APRIL 2002

Our Regular Reminder

This is a reminder to all our union clients of the various services available through our firm. Most of our retainer agreements provide for unlimited legal advice, on-site visits and filing and processing of unfair labor practice charges. Please do not hesitate to contact us if you would like to have one of us conduct training, meet with employees or review a case for arbitration or MSPB. We are also just a phone call or a fax away if you need help or feedback researching any legal issue on federal sector employment. Check out our web site at http://minahan.wld.com .

Requiring Doctor's Note May Violate ADA

An interesting decision out of New York may have some implications for federal sector cases. The New York Department of Corrections had a rule requiring employees to submit a brief doctor's diagnosis after each sick leave absence. A federal district court ruled that this violates the ADA's prohibition on certain medical inquiries. The specific section of the law is 42 USC 12112(d), which prohibits employers from "making inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job related and consistent with business necessity." The Court ruled that the requirement for a medical diagnosis after a brief absence would be likely to cause employees to reveal a disability or a perceived disability and that there was no justification for this policy.

ADA - Protection from Reprisal

The 10" Circuit clarified an important point about the protection for filing an American's with Disabilities Act complaint in Selenke v Medical Imaging of Colorado, 248 F. 3d 1249 (10th Cir. 2001). The employer argued that the employee was not protected from reprisal for filing an ADA complaint because she was not actually disabled. The Court rejected this argument, saying that employees are protected from reprisal for filing an ADA complaint even if they are not disabled so long as they have an honest belief that they suffer from a disability.

No Privacy Rights for Office Computer

A public employee in Oklahoma was prosecuted for possession of child pornography images on his office computer. The employee argued that the search of his computer violated his Fourth Amendment right to be free from a warrant-less search. The Court ruled that the employee had no reasonable expectation of privacy in his office computer because of the employer's written policy that it reserves the right to access anything on the computers and because of the opening message flashed on the screen to the effect that the contents of the office computers were subject to search. United States v Angevine, 40 GERR 279 (1 0th Cir. 2002).

Protected Screen Saver

Your office computer is not completely off limits to personal use. A Hospital employee filed an unfair labor practice charge when she was prohibited from displaying a union screen saver at her computer work station. The NLRB ruled in her favor after it found that the hospital permitted a variety of personal non-work related screen savers at the same time it prohibited the union screen saver. St. Joseph's Hospital, 169 LRRM 1049 (2001).

Title 38 RIF Protection

Good news for the VA employees who are covered by the Title 38 U.S. Code personnel system. The Federal Circuit has upheld the MSPB's ruling that VA doctors, nurses and other professionals have the right to appeal reduction in-force actions to MSPB. This will require the VA to follow all the rules and regulations on RIF's that apply to other federal government employees. James v Von Zemensk , CAFC No. 00-3418 (Fed. Cir. April 1, 2001).