheskin, Esq., 954-880-9500JHS@LubellRosen.com

Under Federal Labor Law Very Few Employees are Independent Contractors

The law does not give the option to employers to pay their employees as independent contractors by paying them via 1099 rather than W-2. For purposes of Federal Labor Laws, and the Fair Labor Standards Act (FLSA), an independent contractor is a person who is not economically dependent on any one employer as a primary source of income. When you hire someone to paint your house you are hiring them as an independent contractor, but when you own a business and your employees depend on you to make a living you cannot hire them as independent contractors. This comes as a surprise to many business owners, and I defend businesses all of the time that make the mistake of classifying their employees as independent contractors. The line between independent contractor and employee can get fuzzy, even a part time employee with a second job may, or may not, be an independent contractor. Companies such as Grub Hub have come under fire, recently, for classifying their drivers as independent contractors. Do not risk misclassifying your employees, it can be a costly mistake. For advice as to whether your employees are independent contractors call, or email, attorney Joshua Sheskin of Lubell Rosen. – By Joshua H. Sheskin, Esq., 954-880-9500JHS@LubellRosen.com