Articles by Our Attorneys

A common question many employers face is, “how do we respond to a workplace accommodation request under the Americans with Disabilities Act (ADA)?”  Like many legal questions, the answer starts with “it depends …”

Simply put, employers responding to accommodation requests must navigate a host of legal issues, including understanding the coverage of the ADA, how the ADA defines key terms like “disability” and “undue hardship”, and knowing how to engage in the necessary “interactive process” to address the request.  Notably, the failure to properly respond to an ADA accommodation request can lead to significant legal exposure for an employer, particularly if the employment relationship ends.  Successful plaintiffs under the ADA can recover not only back and front pay, but also compensatory and punitive damages and attorney’s fees.

The following are a few key points to consider when addressing an ADA accommodation request.

The Request

Broadly speaking, a reasonable accommodation is a modification to the work environment that an employer can reasonably implement that would allow an employee with a disability to perform the essential functions of a job, or enjoy benefits and privileges of employment that are enjoyed by similarly situated, non-disabled employees.

There is no specific form, or question, or magic phrase that an employee has to use to request an accommodation under the ADA.  An employee may request a reasonable accommodation orally or in writing, at any time, and is not even required to have a particular accommodation in mind before making the request.  Generally, all that is required is that the employer knows or has reason to know that the employee has a disability and a need for an accommodation.

Is the employer covered by the ADA or an analogous statute?

After receiving a request, the employer must consider whether it is covered by the ADA or an analogous state or local statute.  With limited exceptions, a private employer is covered under the ADA if it has 15 or more employees on its payroll.  Notably, however, state and local statutes often have narrower coverage provisions, but also prohibit discrimination based upon disability.  For example, the Pennsylvania Human Relations Act applies to Pennsylvania businesses with 4 or more employees, while the Philadelphia Fair Practices Ordinance narrows the coverage to employers with 1 or more employees.  Therefore, knowledge of the applicable law is essential to determining what action by the employer is required.

Does the employee have a “disability” protected by the ADA?

The ADA broadly defines disability as “a physical or mental impairment that substantially limits one or more major life activities of an individual (that is, an actual disability)” or “a record of this kind of impairment”. 42 U.S.C. § 12102(1).[1]  A physical impairment includes any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems (e.g. neurological, musculoskeletal, respiratory, etc.)  A mental impairment includes a mental or psychological disorder, such as an intellectual disability or emotional or mental illness. 29 C.F.R. § 1630.2(h)(1), (2).  “Major life activities” include seeing, hearing, sitting, standing, walking, lifting, bending, sleeping, breathing, thinking, and many more. 29 C.F.R. § 1630.2(i)(1)(i).  Notably, the “record of impairment” definition of disability extends ADA protections to individuals who have a history of, or who have been misclassified as having, a physical or mental impairment. 29 C.F.R. § 1630.2(k)(3)).

One of the most difficult aspects of defining a disability is the meaning of the phrase “substantially limits”.  While there is no clear definition in the ADA, the ADA Amendments Act of 2008 (ADAAA) and its regulations provide guidance on this issue.  Per these regulations, employers are to construe “substantially limits” broadly.  To qualify as a substantially limiting impairment, the impairment need not prevent, or significantly or severely restrict the individual from performing a major life activity.  Employers are to judge the ability of the individual compared to most people in the general population, and without consideration of most mitigating measures, such as hearing aids. 29 C.F.R. § 1630.2(j)(1)(i)-(ix).

Is the employee “qualified”?

The purpose of an accommodation request is to allow the requesting employee to perform certain job duties, either in their current role or in a position they are seeking.  Therefore, the individual making the request must be “qualified”, meaning the employee is able to perform the essential functions of the job with or without a reasonable accommodation, and otherwise has the skills, experience, etc. necessary for the position.  Essential functions are “fundamental job duties of the employment position the individual with a disability holds or desires”. 29 C.F.R. § 1630.2(n)(1)).

“Undue Hardship” and “Direct Threat”

An employer is not required to make an accommodation if the accommodation would impose an undue hardship on the employer.  This is a case-by-case determination, however the factors that determine undue hardship include: the nature and net cost of the accommodation, the overall financial resources of the employer, and the number of employees of the employer. 42 U.S.C. § 12111(10)(B).

In addition, certain disabilities can be considered to create a “direct threat” to the health or safety of others, which no reasonable accommodation can negate. 29 C.F.R. § 1630.2(r).  For example, an employer may not be required to accommodate an individual who suffers from dizziness or fainting spells if the only jobs available require operation of heavy machinery, since the condition could endanger the workplace.

The Interactive Process

Assuming the proper criteria are met, the next step is for the employer and employee to engage in an “interactive process”.  This is an area where difficulties often arise, as this process imposes duties on both the employer and the employee.  As stated by the Third Circuit Court of Appeals in Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 312 (3d Cir. 1999), employers and employees “have a duty to assist in the search for appropriate reasonable accommodation and to act in good faith.”  This means that both the employee and employer must engage in an “interactive process” “to work toward finding a suitable accommodation.” Id.  Employers can show their good faith compliance in a number of ways, such as: “meeting with the employee who requests an accommodation, requesting information about the condition and what limitations the employee has, asking the employee what he or she specifically wants, showing some sign of having considered the employee’s request, and offering and discussing available alternatives when the request is too burdensome.” Id. at 317.

Importantly, if an accommodation is offered and it is reasonable, the employer has satisfied its obligations, even if the proposed accommodation is not the preferred choice of the employee. See, Khoury v. Secretary United States Army, 677 Fed.Appx. 735 (3d Cir. Jan. 27, 2017) (employee is not entitled to her preferred accommodation, only a reasonable one); Diaz v. City of Philadelphia, 565 Fed.Appx. 102, 106 (3d Cir. May 2, 2014) (“The ADA does not … require an employer to provide a disabled employee with the accommodation of her choosing.”)

Examples of Accommodations

Since accommodations are judged under a “reasonableness” standard, accommodations can be as unique as the person requesting them.  However, common examples of reasonable accommodations include:

• physical changes such as installing a ramp or changing a workspace layout;
• accessible or assistive technologies such as reader software;
• accessible communications such as closed captioning at meetings;
• light-duty for certain physical demands of a job;
• modifications of work schedules;
• telecommuting; and,
• job reassignment.

For individuals with a “record of” disability, common accommodation examples include a schedule change or time off for medical follow-up or monitoring appointments with their physician.

Employer compliance: the bottom line

ADA compliance is a process.  Training of management and maintaining clear and up-to-date employment policies are critical to properly responding to an accommodation request.  Equally important is engaging in meaningful communications with any employee who requests an accommodation, as every situation is unique.  Ultimately, the proper handling of accommodation requests requires not only active participation, monitoring and documentation, but also an understanding of this constantly evolving area of the law.

[1] The ADA definition of disability also includes “being regarded as” disabled.  Individuals “regarded as” disabled are protected from discrimination under the ADA, however they are not entitled to a reasonable accommodation.

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Jeffrey P. Burke, an associate in MacElree Harvey’s West Chester office, counsels businesses and individuals on employment agreements, equal employment policies, non-competition agreements, independent contracting issues, and other employment-related matters. Jeff also represents businesses and individuals in employment discrimination litigation, such as Americans with Disability Act claims, Age Discrimination in Employment Act claims, discrimination based upon sex, race or religion, sexual harassment, and hostile work environment.

To schedule a consultation with Jeff, call (610) 840-0229 or email [email protected].

The Tax Cuts and Jobs Act of 2017 (TCJA) gave us the highest estate and gift tax basic exclusion amount in history – $10 million.  The exclusion amount, adjusted for inflation, was $11.4 million in 2019 and will rise to $11.58 million in 2020.  Married couples can double that amount if they elect to exercise “portability” on a timely filed Estate Tax Return.  The TCJA exclusion increase is temporary, however, and in 2026 the $10 million exclusion will revert back to a $5 million base.

The estate tax generally is calculated using a taxpayer’s taxable estate at death, combined with any lifetime taxable gifts.  Because the increase in the basic exclusion amount is temporary, some have wondered whether taxpayers who die after 2025 will receive the full benefit of the higher exclusion. The problem can be illustrated by the following example:

Suppose an individual taxpayer gifts $11.4 million to his child today, his only taxable gift. This gift currently would be sheltered by the heightened exclusion amount and no gift tax would be due. The taxpayer then dies in 2026 with a $4 million taxable estate. The taxpayer’s total taxable estate and lifetime gifts are $15.4 million, however, only $5 million of exclusion is now available.  This would result in a much higher estate and gift tax due than the taxpayer originally anticipated when he made the gift.

The final regulations issued by the IRS on November 26, 2019 resolve this “clawback” issue.[1]  In calculating the credit against the estate tax, the exclusion amount used is the greater of: (1) the exclusion amount at death and (2) the exclusion amount at the time the lifetime gift(s) were made.[2]  The regulations provide the following example:

An unmarried individual made cumulative taxable gifts of $9 million during his lifetime, all sheltered from gift tax by the $11.4 million basic exclusion amount on the date of the gifts.  The basic exclusion amount on the individual’s death is $6.8 million.  Because the total exclusion amount allowable on the dates of the gifts exceeds the $6.8 million exclusion amount allowable at the individual’s death, the exclusion amount for purposes of calculating the individual’s estate tax is $9 million.[3]

The regulations also ensure that a Deceased Spouse’s Unused Exclusion Amount (DSUE) will not be reduced when the exclusion amount decreases in 2026.[4]  Accordingly, if one spouse dies in 2019 and elects portability on a timely filed Estate Tax Return, that unused $11.4 million exclusion will not be lost even if the basic exclusion amount is reduced at the surviving spouse’s death.

The result is that a taxpayer can take advantage of a fluctuating estate and gift tax exclusion during his or her lifetime, and will not be subject to estate tax simply because the exclusion is lower at death.  In light of the increased exclusion amount and the recently published regulations, taxpayers should consider using their increased exclusion amount before it reverts back to $5 million in 2026.

[1] Treas. Reg. § 20.2010-1.

[2] Treas. Reg. § 20.2010-1(c).

[3] Treas. Reg. § 20.2010-1(c)(2)(i).

[4] Treas. Reg. § 20.2010-1(c)(2)(iii).

In a recent court decision, Pennsylvania joined many other states in recognizing the presumption of paternity in a same-sex marriage situation.

The presumption of paternity presumes, that if a woman gives birth during her marriage, her spouse is the other parent of the child. Historically, this presumption has been one of the stronger presumptions under the law.

Since the US Supreme Court legalized same-sex marriages several years ago, the question was opened as to the presumption of paternity in same-sex marriages.

The Pennsylvania Superior Court answered this question recently in the case of In Re A.M.   While procedurally In Re AM was a dependency case, the Superior Court did address the broader issue of whether the presumption of paternity applies to same-sex marriages. The court concluded that, since same sex-marriages are legal in Pennsylvania, same-sex couples must be afforded the same rights and protections as opposite-sex couples. Therefore, the presumption of paternity is equally applicable to same-sex marriages is as it is to opposite-sex marriages.

The legalization of same-sex marriages has raised many legal issues involving family law, estates and trust law, as well as many other areas.  At MacElree Harvey, we have many attorneys knowledgeable and ready to help answer your questions in this important emerging area of the law.

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Like the families we serve, matters of family law come in all shapes and sizes—and our Pennsylvania and Delaware Family Law attorneys are equipped to manage and resolve a variety of legal issues. Our attorneys cover all aspects of family law, from drafting prenuptial agreements before parties marry to negotiating divorce settlements when a marriage ends, as well as helping parents resolve child custody disputes. Learn more about our family law practice.

Lance Nelson of MacElree Harvey’s family law practice has over 25 years of experience representing clients in family law matters such as divorce, marital agreements, adoption, custody, and support.

On December 20, 2019, President Trump signed the Setting Every Community Up for Retirement Enhancement Act (SECURE Act), which is effective January 1, 2020. The Act is the most impactful legislation affecting retirement accounts in decades. The SECURE Act has several positive changes: It increases the required beginning date (RBD) for required minimum distributions (RMDs) from your individual retirement accounts from 70 ½ to 72 years of age, and it eliminates the age restriction for contributions to qualified retirement accounts. However, perhaps the most significant change will affect the beneficiaries of your retirement accounts: The SECURE Act requires most designated beneficiaries to withdraw the entire balance of an inherited retirement account within ten years of the account owner’s death.

The SECURE Act does provide a few exceptions to this new mandatory ten-year withdrawal rule: spouses, beneficiaries who are not more than ten years younger than the account owner, the account owner’s children who have not reached the “age of majority,” disabled individuals, and chronically ill individuals. However, proper analysis of your estate planning goals and planning for your intended beneficiaries’ circumstances are imperative to ensure your goals are accomplished and your beneficiaries are properly planned for.

Under the old law, beneficiaries of inherited retirement accounts could take distributions over their individual life expectancy. Under the SECURE Act, the shorter ten-year time frame for taking distributions will result in the acceleration of income tax due, possibly causing your beneficiaries to be bumped into a higher income tax bracket, thus receiving less of the funds contained in the retirement account than you may have originally anticipated.

Your estate planning goals likely include more than just tax considerations. You might be concerned with protecting a beneficiary’s inheritance from their creditors, future lawsuits, and a divorcing spouse. In order to protect your hard-earned retirement account and the ones you love, it is critical to act now.

Review/Amend Your Revocable Living Trust (RLT)

Depending on the value of your retirement account, we may have addressed the distribution of your accounts in your RLT, or Testamentary Trust under your Will. Your trust may have included a “conduit” provision, and, under the old law, the trustee would only distribute required minimum distributions (RMDs) to the trust beneficiaries, allowing the continued “stretch” based upon their age and life expectancy.  A conduit trust protected the account balance, and only RMDs–much smaller amounts–were vulnerable to creditors and divorcing spouses. With the SECURE Act’s passage, a conduit trust structure will no longer work because the trustee will be required to distribute the entire account balance to a beneficiary within ten years of your death. We should discuss the benefits of an “accumulation trust,” an alternative trust structure through which the trustee can take any required distributions and continue to hold them in a protected trust for your beneficiaries.

Consider Additional Trusts

For most Americans, a retirement account is the largest asset they will own when they pass away. If we have not done so already, it may be beneficial to create a trust to handle your retirement accounts. While many accounts offer simple beneficiary designation forms that allow you to name an individual or charity to receive funds when you pass away, this form alone does not take into consideration your estate planning goals and the unique circumstances of your beneficiary. A trust is a great tool to address the mandatory ten-year withdrawal rule under the new Act, providing continued protection of a beneficiary’s inheritance.

Review Intended Beneficiaries

With the changes to the laws surrounding retirement accounts, now is a great time to review and confirm your retirement account information. Whichever estate planning strategy is appropriate for you, it is important that your beneficiary designation is filled out correctly. If your intention is for the retirement account to go into a trust for a beneficiary, the trust must be properly named as the primary beneficiary. If you want the primary beneficiary to be an individual, he or she must be named. Ensure you have listed contingent beneficiaries as well.

If you have recently divorced or married, you will need to ensure the appropriate changes are made because at your death, in many cases, the plan administrator will distribute the account funds to the beneficiary listed, regardless of your relationship with the beneficiary or what your ultimate wishes might have been.

Other Strategies

Although this new law may be changing the way we think about retirement accounts, we are here and prepared to help you properly plan for your family and protect your hard-earned retirement accounts. If you are charitably inclined, now may be the perfect time to review your planning and possibly use your retirement account to fulfill these charitable desires. If you are concerned about the amount of money available to your beneficiaries and the impact that the accelerated income tax may have on the ultimate amount, we can explore different strategies with your financial and tax advisors to infuse your estate with additional cash upon your death.

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In the event you need any assistance, please contact Joseph A. Bellinghieri at 610-840-0239 or [email protected] to schedule an appointment to discuss how your estate plan and retirement accounts might be impacted by the SECURE Act.

As social media has become an integral part of our personal and professional lives, it should come as no surprise that social media is playing an increasingly important role in litigation.  A growing body of Pennsylvania court decisions is providing guidance regarding when and how litigants can obtain social media posts from an opposing party.  Simply put, social media users should very careful about what they post online because it could eventually end up on a projector screen in front of a jury.

To begin with, information posted online to a “public” social media account – that is, an account that does not require a password or pre-existing relationship to access – is not only discoverable but is almost certainly going to be viewed by an opposing party in the course of litigation.  See, e.g., Kelter v. Flanagan, 2018 WL 1439793, *1, No. 286-Civil-2017 (C.P. Monroe Co. Feb. 19, 2018 (Williamson, J.) (“there does not [] appear to be an expectation of privacy on social media as it relates to litigation because the account holder is sharing information with others in a public or quasi-public domain.”)  Indeed, one of the first things many attorneys do is perform an online search of Facebook, Twitter, Instagram, and other popular social media sites to gather information about the opposing party that may be useful in a dispute.

As such, the first step to protecting social media posts being used in court is to designate social media accounts as private.  Courts and ethics committees have consistently held that attorneys and law firms are prohibited from becoming social media “friends” with litigants in order to access the litigants’ private social media pages. See, e.g., Philadelphia Bar Ass’n Prof’l Guidance Comm., Op. 2009-02 (2009) (an attorney, or someone under the attorney’s supervision, seeking information to impeach an adverse witness, cannot friend request the witness without revealing the purpose of the communication and disclosing to the witness the attorney’s role.)

That being said, designating a Facebook profile or other social media posts as “private” does not, by itself, prevent this information from being discoverable.  Under the Pennsylvania Rules of Civil Procedure, “… a party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action…” Pa. R.C.P. 4003.1.  Moreover, Rule 4009.1 explicitly provides that a party can serve requests for electronically stored information.  Accordingly, social media posts are generally considered to fall within the broad scope of permissible discovery in Pennsylvania.  Protections against questionable discovery requests are found in Rule 4011, which prohibits discovery “sought in bad faith” or which “would cause unreasonable annoyance, embarrassment, oppression, burden or expense”.

There is currently no meaningful appellate authority on social media discovery in Pennsylvania.  Therefore, Pennsylvania trial courts have created their own tests to balance the need for discovery of relevant “private” social media posts with the parties’ privacy concerns.  Many courts have taken the position that, where a party objects to discovery of “private” social media posts under Rule 4011, the party seeking discovery must make a threshold showing that the “private” posts contain some relevant information.  As stated in Hunter v. PRRC, Inc., 2013 WL 9917150, No. 2010-SU-003400-71. (York C.P. Nov. 4, 2013) (Linebaugh, J.):

                    Where discovery has been served requesting private information contained in an account held by a party on a social media platform that the party has specifically elected to make                          private …, an objection lodged by that party to the discovery will be sustained unless the party serving the discovery makes a threshold showing that                                    otherwise available information leads to the reasonable probability that relevant information is contained within the private portions of the account. The                        hypothetical possibility that relevant or discoverable information may exist in an account held privately is not sufficient to meet this showing. Actual facts                      must be shown and, for example, can consist of public postings on the party’s Facebook page establishing that there are relevant private posts or information produced in                                     discovery that establishes that there are relevant private posts. …

Id., at *4. (emphasis added.)  See also, McMillen v. Hummingbird Speedway Inc., 2010 WL 4403285, No. 113-2010 CD (Jefferson C.P. Sep. 9, 2010) (court directed plaintiff to provide login and password information to opposing counsel because the plaintiff’s public profile indicated relevant information might be contained in the private portion showing that the plaintiff’s injuries were exaggerated); Zimmerman v. Weis Markets, Inc., 2011 WL 2065410, No. CV-09-1535 (Northumberland C.P. May 19, 2011) (Saylor, J.) (plaintiff ordered to provide defendant with all login and password information because, based upon publicly-available information, it was reasonable to infer additional relevant information was contained within the private portions); Largent v. Reed, 2011 WL 5632688, No. 2009-1823 (Franklin C.P. Nov. 8, 2011) (Walsh, J.) (after a showing that plaintiff’s recently public profile was accessed by her the night her deposition and contained posts that contradicted the plaintiff’s injury claims, the court ordered plaintiff to provide the defendant with her login and password for a period of 21 days); Kelter v. Flanagan, 2018 WL 1439793, No. 286-Civil-2017 (C.P. Monroe Co. Feb. 19, 2018 (Williamson, J.) (granting a defendant’s Motion to Compel a plaintiff to provide the defendant’s counsel with her Instagram account log-in information and holding that “social networking accounts can be discoverable, if it appears likely that they contain information that could be relevant”).

For those interested in a deep analysis of discovery of “private” Facebook posts, the 20-page opinion in Trail v. Lesko, 2012 WL 2864004, No. GD-10-017249 (Allegheny C.P. July 3, 2012) (Wettick, J.) analyzes the approaches taken in nine earlier Pennsylvania trial court decisions as well as multiple other jurisdictions.  Notably, in Trail, cross-motions to compel “private” Facebook posts were denied.  The Trail court reasoned that discovery of “private” social media posts is inherently intrusive and that the court should balance, under Rule 4011, the level of intrusion with the “potential value of the discovery” to the requesting party.  Because the “intrusions” the discovery would cause were “not offset by any showing that the discovery would assist the requesting party in presenting its case”, discovery of the “private” posts was not allowed.

In short, if you or your business has a publicly-accessible social media account, anything you say or do can be used against you in a court of law, as the saying goes.  Moreover, your “private” social media account may not be as “private” as you think.  If an opposing party can argue some facts to a judge that suggest that “private” social media posts contain relevant information, the court can order the social media posts be produced, and even require that a username and password be given to the other party’s attorney.  For anyone involved in litigation, protecting your interests and privacy in the social media age requires an in-depth understanding of this evolving area of the law.