MINAHAN AND SHAPIRO, P.C.

ATTORNEYS AT LAW

Thanks to Kevin Fornelius of AFGE Local 1592 for bringing to our attention the recent decision in INS, 58 FLRA No. 165 (2003). The case involved a number of data requests, including a request by the Union for the "statutory or regulatory basis" that permitted the Agency to rescind 2 adverse actions and reissue a single proposed removal. The Authority rejected the agency's argument that this required it to perform legal research and said the agency was only required to provide documents in its possession. We think it's a very creative data request.

The Americans with Disabilities Act prohibits employers from requiring employees to submit to mental examinations, even if they are not disabled or regarded as disabled. The decision Jackson v. Lake County, 41 GERR, 1004 (N.D. Ill. 2003), involved an employee who complained that his coworkers were hazing and harassing him on the job. The employer thought this was enough to require the employee to take a mental examination but the Court ruled that for a mental examination to be allowable under the ADA there must be sufficient evidence to doubt whether the employee is capable of performing his job and any examination must be limited to determining whether the employee can perform the essential job functions.

The MSPB issued an encouraging decision in Berkowitz v. Dept. of the Treasury, September 30, 2003, on the types of disclosures that are covered by the Whistleblower Protection Act. The MSPB ruled that a claim that the agency is improperly spending its salary funds is protected, that a claim that the agency may be misleading Congress is also protected and that a claim that the agency manipulated the creation and promotion process of a specific position so that only certain employees were eligible is also a protected disclosure concerning abuse of authority.

On July 24, 2003, EEOC issued an advisory letter reminding all employers that employees cannot be required to waive EEO claims based on events that could happen in the future. The advisory letter dealt specifically with job applications in which employees are asked to release employers from liability for providing information about the applicant. The advisory letter gave the example of an applicant who wanted to challenge an improper disability related inquiry or medical examination. The EEOC advised that the employee would not lose the right to do so even if he had signed a waiver on his employment application.

Congratulations to Mike Hurley who helped AFGE Local 1103 at Rocky Flats, Colorado win the decision in 59 FLRA No. 31 (2003). The case involved employees who were sent for training, after which the agency determined that they were not entitled to the training and sought to recoup the training costs from them. The employees grieved and the Arbitrator ruled in their favor. The FLRA upheld the Arbitrator's award, noting particularly the "magic" language (that ought to be in every labor contract) which required that employees be treated fairly and equitably. The FLRA said that contract language of this nature was a sufficient basis for the Arbitrator's award precluding the agency from demanding reimbursement for training expenditures.

The EEOC dealt with a recurring question in Vyas v. Brownlee, EEOC No. 03A20003 (September 29, 2003). The employee was medically disqualified from his job and complained that the employer did not perform a search for vacant positions into which he could be reassigned. The EEOC ruled that the failure to conduct an appropriate search is not in itself a violation of the ADA. Instead, no violation exists unless there is proof that there was a vacant funded position for which the employee was qualified and into which he could have been reassigned.

There have been many court decisions involving employees with diabetes where the question was whether they were persons with a disability. Many of these decisions find that diabetic employees are not covered by the ADA since their conditions are completely controlled through medication. In Fraser v. Goodale, 14 AD Cases 1377 (9^th Cir. 2003), however, the Court found that a diabetic employee was covered by the ADA. The Court determined that the employee was substantially limited in the major life activity of eating. The employee was required to monitor the food she eats, measure her blood sugar several times a day and give herself injections. The Court agreed with her that this regimen is perpetual, severely restrictive and highly demanding and that she faces dire consequences if she does not adhere to it.