Law Blog

A big assumption in family law is that the parents of a child will act in the child’s best interests. This is generally true, but there are corner cases that have grabbed national headlines. Parents that refuse to vaccinate their children, decline blood transfusions, and other medical decisions are controversial, especially if their child dies as a result of their decision. A new case in Ohio features another medical parental controversy, but with a culture war twist:

A 17 year old unnamed teen (unnamed for legal reasons) was hospitalized in 2016 for depression, anxiety disorder, and gender dysphoria. According to medical personal who examined the teen, he is suicidal because his father refuses to call him by his chosen name and his parent’s rejection of the teen’s gender identity. He is currently in the temporary legal custody of state family services and lives with his maternal grandparents, who are supportive of his gender identity. He has expressed a desire to stay with them.

 The medical team at the hospital recommends that the unnamed teen receive hormone therapy. His parents believe these hormone treatments would be pointless. The teen’s court appointed attorney and grandparents accept the recommendation of the hospital, which testifies that the hormone treatments are necessary to save the teen’s life.

Whose Best Interests?

There are two arguments in support of custody. Brinkman, the parent’s attorney, argued “it does not appear that this child is even close to being able to make such a life-altering decision at this time.” Brinkman has a point, since he is, according to the hospital, under severe medical distress. Making life-altering decisions while he is under such stress is not recommended. Calling him a child is disingenuous, since he is 17. However, given that he will soon be an adult anyway, it might be prudent to wait a year before making any major decisions. That year would also serve as a “cooling off” period so that he can think about his choice before making it.

There may be another reason the parents don’t want the teen to receive hormone treatment. The state alleges that the “Father testified that any kind of transition at all would go against his core beliefs and allowing the child to transition would be akin to him taking his heart out of his chest and placing it on the table.” The state is forbidden from restricting a person’s right to exercise their religion.

However, religious beliefs should not play a role when determining whether another person should receive medical treatment. The Father may have sincere religious beliefs, but if his almost adult child believes differently, the Father cannot justify his medical decisions based on his religious beliefs. This would effectively put the Father’s beliefs over the child’s best interests, a departure from the foundations of child custody.

How Will This Issue Play Out?

The parent’s attorney attempts to sidestep this issue by arguing about the rights of a parent. “If the maternal grandparents were to be given custody, it would simply be a way for the child to circumvent the necessity of parents’ consent.” This argument puts the cart before the horse. The parents act on behalf of the child because the child is not legally able to make his own decisions, but the child will be a person independent of his parents.

Parental consent is required only because the parent is the person who is able to make an informed decision for the child’s best interests. If the parent is not acting in the child’s best interests or is unable to make an informed decision, there’s no reason to obtain the parent’s consent.

Religious conservatives might see this case as a threat to the custody of their own children. The state can force them to inject their children with drugs and now it wants to change their genders. Even in this case though, there is plenty of due process. First, this was an extraordinary case where the child was diagnosed with depression, anxiety disorder, and gender dysphoria.

Most children will not suffer from this level of mental health issues. Second, the child has been examined by medical experts from the hospital and by court appointed attorneys. These types of decisions will not come down solely to a judge – there will be due process and experts who have examined the child.

Finally, the parents have an opportunity to present their side of the story. They were allowed to testify to the court and their own attorney is advocating on their behalf. At least one party will walk away unhappy, but their voice will be heard.

New bipartisan legislation known as the Pregnant Workers Fairness Act will be taking effect in Massachusetts on April 1st of this year–expanding protections to pregnant women and recent mothers in the workforce.

These sort of laws are incredibly important as pregnancy discrimination is an ongoing problem in this county, just between the years of 2010 and 2015 the Equal Employment Opportunity Commission dealt with over 30,000 charges of pregnancy discrimination. About a third of these charges were women who said they were outright fired for being pregnant, quite a few dealt with harassment issues, while many other charges dealt with being refused simple accommodations such as being allowed to go to the bathroom more often.

There are federal standards in place to protect the rights of pregnant women and recent mothers in the workplace. However, they are more limited than the new Massachusetts rules. There are also state by state laws on the issue. For example, every state except South Dakota, Indiana, Alabama and North Carolina have laws protecting against pregnancy discrimination.

Every state except Wyoming, Wisconsin, Indiana, North Carolina, Florida, and Georgia have laws which require employers to provide some level of accommodations to pregnant workers or recent mothers. There are even laws in about half the states on workplace breastfeeding rights.

These rules are different from state to state, and it is important to know your rights based on where you live. However, no matter where you live the federal rules on the issue will impact you. To better understand your rights, let’s look at these federal rules, the new Massachusetts rules, and developments on this issue in Congress.

The Federal Rules and the Pregnancy Discrimination Act

The federal rules on the issue are primarily laid out in the 1978 Pregnancy Discrimination Act (PDA), although depending on the situation you may have some additional rights under the Americans With Disabilities Act (ADA) or the Family and Medical Leave Act (FMLA). The EEOC treats the issue as an element of sex discrimination under the PDA. However, while the PDA can protect you, it has some limitations. First and foremost, it only applies if your employer has 15 or more employees.

If the PDA applies to your employer, than they are not allowed to discriminate against you because you are pregnant, you were pregnant, you could become pregnant, you intend to become pregnant, have a medical condition related to pregnancy, or have had or are considering having an abortion. This means they can’t fire you, refuse you a job or a promotion, force you to take leave, or give you less desirable work for any of these reasons.

There is an exception for employers if you are unable to do your job at all or would pose a significant safety risk to those you work with by continuing to work. However, they must attempt to accommodate anything less than this with things such as altered break or work schedules, ergonomic furniture, permission to work from home, etc.

Even if you cannot work at all, you are potentially entitled to an accommodation of unpaid leave. Accommodations under the PDA are required if your employer gives accommodations with similar situations to yours but that aren’t pregnant. Accommodations under the ADA are given due to pregnancy related medical conditions.

Either way, you need to ask your employer for an accommodation before they must give it to you. It also important to note that your employer cannot fire you or move you to a different position based on a belief that your work would be a threat to you or your pregnancy as opposed to your coworkers.

The PDA and the ADA also forbid harassment based on pregnancy or a pregnancy related medical condition. Employers are required to put a stop to any such harassment you report to them or they become aware of.

Massachusetts’ Pregnant Workers Fairness Act

The new Massachusetts act goes beyond the provisions of the ADA and the PDA. It targets a number of hole in the federal legislation and, above all else, targets the issue reported nearly 10,000 times in five years–it requires employers to hire women back after their maternity leave. It also has no limit on the size of the employers it applies to.

The details of the law are, as with all laws, a bit more complicated than this and covers a number of other issues. First, it forbids employers from denying a reasonable accommodation based on pregnancy or a related condition–explicitly including but limiting these accommodations to lactation and breastfeeding–unless they can demonstrate the high standard of an undue hardship caused by such an accommodation.

The law forbids retaliation for requesting accommodations by targeting their employment status, pay seniority, retirement, fringe benefits or–as discussed above–refusing to reinstate the employee in the same position with all their previous benefits. It also prevents denial of employment opportunities not just on the basis of pregnancy or pregnancy related conditions, but also denial based on the need for accommodations itself.

Employers are further not allowed to force an employee to accept an accommodation they do not desire, take a leave of absence (so long as another accommodation such as allowing breastfeeding in the workplace will do).

The act also includes a non-exclusive list of the types of accommodations Massachusetts employers will be required to provide an employee covered by the law. Accommodations under the rule can only be denied if the nature and cost of the accommodation based on the size of the business and financial resources of the employer would–taken together–show an undue burden to the employer.

The accommodation process under the new law must be a timely and interactive process. An employer cannot demand documentation for accommodations related to more frequent bathroom, food or water breaks, seating, limits on lifting over 20 lbs, or a private non-bathroom space for breast feeding.

The law requires employers to provide notice of the details of the law to employers in a handbook or similar form by April 1st of this year and give written notice of the laws to all employees hired after that date prior to or at the start of their employment. They also must give notice of the rules within 10 days of an employee notifying them of a pregnancy or related condition.

Any employer who violates any of these rules is liable for quite a bit in the way of punitive damages, attorney’s fees, back pay, front pay, and more. Suffice it to say, the new laws have quite a bit of bite behind their bark.

The Federal Pregnant Workers Fairness Act

The Massachusetts law fills in a lot of the gaps in protection at the federal level. However, it certainly looks to be inspired by a federal counterpart. In March of 2017, a New York Representative by the name of Jerrold Nadler introduced legislation with the exact same name–the Pregnant Workers Fairness Act–and very similar provisions.

Unfortunately, the federal counterpart did not receive as much traction as it did in Massachusetts. It has not yet left the house and the last action on the bill saw it referred to the House Subcommittee on the Constitution and Civil Justice in June of last year. With no other action on the bill since then, it’s fair to assume that any move on this issue at a federal level will not be here for a while–or at least take a different form.

This is unfortunate, the steps Massachusetts have taken will make a real difference for pregnant women in the workforce in that state. Even outside of Massachusetts, most of states have taken at least some steps to expand on the federal rules when it comes to pregnancy discrimination. Each state is different, and it’s important to know the rights your own state gives you. For now, they are likely the highest level of protection available to you.

Jonathan Lurie is a Founding Partner of The Law Offices of Lurie and Ferri (Contact Info). He primarily handles business law, employment law, and intellectual property issues, but works with all types of civil matters. He is a Vice-Chair of the Sports and Entertainment Interest Group of the California Intellectual Property Section and has won awards for his knowledge of intellectual property, start-up business issues, and California civil procedure. 

United Airlines barred a passenger named Dexter from flying. Dexter had a ticket and allegedly followed every required protocol, but spent six hours waiting in L.A. before being denied. Finally, Dexter’s owner, Ventiko, left the airport and drove cross-country.

Dexter is Ventiko’s emotional support peacock.

United Airlines confirmed that Dexter was barred from the plane on January 27, 201 because the peacock did not meet the airline’s guidelines, including weight and size. United claims that it had warned Ventiko three separate times before she arrived at the airport that Dexter would not be allowed onboard.

Airlines are tightening their restrictions after customers and airline attendants complained about some of the animals brought on board. United Airlines will require documentation confirming that an emotional support animal is properly trained for public settings and is healthy. Delta Airlines will require the same documentation as United, but will also require the service animal’s veterinary records.

Federal guidelines compel airlines to permit passengers with disabilities to fly with trained service animals or emotional support animals, regardless of the animal’s potential to “offend or annoy” fellow passengers. However, airlines have the flexibility to deny boarding to “unusual” service animals, such as spiders, rodents, and snakes. The deciding factor is whether the animal would pose a threat to the safety of others.

Airlines and some disability-rights advocates believe that people are using federal law to fraudulently bring pets with them on their flights. The number of passenger requests for emotional support animals increased by 15% between 2016 and 2017. 76,000 support animals flew last year, nearly double the 43,000 animals that flew in 2016. The internet allows people to easily forge false papers for their pets, even if their animals are not actually service or support animals. The sudden increases in support animals lead many in the airline industry to suspect that some of the claims were fraudulent.

Civil Liberties or Community Safety

Disability laws generally require that private and public organizations make reasonable accommodations for those with disabilities. This has often included emotional support animals. Unlike service animals, a support animal does not require special training. However, the support animal must not be a nuisance to those around it.

Department of Transportation rules actually create a lower standard than the usual disability accommodation laws. Although support animals are usually prohibit from being public nuisances, DoT guidelines only require that the animal not pose a threat to others. Simply being annoying or offending is not enough to get a support animal thrown off.

Exotic emotional support animals have mixed records on public flights. In 2015, a support turkey successfully flew from Seattle. Daniel the Comfort Duck made a few headlines in 2016, but flew without incident. On the other hand, Hobie the Support Pig had to be kicked out of a flight in 2014 because it squealed and defecated before takeoff. Whether an exotic support animal would threaten passenger safety should ultimately be decided on a case by case basis.

Tips on Getting Your Support Animal through the Airport

Anyone looking to get their support animal onto a plane should follow Daniel’s example and avoid Dexter’s controversy.  So what can we learn from each?

• Call the airline as soon as possible regarding your animal. You might need to speak with several managers to get approval and that will take time.
• Describe your disability and how your support animal helps you with your disability. If the law requires accommodation of a disability, you must prove that you qualify for such accommodation.
• Make sure your animal is either well-trained or you have an excellent method to dispose of its waste. Daniel the Duck wore a diaper at all times and was allowed to fly. Hobie the Pig was kicked out partly because it used the restroom everywhere.
• Have all your paperwork done prior to the flight. Different airlines have different requirements. You should know what paperwork your airline requires and submit all of the documents prior to the day of boarding.

Volvo just settled an Equal Employment Opportunity Commission (EEOC) lawsuit alleging Americans With Disabilities Act (ADA) violations to the tune of $70,000 after they refused to hire a man over his medically prescribed suboxone as part of his recovery process from opioid addiction. It may come as a surprise to some, but it is well established rule that addiction–both to drugs and alcohol–count as a disability under the ADA.

The rules are a bit more complicated than the usual ADA rules, but courts have generally been in agreement that failure to provide appropriate accommodations to those recovering from addiction before taking negative employment action (or even offering a job) can be disability discrimination under the Act. But there’s more to the exact extent of your duties as an employer or your rights as an employee than usual when it comes to addiction. To understand these rules, let’s look at Volvo’s situation, the basic ADA rules, and the rules when it comes to addiction.

Volvo’s Lawsuit and Settlement

The cause of Volvo’s legal woes was a conditional job offer for a laborer position made to an otherwise qualified applicant by the name of Michael Files back in early 2015. The condition was that Files submit to a post-offer physical examination. At this examination, Files disclosed to the nurse that he was taking medically prescribed suboxone as part of his road to recovery from former addiction.

It had been five years since Files had used any drugs–he had been a suboxone-assisted recovery program since 2010. However, the nurse told him that Volvo considered the use of suboxone on the same level or worse than using heroin. When Files showed up to start his job, Volvo’s HR department told him that they wouldn’t hire him because of his suboxone use.

This was the source of their EEOC issues, the ADA requires employees to make hiring decisions (and firing/promotion decisions) based on the qualifications of an applicant as opposed to any disability–including qualified situations where a former addict is involved with a medically supervised treatment program.

Where an ADA qualified disability comes up, the employer must explore reasonable accommodations for the employee or would be employee. This doesn’t mean an employer needs to bankrupt themselves, but they at least need to explore ways to make accommodate the disability.

So long as it isn’t extremely prohibitively expensive, and the disability doesn’t render the person incapable of performing the job the employer must provide these accommodations and consider only the applicants qualifications.

Volvo didn’t investigate the program, or individualized accommodations, whatsoever. It’s also unlikely that the suboxone program would have rendered Files incapable of manual labor. This meant that this would have been a bit of an uphill legal battle or Volvo. Thus, the settlement is not a huge surprise to avoid a costly legal struggle in court.

Besides the $70,000, the Volvo settlement includes a consent decree for the next three-years which bars Volvo from violating the ADA in the future. This is obviously a bit of an odd provision from the outside, obviously Volvo doesn’t want more lawsuits and promising not the break the law could seem a little silly, however it means that Volvo will be held more easily accountable for ADA violations soon.

Volvo is also required under the settlement to amend its policy on post-offer medical and drug evaluations to conform with the ADA. provide ADA training to its STAFF and distribute information to its employees on their ADA rights. Finally, Volvo will need to report to the EEOC on its handling of future complaints regarding ADA violations.

As mentioned, it’s no surprise Volvo settled. The only real remaining issue to discuss in their case with the evidence at hand were the complicated issues of addiction under the ADA. Even with this in mind, it seems likely that the expense of litigating a case with a poor chance of success wasn’t worth it to Volvo. Let’s look at how addiction works under the ADA to understand the thought process of Volvo here.

Addiction and the ADA

There’s a bit of a push and pull when it comes to drug and alcohol use and the ADA. The ADA explicitly allows employers to ensure that they comply with federal laws regulating drug and alcohol use and keep their workplace free of illegal use of drugs and alcohol–including through drug testing. State by state, the rules get a bit more complicated for marijuana. However, at a federal level the ADA also treats addiction as a disability and provides protection to recovering drug addicts and alcoholics.

First and foremost, the ADA does not protect current use of illegal drugs. If this is the case, the addiction does not count as a disability. However, if the person was formerly addicted to drugs but is currently rehabilitated–holding this against them in an employment action violates the ADA. A current user under the ADA is anybody using drugs at the time of the decision–whether casually or as a serious addiction.

The law defines a current user as anybody who has used an illegal drug recently enough to justify an employer’ reasonable belief that there is an ongoing drug issue. Some guidelines for situations when this may be the case include positive drug test results, however the exact definition will be based on the situation at hand–the person and type of drugs involved–and can vary from one to weeks.

In a very few examples, with the right facts and history of repeated relapses courts have even allowed for current use to stretch back as far as months. It’s also worth noting that a former casual user of drugs or alcohol is not protected by the ADA–only those who have suffered addiction.

A qualified individual under the ADA must either have been successfully rehabilitated and no longer using illegal drugs, currently in a rehabilitation program but not using, or erroneously believed to be using illegal drugs such as Mr. File’s medically prescribed rehabilitation.

Even when qualified, employers can still demand that these employees meet the same performance and conduct standards as other employees. An employee cannot enter drug rehabilitation after testing positive for illegal drugs, even the same day as the test, and receive ADA protection.

Common accommodations for qualified individuals under the ADA include modifying work schedules for recovery programs and allowing employees to take leave to receive treatment without punishment.

When it come to alcoholism, the ADA treats it nearly identically to drug addiction. The same types of accommodations must be extended in similar circumstances. You can still obviously prohibit alcohol at work and require employees not to show up drunk.

You also don’t have to offer rehabilitation instead of punishment for any issues at work related to alcohol–this used to be a requirement known as firm choice rules but the EEOC no longer requires it of federal employers.

An employer is also not required to provide leave to an alcoholic employee if they can establish that such treatment would be futile. Employees are further not allowed under the act to blame alcoholism related incidents on their disability when seeking ADA protection.

It is worth noting that, for both alcoholism and drug addiction, an employer is only required to provide accommodations for those who admit to their disability and request accommodations. This means, as an employee, it is important to communicate your situation if you want protection.

This obviously raises a slightly touchy real-world issue, how will an employer react to this sort of news—ADA or no. However, if you want these protections, it is important you are clear about your situation.

Pre – Employment Issues

As is clearly shown by Volvo’s case, the ADA also applies to situations during the hiring process. While an employer can ask if an applicant drinks alcohol or is currently using drugs, they are not allowed to ask if that employee is an alcoholic, addicted to drugs, or has ever been in a rehabilitation program for one of those issues.

The situation changes after a conditional offer of employment has been made, as it was to Mr. Fine. After this point, the employer is free to ask the above questions if they ask everybody. However, as seen with Volvo, you can’t disqualify and employee on that basis alone. You’re allowed to test for drugs before or after a conditional offer of employment and take action if illegal drugs are detected. On the other hand, a medical examination can only be required after a conditional job offer.

After drug testing, it is important to ensure that you are not erroneously detecting a legally prescribed drug. As mentioned above, this can lead to an ADA violation. Normally, an employer isn’t allowed to ask about prescription drugs before making a conditional offer. However, the exception to this is to follow up for explanation on a drug test that comes back positive.

How to Avoid Volvo’s Situation

As either an employee or an employer it is crucial to understand the workings of the ADA to protect your rights or your business respectively. Volvo has settled the matter and is already has steps underway, both under the settlement and otherwise, to help them avoid this sort of costly pay out in the future.

Drug addiction and alcoholism are serious diseases that have enormous impact on the lives of tens of millions of U.S. citizens. The road to recovery can be extremely difficult, even with the help of a rehabilitation program. It can be even more difficult without a job to help support you through those trying times. The ADA takes this into account, along with the realities of running a business, in offering protection to those struggling with these serious issues.

Jonathan Lurie is a Founding Partner of The Law Offices of Lurie and Ferri (Contact Info). He primarily handles business law, employment law, and intellectual property issues, but works with all types of civil matters. He is a Vice-Chair of the Sports and Entertainment Interest Group of the California Intellectual Property Section and has won awards for his knowledge of intellectual property, start-up business issues, and California civil procedure. 

How much is a scalpel in the abdomen worth? Glenford Turner of Birdgeport is suing the Veterans Affairs Administration after a scalpel was discovered in his abdomen after a critical surgery for prostate cancer. Turner went into the VA hospital in West Haven, Connecticut in 2013 for surgery.

Over the next four years, he felt dizziness and severe pain where the scalpel was located. Turner finally went back to the VA in March of 2017 and an X-Ray showed there was a scalpel inside his body. Turner underwent another surgery in April to remove the tool. Doctors confirmed it was the same blade used in his previous surgery four years earlier.

In June of 2017, Turner filed a claim with the Department of Veterans Affairs under the Federal Torts Claims Act. Turner and the VA couldn’t settle Turner’s claim, so Turner’s attorney filed a medical malpractice lawsuit against the federal government after the New Year.

Turner’s Medical Malpractice Claim

The patient must prove the following to win a medical malpractice case:

• Duty – The defendant must have a legal responsibility to the plaintiff
• Breach – The defendant failed to carry out his or her responsibility in some manner
• Causation – The defendant’s failure caused the plaintiff’s injury
• Damages – The plaintiff was injured in such a way that the defendant should pay some kind of restitution to the plaintiff.

If Turner’s case relied solely on proving these elements, he would prevail, especially if there was a jury involved.

The surgeon who operated on Turner had a doctor-patient relationship with Turner. Turner relied on the doctor’s expertise, skill, and care to ensure that he made it through the operation safely.  There is no doubt that the law would not only require the doctor liable for anything that happened while Turner was being operated on, but that the doctor also had a duty to exercise care and due diligence since Turner’s life was entirely in the surgeon’s hands while Turner was unconscious. The VA is vicariously liable for the surgeon’s mistakes since the VA was employing the surgeon for the operation.

Breach and causation are often harder to prove, but the nature of the accident all but confirms that there was some kind of malpractice. The doctors who removed the scalpel have confirmed that it was the same scalpel used to remove Turner’s prostate cancer. Even without that testimony though, Turner can rely on “Res Ipsa Loquitur.”

“Res Ipsa Loquitur” is a legal doctrine that means “the thing speaks for itself.” Generally, judges and juries require evidence of breach and causation before they will believe a claim. However, there are some injuries that are clearly the result of negligence. In cases involving such self-evident injuries, the injured party does not need to prove breach or causation.

Turner has a very strong “res ipsa loquitur” case. Scalpels do not usually turn up in abdomens unless a surgeon left it inside after an operation. Even if Turner cannot name the specific surgeon or exactly when it was left behind, the scalpel inside him is obviously the result of malpractice.

Turner was very fortunate that the knife didn’t penetrate any internal organs. As it is, Turner suffered four years of pain and discomfort because of the scalpel that had been left inside. The VA owes Turner for those years of pain and suffering, as well as the cost of the x-rays, doctor visits, and the second operation to remove the blade.

Government Immunity

Although Turner would have a very high chance of prevailing if he were suing a private hospital, Turner’s case is trickier because the defendant is the United States government. Governments are typically immune to lawsuits, unless the legislature permits it. Fortunately, the Federal Torts Claims Act (FTCA) gives federal courts the power to hear cases involving torts between private citizens and the federal government if the plaintiff notifies the federal agency within two years of the injury.

The FTCA only gives the patient two years to file his or her lawsuit. There is a little grey area in Turner’s case, since the scalpel was left inside in 2013, more than two years ago. However, Turner would have no reason to suspect that his surgeon left the instrument inside him until he could get an x-ray. When Turner discovered the blade mid-2017, he immediately had it removed before the end of the summer. The statute of limitations should not start running until Turner realized he had been injured by his doctor’s malpractice.

The second barrier behind the FTCA is that only certain federal employees can be sued under it. If the doctor who operated on Turner was an independent contractor, then Turner would have to bring his case in state court against the hospital and the doctor. This is only desirable if Connecticut would pay out more money for malpractice. Turner is lucky since Connecticut does not impose any damage caps.

However, Connecticut does not enforce vicarious liability between the hospital and the physician. This means that just because the hospital employs the negligent doctor, does not mean that the hospital is responsible. The only pool of money that Turner could access in Connecticut courts would be the doctors who were careless. Although the doctor might be wealthy, it is a far smaller claim than successfully suing the federal government.