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Americans with Disabilities Act
FAQ: Hepatitis A and the Workplace

Hawaii is currently experiencing a major outbreak of Hepatitis A.  At last count, nearly 140 individuals in Hawaii have been infected with the Hepatitis A virus (“HAV”).   As a result, many Hawaii employers are left with a myriad of questions about the rights of employers and employees with regards to HAV in the workplace.

Many People Thinking of Questions

Examples of questions raised by employers regarding Hepatitis A include the following:

  • What is Hepatitis A?
  • How long is a person with Hepatitis A contagious?
  • Who should get tested for Hepatitis A?
  • Is there a vaccine that can prevent Hepatitis A infection?

In addition, workplace-specific questions have included the following:

  • Does the Department of Health (“DOH”) require employees in certain fields of work, such as food service or healthcare, to obtain Hepatitis A vaccinations prior to working?
  • How does a food service employer know if an employee has been found to have been infected with Hepatitis A?
  • How does a food service employer know which employees are a “contact” that needs to obtain a negative IgM test before resuming work?
  • Can an employer require employees to get vaccinated?  If so, can the employer limit this requirement only to certain job classifications?
  • Is the employer required to pay for Hepatitis A vaccinations?
  • Is time spent getting a Hepatitis A vaccination compensable under wage and hour laws?
  • Is there anything else an employer can do to help prevent the spread of Hepatitis A?
  • If an employee informs his employer that he has tested positive for Hepatitis A, what if anything can the employer tell its employees?
  • If an employee informs his employer that he has consumed food from a business that has an infected employee, what can the employer do?
  • Where can I read more information about Hepatitis A?

In response to the multitude of questions that employers have been asking the past few weeks, the Hawaii Employers Council (“HEC”) has prepared a FAQ on HAV and the workplace.  The FAQ can be accessed on HEC’s website here:  HEC Issues FAQ for Hepatitis A and Workplace Issues.

For any questions that have not been answered in the FAQ, please feel free to contact me

Workplace Accommodations Made Easy

Hi Everybody!   I hope you’ve all had a great year so far and have at least some free time to enjoy the Holiday Season!  I can’t believe that it’s Thanksgiving week already.  It seems like the days, weeks, months and years seem to go by so much faster as I get older.  Like the saying goes…


Anyway, I wanted to send out a quick blog post to let you all know about an exciting workshop I will be presenting in the first quarter of 2015.  Due to several requests from HEC members, I’ve decided to put together a half-day program discussing the different types of accommodations employers must provide their employees (applicants and volunteers) in the workplace.  The topics of discussion will include accommodations based on disabilities, religion, pregnancy, status as a victim of domestic or sexual violence, and gender identity and expression, as well as others

The seminar will be presented on the following dates and locations.  All sessions will be held from 9 am to 12 noon.  (Click for link to registration form.)

The program will be informative, interactive and (hopefully) fun!  You can register for the event by visiting the training section of the HEC website at  I hope you can join me and Happy Holidays!


Ninth Circuit Rules Attendance Is Essential Function for NICU Nurse

In Samper v. Providence St. Vincent Medical Center (9th Cir., April 16, 2012), the Ninth Circuit ruled that an employer did not violate the Americans with Disabilities Act (“ADA”) when it denied the request of an employee who had fibromyalgia to exempt herself from the employer’s attendance policy.

In that case, the plaintiff worked as a nurse in the neo-natal intensive care unit (“NICU”) unit of a medial care center.  The plaintiff also had a medical condition called fibromyalgia, which limited her ability to sleep and caused her chronic pain.  Due to her fibromyalgia, the plaintiff was often absent from work.

The employer had an attendance policy that allowed employees to take up to five unplanned absences during a 12-month rolling period.  The employer also took the position that regular attendance was an essential function of an NICU nurse.  Specifically, absences from NICU staff can jeopardize patient care because NICU nurses require special training , and therefore, the universe of nurses that can be called in a the last minute is limited.  Thus, being understaffed is highly undesirable, and can potentially compromise patient care.

Over the course of several years, the employer provided the plaintiff with several accommodations, including allowing her to call in on bad days, various scheduling adjustments, readjusting her schedule so that she did not work consecutive days, and granting her numerous extended leave of absences.  None of the accommodations, however, were sufficient.  Finally, due to the plaintiff’s repeated violations of the attendance policy, the employer decided to terminate the plaintiff’s employment.

The plaintiff sued and argued that she had been denied a reasonable accommodation for her disability.  In her lawsuit, the plaintiff argued she should have been exempted from the company’s attendance policy.  The District Court disagreed, and dismissed her lawsuit.  The Ninth Circuit upheld the dismissal.

In issuing its decision, the Ninth Circuit noted that regular attendance was indeed an essential function of an NICU nurse.  The court also added that, where performance of a job requires attendance at the job, irregular attendance compromises essential job functions.  With these concepts in mind, the court stated that the “common-sense notion that on-site regular attendance is an essential job function could hardly be more illustrative than in the context of a neo-natal nurse.”

The Samper decision was certainly a good result for employers.  It was also, however, very fact specific.  In the Samper case, regular attendance was certainly a mandatory component of the NICU nurses’ jobs.  In other situations, however, where employees are more “fungible” or regular physical attendance is not as essential as it would be for an NICU nurse, employers should be cautious in how they handle employees who require leave due to disabilities.  On that note, employers should be aware of a prior Ninth Circuit decision in Humphrey v. Memorial Hosps. Ass’n, (9th Cir. 2001), where the court ruled that a medical transcriptionist who had OCD should have been granted an accommodation to (occasionally) work from home, as opposed to requiring her to physically show up for work for her scheduled shifts.  In that case, the employer did not dispute that it would have been possible for a transcriptionist to work from home; in fact, several were already doing so.  Accordingly, the court ruled that the employer violated the ADA when it terminated the employment of the transcriptionist, because physical attendance was not an essential job function for that employee.

You can read the Samper case here and the Humphrey case here.

ADAAA Regulations Published Today

The revised regulations for the Americans with Disabilities Act (“ADA”) were published today in the Federal Register. They become effective in 60 days.

As I’m sure most of you are aware, the Americans with Disabilities Amendments Act (“ADAAA”) has been effective since January 1, 2009.  This new law essentially expanded the definition of the word “disability” as used under the ADA, and it is now easier for individuals to seek protection under the ADA and establish that they have a “disability” within the meaning of the ADA.

The new law also directed the Equal Employment Opportunity Commission (“EEOC”) to amend its regulations to comport with the new ADAAA.  The EEOC issued the new regulations yesterday afternoon, and announced that they would be published in the Federal Register today.

You can view a copy of the new ADAAA regulations here.

Position Not “Vacant” Under ADA If Filled By Temp

The Tenth Circuit Court of Appeals recently ruled that a job position was not “vacant” for purposes of the reasonable accommodation analysis under the Americans with Disabilities Act (“ADA”), where the position was already filled by a temporary worker and would eventually be outsourced.

In Duvall v. Georgia Pacific Consumer  Products (10th Cir., June 9, 2010), the plaintiff suffered from cystic fybrosis and worked in the shipping department of Geogia Pacific (“GP”).  When GP began outsourcing work from its shipping department, the plaintiff transferred to the converting department in the company.   Unfortunately for the plaintiff, the converting department involved converting raw rolls of newly-fabricated paper into finished product (such as napkins), and as a result, the air in the converting department had a significant amount of paper dust.

The dust in the converting department took a major toll on the plaintiff’s health, and he asked to be transferred back to his former position as a reasonable accommodation under the ADA.   GP refused this accommodation, stating that his former position was not vacant. The plaintiff then filed a lawsuit under the ADA.

In addressing the plaintiff’s claims, the court first noted that “[i]f a disabled employee can be accommodated to a vacant position . . . the employer must offer the employee the vacant position.”  The court also noted, however, that the job must indeed be “vacant,” and that the term “vacant” had not yet been defined by the federal courts.  The court further noted that the Equal Employment Opportunity Commission has provided:  “Vacant means that the position is available when the employee asks for reasonable accommodation, or that the employer knows that it will become available within a reasonable amount of time.”

The court then concluded that “a position is ‘vacant’ with respect to a disabled employee for the purposes of the ADA if it would be available for a similarly-situated non-disabled employee to apply for and obtain.”  Based on this conclusion, the court ruled that the job position at issue in this case was not “vacant.”  Therefore, GP did not violate the ADA by refusing to offer the position to the plaintiff.