Last week a New York federal appeals court determined that while alcoholism can be considered a disability under the Americans with Disabilities Act (“ADA”), the impairment cannot protect an employee from termination if it affects his ability to show up for work. Bruce VandenBroek sued his former employer, claiming he was terminated because of his alcoholism and for taking medical leave to treat his alcoholism. The court in VandenBroek v. PSEG Power CT LLC disagreed, holding that where regular attendance is an essential job function, the Americans with Disabilities Act and the Family and Medical Leave Act should not shield an employee from termination when s/he is chronically absent from work.
Although regular attendance is an essential job function for most positions, the court noted that it was particularly important to this employee’s job because “reliable employee attendance was . . . essential to ensuring against a power outage or even an explosion.” Finding the employee failed to prove he was terminated for taking protected leave under the FMLA, the court further ruled he was terminated for violating the employer’s “no call/no show” policy.
Nevertheless, employers must act with caution when disciplining or terminating a disabled employee for attendance reasons, and be prepared to demonstrate the specific reasons regular and reliable attendance are essential to job performance. The EEOC offers guidance on this specific issue in “The Americans with Disabilities Act: Applying Performance and Conduct Standards to Employees with Disabilities.”
This also serves as a reminder of the importance of accurate job descriptions. If regular attendance is an essential job function, it should be included in the job description.
A significant loss in productivity.
Yesterday the U.S. Senate passed H.R. 4691, which extends the ARRA COBRA subsidy through March 31, 2010. Compliance assistance for employers will be available at

How do you know when a workplace investigation needs an outside investigator? While we’d love to say “always,” many investigations can be handled internally by competent HR personnel or in-house counsel. There are, however, red-flags that indicate when an outside investigator is necessary:
The COBRA assistance available under the American Recovery and Reinvestment Act of 2009 (ARRA) is scheduled to expire at the year-end. ARRA set up an assistance package to provide recently unemployed workers up to 65% of COBRA premiums to maintain health insurance. While popular with employees, the program has created an administrative headache and an unforeseen cost to employers seeking to survive by shedding payroll costs. The legislative subsidy will expire on January 1, 2010.
With all due respect to our FABULOUS
This past Saturday, November 21st, the antidiscrimination laws were extended to a whole new group of people when the Genetic Information Nondiscrimination Act (“GINA”) became effective. (See our previous post on October 16, 2009.) In an editorial on Sunday,
According to EEOC data










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