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Recent Developments in Health Law: Harvard Law & Health Care Society
Published online by Cambridge University Press: 01 January 2021
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References
References
Humphrey v. Memorial Hospitals Association, 239 F.3d 1128 (9th Cir. 2001) cert. denied, 122 S. Ct. 1592 (2002).Google Scholar
Humphrey, 239 F.3d at 1133. The Ninth Circuit decision also went to the appellant's claim under California's Fair Employment and Housing Act (FEHA).Google Scholar
Under the American with Disabilities Act (ADA), 42 U.S.C. §§ 12101–213, § 12111(9), the term “‘reasonable accommodation’ may include — (A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and (B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.”Google Scholar
According to the ADA, 42 U.S.C. § 12111(10), “‘undue hardship’ means an action requiring significant difficulty or expense, when considered in light of [such factors as]…(i) the nature and cost of the accommodation needed under this Act; (ii) the overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility; (iii) the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and (iv) the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity.”.Google Scholar
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The Department of Justice is the agency directed by Congress to issue regulations (see 42 U.S.C. § 12186(b)), to render technical assistance explaining the responsibilities of covered individuals and institutions (see 42 U.S.C. § 12206(c)), and to enforce Title III in court (see 42 U.S.C. § 12188(b)). The Equal Employment Opportunity Commission (EEOC) is authorized to issue regulations to carry out Title 1 of the ADA and to enforce it with respect to private employers (see 42 U.S.C. § 12116, § 12117 (a)).Google Scholar
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According to the Council's reading of recent Supreme Court ADA jurisprudence, the Court has held that the Department of Justice (DOJ) regulations, as issued under Congress' direction, should be accorded the highest deference (see Bragdon v. Abbott, 524 U.S. 624 (1998)).Google Scholar
The Council notes that the Supreme Court, in Sutton v. United Airlines, 527 U.S. 471 (1999), accorded considerably less value to the provisions in EEOC's ADA regulations addressing the definition of disability.Google Scholar
The Supreme Court denied Memorial's petition for certiorari, Memorial Hospitals Association v. Humphrey, 122 S. Ct. 1592 (2002) Humphrey, 239 F.3d at 1138.Google Scholar
Brief for the United States, supra note 12, at 8. Here, the government noted that the Court of Appeals did not affirm the lower court's holding of no material issue on the rejection of a leave of absence, but rather stated that “‘this factual dispute is not material to our ruling on appeal.’” Id. at 9.Google Scholar
Brief for the United States, supra note 12, at 8 (quoting Humphrey, 239 F.3d at 1137).Google Scholar
Id. (quoting Humphrey, 239 F.3d at 1139).Google Scholar
Humphrey, 239 F.3d at 1139. The Circuit Court found that Memorial was not entitled to summary judgment on the issue of whether a leave of absence was a reasonable accommodation in Humphrey's case in its “qualified individual” analysis. Id. at 1137.Google Scholar
Brief for the United States, supra note 12, at 9.Google Scholar
Id. at 10. The government points out that Memorial cited no cases adopting a per se rule in the context of an employee who has not categorically rejected a proposed accommodation. Rather, the government distinguished a Sixth Circuit case (Hankins v. The Gap, Inc., 84 F.3d 797 (6th Cir. 1996)) on a factual basis: The case presented a request for an otherwise unreasonable accommodation in the context of a generally available alternative of which the employee failed to take advantage.Google Scholar
Humphrey, in contrast, requested a reasonable accommodation that would not require going outside of generally available job benefits. Also, an Eighth Circuit case (Mole v. Buckhorn Rubber Products, Inc., 165 F.3d 1212 (8th Cir. 1999).Google Scholar
cert. denied, 528 U.S. 821 (1999)) presented no conflict again on the facts. Here, the employer made numerous good faith attempts at accommodation and the employee did not inform her employer that she needed a new accommodation.Google Scholar
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Id. at 18–19. The government recognized an intra-circuit conflict between the burden as articulated in Humphrey (holding that a leave of absence is a reasonable accommodation if it could “plausibly” permit the employee to perform essential job functions upon return, even if such performance is not likely) and the Ninth Circuit's decision in Mustafa v. Clark County School District, 157 F.3d 1169 (1998) (employing a “more probably than not” standard) It also found a conflict between Humphrey and the Eleventh Circuit's burden of proof standard in Duckett v. Dunlop Tire Corp., 120 F.3d 1222 (1997). As to the intra-circuit conflict, the government emphasized that parties to subsequent actions may urge adherence to Mustafa or seek en banc resolution. The government found review of the inter-circuit conflict premature, as only two circuits had weighed in on the burden of proof and neither did so with much analysis.Google Scholar
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The Council's statement came in response to the Court's decision in US Airways, Inc. v. Barnett, 122 S. Ct. 1516 (2002), in which the Court held “that a request for reassignment to keep an employee with a disability working would most likely be found unreasonable when it conflicts with the terms of an employer's seniority system.”Google Scholar
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“High Court Lets Stand Ninth Circuit Ruling on Hospital Duty to Explore Accommodation,” BNA's Health Law Reporter, 11, no. 16 (April 18, 2002), quoting Memorial's petition for certiorari.Google Scholar
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For the year 2001, Johnson & Johnson spent $12.0 billion on “Selling, Marketing, and Administrative” versus $3.6 billion on “Research” expenses; Pfizer spent $11.3 billion on “Selling, Informational, and Administrative” versus $4.8 billion on “R&D” expenses; Merck spent $6.2 billion on “Marketing and Administrative” versus $2.5 billion on “Research and Development” expenses; GlaxoSmithKline spent £8.4 billion on “Selling, general, and administrative” versus £2.7 billion on “Research and Development.”Google Scholar
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Pharmatrak officials were quoted as saying “[Pharmatrak] may develop products and services which collect data that, when used in conjunction with the tracking database, could enable a direct identification of certain individual visitors.” However, the officials also pointed out that Pharmatrak would not take advantage of any such information.Google Scholar
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The suit was originally filed by two plaintiffs in Federal District Court for the District of Massachusetts in August 2000, while five additional plaintiffs filed complaints in the Southern District of New York. See Schoers v. Pfizer, Nos. 00 Civ. 6121 (DAB), 00 Civ. 6122(DAB), 00 Civ. 6173(DAB), 00 Civ.6980(DAB), 00 Civ. 7954(DAB), 00 Civ. 8900(DAB), 2001 WL 64742 (S.D.N.Y. Jan. 24, 2001). In April 2001, the Judicial Panel on Multi-District Litigation ordered the New York actions transferred to Massachusetts District Court.Google Scholar
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Users can find such options under the “Preferences: Advanced” menu in Netscape Navigator, or “Internet Options: Security” in Internet Explorer. Former Pharmatrak CEO Wes Sonnenreich noted that users can control whether or not, for example, Pharmatrak could deposit a cookie on the user's computer. See O'Harrow, , supra note 9.Google Scholar
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