Delaware Employment Law Blog

The Americans With Disabilities Act Amendments Act ("ADAAA"), is giving employers another reason to pay close attention to what's happening on the Hill.  The ADA Amendments Act became effective last week with the start of the new year. The EEOC has not completed its final regulations for the new law but that doesn't mean employers aren't still obligated to comply.   

To help employers manage this new law, the Job Accommodation Network ("JAN"), has released a new publication and a resource page.  All wise employers know about the power of JAN.  JAN is a treasure trove of accommodation-related information.  If you have questions about what options there are for accommodating just about any disability, JAN is the place to look.  And JAN provides not only the answer but actually gives you direct resources for purchasing the necessary goods and services. 

The new publication is JAN's Accommodation and Compliance Series: The ADA Amendments Act of 2008 and will be periodically updated as additional information is made public.  Complementary resources on the ADAAAA is also available.  

Fact Sheets for Employing Youth with Disabilities.  The U.S. Department of Labor ("DOL"), released three new fact sheets that provide helpful information on employing young people with disabilities, including:  Tips for Parents with Children with Disabilities, What Young People with Disabilities Need to Know, and Including Talents of Young People with Disabilities.

The third is of particular interest to employers.  Published by the Office of Disability Employment Policy ("ODEP"), the four-page fact sheet provides a detailed list of references for where to find young people for both internships and for permanent placement. 

The Family Medical Leave Act (FMLA), Americans With Disabilities Act (ADA), and state worker’s compensation laws are not mutually exclusive. By qualifying for one, an employee is not automatically disqualified from the others.

For example, an employee who is hurt on the job is not necessarily ineligible for FMLA leave. He still must be an eligible employee, work for a covered employer, and have a serious health condition. If his on-the-job injury resulted in him being absent from work for two days, though, he would not qualify for FMLA because a serious health condition is defined, in part, as an illness or an injury that incapacitates the employee for more than three consecutive days.

And what about an employee who exhausts all of his FMLA leave but is still on disability leave? Can he be terminated if he fails to return to work at the end of the 12-week period? Certainly an employer can terminate an employee who fails to return to work after exhausting all available leave.

But there is another level to this question. If the employee is on disability under the company’s disability-insurance plan, his serious medical condition may very well qualify as a disability, as well, under the ADA. The ADA requires that employers make “reasonable accommodations” for qualified employees. The U.S. Equal Employment Opportunity Commission (EEOC), and the courts have taken the position that an accommodation may take the form of a modified work schedule, flexible leave policy, or even just additional time off.

Whenever faced with a decision about whether to terminate an employee who is about to exhaust all of his FMLA time but is not expected to return to work, be sure to consider whether the ADA is applicable and what is required if it is.

For more information on legal compliance with the FMLA and ADA, see the posts in the HR Summer School category, which covers these topics in a comprehensive and no-nonsense style.

More employers are recognizing the value in recruiting, hiring, and retaining our nation's veterans.  There are important reasons to employ returning service members, including those with disabilities and combat-related injuries, especially Traumatic Brain Injury (TBI) and Post-Traumatic Stress Disorder (PTSD). 

The U.S. Department of Labor (DOL), in conjunction with the Office of Disability Employment Policy (ODEP), and the Hire Vets First initiative, have instituted a program designed to support the successful employment of returning service members with TBI and PTSD.  The program, America's Heroes at Work, is targeted to employers and provides a variety of helpful information and tools to assist in the reemployment process.  This Tuesday, November 11, Veteran's Day 2008, remember those who served for our country and honor those who returned from service by visiting the America's Heroes at Work website to learn more about this special initiative. 

October is National Work and Family Month.  October is also National Disability Employment Awareness Month (NDEAM).  In 1988, Congress expanded what previously was National Employ the Handicapped Week, which was first initiated in 1945, and later renamed in 1962.  Department of Labor (DOL), Secretary Chao reminds citizens that the DOL's Office of Disability Employment Policy (ODEP), "leads the nation's activities and produces materials to increase the public's awareness of the contributions and skills of American workers with disabilities."  The ODEP's website is a fantastic reference point for employers with links to a number of resources for a variety of employment-related disability needs. This is a great opportunity to take a look at our own internal practices and reevaluate what our organizations are doing to eradicate the workplace of false perceptions about persons with disabilities.

Need a refresher in the requirements of the Americans With Disabilities Act (ADA)?  See our prior posts in the HR Summer School Series, ADA 101, which covers the basics of the ADA.

The ADA Amendments Act (ADAAA), are now law.  The Act expands the definition of "disability" under the Americans With Disabilities Act. (ADA)  This is a reversal from the courts' recent inclination to narrowly interpret the ADA's coverage.  That trend, which has been positive for employers, began with a string of U.S. Supreme Court decisions starting in 1999. It seems, though, that the trend will end on January 1, 2009, when the ADAAA takes effect.

Under the ADAAA, the definition of “disability” will be expanded with the addition of several new rules of construction, including:

• the term must be construed in favor of broad coverage of individuals; 
• an impairment need only substantially limit one major life activity; 
• episodic impairments or impairments that are in remission are considered disabilities, so long as the impairment would substantially limit a major life activity when active; and 
• the availability of mitigation measures, such as medication or treatment, is no longer relevant to the determination of whether an impairment substantially limits a major life activity.

The ADAAA also provides an extensive list of the tasks that are to be considered “major life activities.”  The list includes physical tasks such as walking, standing, and lifting; mental tasks such as learning, reading, and thinking; and even the operation of major bodily functions, such as immune system functions, cell growth, and reproductive functions.

Finally,the ADAAA eliminates a previously available defense in "regarded-as" cases.  Prior to the amendments, an employer could defend itself in a "regarded-as" case on the ground that the employee was regarded as having an impairment but not an impairment that qualified as a disability.  In other words, if an employee was terminated because his supervisor regarded him as having strep throat, there would be no ADA violation because the employee was not regarded as having a disability (assuming strep throat wouldn't qualify). 

If you want to learn more about the ADAAA and its potential impact, HR Hero will be hosting an audioconference by Jonathon R. Mook on Thursday, October 30, 2008.  Registration information is available on HRhero.com at the seminar's web page, ADA Amendments Act Takes Effect Jan. 1.

The Americans With Disabilities Act (ADA), protects qualified individuals with a disability.  What is and is not a disability has been the subject of much discussion since the recent passage of the ADA Amendments Act of 2008.  The status of HIV as a recognized disability under the ADA, though, is not likely to be impacted--it has long been settled that a person with HIV/AIDS is protected by the statute.  In fact, we were reminded of this in July when we reported that the EEOC had filed suit against a weight-loss clinic in Pennsylvania, alleging that the clinic had wrongfully terminated an employee for having AIDS. 

The EEOC has filed another AIDS-based lawsuit under the ADA.  This time, the suit is against the Chesapeake Academy, a private school in Anne Arundel, Maryland.  In its suit, the EEOC alleges that the second-grade teacher, Chauncey Stevenson, was terminated when he told the school he was infected with the disease.  The Baltimore Sun reports that Stevenson had been given good performance reviews for the years of his employment but his contract was not renewed for the 2006-2007 school year.  Stevenson then filed a Charge of Discrimination with the EEOC. When settlement negotiations with the school failed, the Commission filed suit on Stevenson's behalf. 

The Americans With Disabilities Act (ADA), is about to undergo a major change.  The changes are thanks to the Congress' passage of the ADA Amendments Act of 2008 (ADAAA) (S. 3406, H.R. 3195) (originally the ADA Restoration Act of 2007). The new law, which will likely take effect January 1, 2009 will broaden the definition of “disability” so that more physical and mental impairments are covered.

The Americans with Disabilities Act of 1990 (signed into law by President George H. W. Bush) was intended to “provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” Just as other civil rights laws prohibit entities from basing decisions on characteristics like race or sex, the ADA prevents employers from making decisions based on disability. Recent U.S. Supreme Court decisions (e.g., Sutton v. United Airlines) narrowed the definition of disability such that people with conditions such as epilepsy, muscular dystrophy, cancer, diabetes, and cerebral palsy have been determined to not meet the definition of disability under the ADA.

Election 2008 and the ADAAA

Senators Obama, Biden, and McCain are all co-sponsors of the ADAAA, (click each candidate's name to read their individual platforms on the ADA).  For employers, the ADAAA does not bring good news.  The law will result in increased litigation, and the focus of any future dispute will shift from whether an employee has a qualifying disability to whether the employer engaged in a discriminatory act.

HR Summer School's Back-to-Basics Series is back, after a brief vacation.  This segment, ADA 104, covers the certification issues that commonly arise when an employee with a disability requests a reasonable accommodation.  As always, Course Materials are provided for your reference.

I. When May Certification Be Required?

The issue of certification arises most often when the individual first requests an accommodation. On a broad level, employers may ask employees for documentation to support the reasonableness of the request. The EEOC has explained that an employer may require documentation “to establish that a person has an ADA disability, and that the disability necessitates a reasonable accommodation.” In short, when the disability or the need for accommodation is not obvious, the employer may ask the individual for reasonable documentation about the claimed disability and functional limitations.

A. What Is “Reasonable Documentation”?

“Reasonable documentation” means that the employer may require only the documentation that is needed to establish that a person has an ADA disability, and that the disability necessitates a reasonable accommodation. This means that an employer may not ask for documentation that is unrelated to determining the existence of a disability and the need for an accommodation.

In most situations, an employer cannot request a person’s complete medical records because they are likely to contain information unrelated to the disability at issue and the need for accommodation. If an individual has more than one disability, an employer can request information pertaining only to the disability that requires a reasonable accommodation.

B. Who Is an “Appropriate Professional”?

The appropriate professional in any particular situation will depend on the disability and the type of functional limitation it imposes. Appropriate professionals include, but are not limited to, doctors (including psychiatrists), psychologists, nurses, physical therapists, occupational therapists, speech therapists, vocational rehabilitation specialists, and licensed mental health professionals.

C. What Types of Information Should Be Requested?

In requesting documentation, employers should specify what types of information they are seeking regarding the disability, its functional limitations, and the need for reasonable accommodation. The individual can be asked to sign a limited release allowing the employer to submit a list of specific questions to the health care professional. The employee may be asked to sign a limited release allowing the employer to submit a list of specific questions to the employee’s health-care professional.

D. What If the Employee Refuses to Provide Documentation?

An employee who refuses to provide the reasonable documentation requested by the employer will not be entitled to reasonable accommodation. On the other hand, failure by the employer to initiate or participate in an informal dialogue with the individual after receiving a request for reasonable accommodation could result in liability for failure to provide a reasonable accommodation. The employee’s desire to retain a level of privacy concerning his disability does not trump an employer’s need for sufficient information. The failure of an employee to provide this information releases the employer from responsibility for knowing information about the disability and providing a reasonable accommodation.

An employer will not be liable where it attempts to interact and the employee refuses to participate or withholds essential information. The employee’s failure to respond to his employer’s repeated requests for documentation concerning his ability to return to work will obviate the employer’s duty to consider the requested accommodation.

Similarly, the employer will not be liable where the employee fails to update his medical records. This may require the employee to return to his health-care provider for an updated evaluation.

But, employers should proceed with caution in requesting documentation. The employer should explain why the documentation is insufficient, allow the employee to provide the information that is missing, and pay all costs associated with any mandated visits.

II. Who Chooses the Health-Care Provider?

The ADA does not prevent an employer from requiring an individual to go to an appropriate health professional of the employer’s choice if the individual provides insufficient information from his treating physician (or other health care professional) to substantiate that he has an ADA disability and needs a reasonable accommodation. If the documentation provided is insufficient, the employer should explain deficiency and allow the individual an opportunity to provide the missing information in a timely manner. Documentation is insufficient if it does not specify the existence of an ADA disability and explain the need for reasonable accommodation.

Any medical examination conducted by the employer’s health professional must be job-related and consistent with business necessity. This means that the examination must be limited to determining the existence of an ADA disability and the functional limitations that require reasonable accommodation. If an employer requires an employee to go to a health professional of the employer’s choice, the employer must pay all costs associated with the visit(s).

III. When May Certification Not Be Required?

An employer cannot ask for documentation when: (1) both the disability and the need for reasonable accommodation are obvious, or (2) the individual has already provided the employer with sufficient information to substantiate that he has an ADA disability and needs the reasonable accommodation requested.

Prior Summer School Sessions:

ADA 101:  Who Is Covered?

ADA 102: What Does the ADA Require?

ADA 103: Reasonable Accommodation (part I)

ADA 103: Reasonable Accommodation (part II)

The HR Summer School Back-to-Back Series continues today with the second of two parts of ADA 103. Reasonable accommodations under the Americans With Disabilities Act (ADA), are not easy to manage. To make sure this difficult topic gets adequate coverage, we've split this class into two parts. The outline includes both parts and is provided for your later reference.

III. THE INTERACTIVE PROCESS

The request is the first step in an informal, interactive process between the individual and the employer. In some instances, before addressing the merits of the request, the employer needs to determine if the condition qualifies as a disability under the ADA.

A. PURPOSE OF THE INTERACTIVE PROCESS

The purpose of the interactive process is to clarify what the individual needs and to identify the appropriate accommodation. The employer may ask relevant questions to enable it to make an informed decision. 

The end goal during this process is for the employer to learn what obstacles the employee is facing as a result of his or her disability and then try to craft an accommodation to address those obstacles. Often, the nature of the disability is not relevant to the discussion.

B. WHO MAY CHOOSE THE ACCOMMODATION

The employer may choose the least expensive or burdesome accommodation where more than one exist. As long as it is effective, the employer has the final word on selection. Of course, the employee cannot be required to accept the accommodation if he or she does not want it. But, at the same time, where an employee needs a reasoanble accommodation to peform an essential function of the job or to elminate a direct threat, and reufses to accept an effective accommodation, he or she may not be qualified to remain on the job.

IV. UNDUE HARDSHIP
The only legal limitation on an employer’s obligation to provide an accommodation under the ADA
is when it would cause “undue hardship” to the employer. This is a much higher standard than the
standard appied to requests for religious accommodations made under Title VII.

“Undue hardship” means signficant difficulty or expense. The inquiry focues on the resources and
circumstances of the particular employer as compared to the cost or difficulty of providing the
accommodation.

This term refers not only to financial difficulty, but also to requests that are unduly extensive,
substantial, or disruptive, or those that would fundamentally alter the nature or the operation of
the business. The determination is made on a case‐by‐case basis.

V.  EXAMPLES

EXAMPLE OF THE INTERACTIVE PROCESS
A. FACTS
The employee works as a cashier at a retail grocer. The employee tells her employer that she has a disability that makes her tire easily and requests that she be given two additional 15‐minute breaks per shift to rest. The employee has Lupus but does not reveal this to the employer.
B. INTERACTIVE PROCESS
The request does not sound terribly unreasonable and the employer may be inclined to grant it. But, before concluding whether that this is the appropriate decision, the employer should first engage in the interactive process in an informal discussion with the employee. What the employer needs to know is what obstacles the employee is trying to eliminate. Here, the obstacle is that she becomes fatigued easily. Additional rest breaks may be a reasonable accommodation but there may be others, as well. For example, what if the emloyer offered to provide the emloyee with a stool so she could avoid standing throughout the shift? If the employee agreed that this would help eliminate the obstacle, then it is a reasonable accommodation.

Also, note that the employer never needed to inquire about the exact nature of the disability because the obstacle is all that mattered to the discussion. For example, an employee who works as a cashier tells her employer that she has a disabiltiy that reuqires an accommodation. She  requests that she be given two additional 15‐minute breaks each shift because her disability causes her to become easily fatigued.

B.  EXAMPLES OF COMMONLY REQUESTED ACCOMMODATIONS
 Making existing facilities accessible; i.e., building a wheelchair accessible ramp between two rooms that are adjoined by two stairs.

 Job restructuring; i.e., reallocating marginal job functions that are not necessary to the position but are preventing the employee from performing that job.

 Part‐time or modified work schedules; i.e., allowing an employee to take 45‐minute
breaks to recover from nausea triggered by medication.

 Acquiring or modifying equipment; i.e., providing an assistive listening device to the
employee’s telephone.

 Changing tests, training materials, or policies; i.e., permitting an employee with insulin‐dependent diabetes to eat when needed to adjust her blood‐sugar level despite a policy that employees are not permitted to eat or drink at their workstation.

 Providing qualified readers or interpreters. 

 Reassignment to a vacant position. This is the accommodation of last resort and is
only required where it is first determined that (1) there are no effective accommodations that will enable the employee to perform the essential functions of his current position, or (2) all other reasonable accommodations would impose an undue hardship. The employee must be “qualified” for the new position but he does not need to be the best‐qualified individual for the position in order to obtain it as a reassignment.

C. EXAMPLES OF ACCOMMODATIONS NOT REQUIRED
 An employer does not have to eliminate an essential function; i.e., a fundamental duty of the position.

 An employer does not have to lower production standards—whether quality‐related or quantity‐related—that are applied uniformly to employees with and without disabilities.

 An employer does not have to provide personal‐use items needed to accomplish daily activities both on and off the job. For example, an employer is not required to provide an employee with a prosthetic limb, a wheelchair, glasses, hearing aids, or similar devices if they are also needed off the job.

The HR Summer School Back-to-Back Series continues today with the first of two parts of ADA 103. Reasonable accommodations under the Americans With Disabilities Act (ADA), are not easy to manage. To make sure this difficult topic gets adequate coverage, we're splitting this class into two parts. The outline includes both parts and is provided for your later reference.

I. General Principles

The ADA requires an employer to provide reasonable accommodation to qualified individuals with disabilities, except when such accommodations would cause an undue hardship. In general, an accommodation is any change in the work environment or in the way things are customarily done that enables the individual to obtain equal employment opportunities.

A. Three categories of “reasonable accommodations”

· Modifications or adjustments to the job-application process;

· Modifications or adjustments to the work environment, or to the manner or circumstances under which the position is normally performed; or

· Modifications or adjustments that enable a covered entity’s employee to enjoy the benefits and privileges of employment.

B. Two types of workplace barriers that can be addressed

· Physical obstacles, such as inaccessible facilities or equipment; or

· Procedures or rules, such as rules about when work is performed or when breaks are taken.

II. Employee Must Request Accommodation

In general, it is the empoyee’s obligation to notify the employer that an accommodation is needed. Either the employee or a representative “must let the employer know that he or she needs an adjustment or change at work for a reason related to a medical condition.”

A. Form of the Request

No particular form or phrase is required. The request need not use the phrase “reasonable accommodation” and it need not mention the ADA.

The request does not need to be in writing. The request may be made in conversation. But the employer is well advised to confirm the individual’s request in a letter or memo. Alternatively, the employer may ask the individual to fill out a form or submit the request in writing—but cannot ignore the first request.

B. When a Request May Be Made

The individual may request a reasonable accommodation at any time during the application process or during employment. By not requesting an accommodation at the time of hiring, the employee is not later barred from making a request.

An employer should respond to the request as expeditiously as possible. The interactive process, discussed in the second part of this topic, should also be moved along as quickly as reasonably possible. Unnecessary delays may violate the ADA.

Prior HR Summer School Posts:

ADA 102: What Does the ADA Require

Calling All Students, School Is Now In Session! ADA 101

With all the buzz about alternative work schedules, four-day work weeks, flextime, and the like, the following Q & A on telecommuting as a reasonable accommodation under the Americans With Disabilities Act ("ADA") might be relevant as these types of requests increase.

Is telecommuting a reasonable accommodation under the ADA?

Q: One of our employees has asked that we allow him to work from home as an accommodation for a medical condition. He does suffer from a medical condition covered by the ADA but are we required to allow him to work from home as a possible accommodation?

 
Your question involves certain "assumptions" that are relevant to our response. For example, you said the employee does in fact have a medical condition that qualifies as a "disability" under the ADA. Our response is based on that assumption being true.

Can telework be an accommodation under the ADA?  Telework — that is, allowing employees to work from home — may qualify as a reasonable accommodation under the ADA.  Although the law doesn't require you to offer telework to your employees, you may provide it as an accommodation if it's appropriate for this employee, regardless of whether other employees without disabilities have the opportunity to work from home.
Is telework appropriate in this case?  You and your employee should discuss the appropriateness of telecommuting as an accommodation.  Generally, that interactive process begins when the employee communicates that he has a condition requiring a change in the way he performs his job. It's important to note that he doesn't have to use words like "accommodation" or even "disability" for the ADA to come into play. He merely needs to provide information that gives you a reasonable basis for making further inquiries about necessary accommodations.

After the employee provides you with notice of his need for accommodation and telecommuting becomes an option, he needs to explain why telework is an accommodation that makes sense in his situation. During that discussion, you may request information about his medical condition, including documentation that substantiates his need for an accommodation.
Is it reasonable to allow telecommuting? The possibility of telecommuting is really no different from other accommodations. You should evaluate the employee's job and review all of its essential functions. If some of those functions can be performed from home, it may be reasonable to permit telecommuting as an accommodation. If none of the job functions can be successfully completed from home, then you are not obligated to allow the employee to telecommute.

Factors you might look at when making your decision include whether:

• face-to-face interaction and coordination of work with other employees is essential;

• in-person interaction with outside colleagues, clients, or customers is necessary; and

• the job requires the employee to have immediate access to documents or other information that's located only at the workplace.

If the legitimate answer to these questions is "yes," telecommuting may not be appropriate as an accommodation.  But if elements of the job can be performed at home and don't require the type of interaction that occurs only in the workplace,  you should consider telework as a form of reasonable accommodation under the ADA.

Recent posts that may be similarly helpful include:

Calling All Students, School Is Now In Session! ADA 101

ADA 102: What Does the ADA Require

New Employer & Workplace Study on Flexible Schedules

Alternative Work Arrangement May Soon Become Mandatory

Utah's Mandatory 4-Day Work Week Will Save the World. Sort of.

I Hate To Say "I Told You So"--The 4-Day Workweek Is a Hot Topic

The Americans with Disabilities Act (ADA) protects persons with HIV/AIDS.  And that's been the case for at least 15 years. (See the DOJ's Informal Discussion Ltr. on HIV Discrimination and the ADA, dated March 2,1993).  But maybe no one told this to the Medical Weight Loss Clinic, which, according to the Department of Justice (DOJ), refused service to a prospective client because she is HIV positive.  The Medical Weight Loss Clinic had to find this out the hard way after the DOJ filed suit on behalf of the potential patient, alleging the Illinois-based business failed to comply with its obligations to provide equal access to public accommodations.

Although we deal with the ADA mostly in the employment context, it's implications are much broader reaching.  The ADA guarantees equal opportunity for individuals with disabilities in public
accommodations, employment, transportation, State and local government services, and telecommunications.  Although the EEOC has administrative authority over disability claims in employment, the DOJ handles cases like this, where the claim involves discriminatory denial of public accommodations. 

As the DOJ's 1993 letter (above) explains, gymnasiums, health spas, and other places of recreation are all public accommodations and, therefore, required to provide equal access to persons with disabilities.  The exception to this requirement is when an individual poses a direct threat to others.  But the direct-threat conclusion cannot be reached by relying on generalizations or stereotypes--that would be discrimination--the same kind the ADA is designed to prevent.  Instead, such a conclusion must rely on current medical evidence.  A person with HIV or AIDS does not pose a serious risk of exposure through casual contact. 

As part of the settlement, the Medical Weight Loss Clinic will be provided to provide training on nondiscriminatory practices.  Maybe it should also consider providing its personnel with access to modern medical data on HIV and other traditionally stigmatized conditions to help prevent unfounded biases from leading to future litigation against the company.
 

For additional information, see:

The Delaware Employment Law Blog's HR Summer School: ADA 101, and ADA 102

A comprehensive Q & A bulletin on HIV/AIDS as a protected class under the ADA is available at the ada.gov website. 

This is the second installment of HR Summer School.  Over the next several weeks, we'll be reviewing the three employment laws that are the most difficult to apply--the Americans With Disabilities Act (ADA), the Fair Labor Standards Act (FLSA), and the Family Medical Leave Act (FMLA).  For details on the topics to be covered, see the Course Catalog. 

ADA 102, part of the HR Summer School's Back-to-Basics Program, reviews what the Americans With Disabilities Act requires of employers.  Course materials are attached for your reference. 

The Americans with Disabilities Act of 1990 (“ADA”), makes it unlawful for an employer to discriminate against a qualified individual with a disability. The ADA also outlaws discrimination against individuals with disabilities in the provision of State and local government services, public accommodations, transportation and telecommunications. This outline is limited to the employment context.

The ADA Applies to All “Employment Practices”

This means that any decision relating to employment must be made without violating the ADA. Some of the most common “employment practices” include:

The Three Types of Discrimination

1. Discrimination in Employment Practices

Employers may not make employment-related decisions because of a disability.

2. Retaliation

Employers may not retaliate against an applicant or employee for asserting his rights under the ADA.

3. Associational Discrimination

Employers may not discriminate against an applicant or employee because he associates with someone disabled.

Pre-Employment Inquiries and Medical Exams

An employer may ask “disability-related questions” and require medical exams only after the applicant has been given a conditional job offer.

1. Before an Offer Is Given, An Employer May:

• Ask about the applicant’s ability to perform specific job functions.
• Ask about the applicant’s non-medical qualifications and skills.
• Ask about how the applicant to describe how he would perform job tasks.

2. Once a Conditional Offer Is Made, An Employer May:

• Ask disability-related questions and require medical exams but only if this is done for all entering employees in that job category.

3. If the Offer Is Revoked, the Employer Must Show:

• That the disability-related reason is job-related and consistent with business necessity; or
• That the employee poses a “direct threat” of substantial harm to himself or to others and the risk cannot be reduced through a reasonable accommodation.

Pre-Offer Disability-Related Questions

1. What Is a “Disability-Related” Question?

A “disability-related question” is a question that is likely to elicit information about a disability. This includes directly asking an applicant whether he has a particular disability. It also means that an employer cannot ask questions that are closely related to a disability.

2. What If the Applicant Has an Obvious Disability?

If an applicant with no known disability interviews for a job, the employer may not ask whether the applicant will need an accommodation to perform the job.

But when an employer could reasonably believe that an applicant will need reasonable accommodation, the employer may ask the applicant certain limited questions, including whether he needs reasonable accommodation and what type of accommodation would be needed to perform the functions of the job.

This is permissible in three circumstances:

• If the applicant voluntarily discloses a hidden disability;
• The employer reasonably believes an accommodation will be needed because of an obvious disability; or
• The applicant voluntarily discloses that he needs a reasonable accommodation

HR Summer School has officially begun.  As promised, over the next several weeks, we'll be reviewing the three employment laws that are the most difficult to apply--the Americans With Disabilities Act (ADA), the Fair Labor Standards Act (FLSA), and the Family Medical Leave Act (FMLA).  For details on the topics to be covered, see the Course Catalog. 

ADA 101, part of the HR Summer School's Back-to-Basics Program, reviews who is covered by the Americans With Disabilities Act.  Course materials are attached for your reference. 

Part 1. Employers Covered By the ADA. 

The easiest way to put it is this:  every employer is subject to the ADA's regulations except the federal government, federal contractors, and corporations owned by the United States; Indian tribes; and bona fide membership clubs.  The federal government agencies are covered, instead, by the Rehabilitation Act of 1973.

Part 2. Employees Covered by the ADA.

A qualified individual with a disability is protected under the ADA. 

A. Qualified. A disabled individual is Qualified where she can:

1. "Perform the essential functions of the job."

· The essential functions of the job are the fundamental duties actually performed by incumbents.

· The first step in determining whether a job requirement is essential is whether the employer actually requires all employees in that position to perform the allegedly essential function.

· To be considered qualified, a disabled individual must meet the requisite skill, education, experience, and other job-related requirements of the position.

· Job descriptions are relevant but not conclusive in determining the essential functions of the job.

2. "with or without a reasonable accommodation" 

· To be covered in ADA 103

B. "With a Disability.” A disability is:

1. A physical or mental impairment

A mental impairment under the ADA is "any mental or psychological disorder, such as emotional or mental illness."  Major depression, bipolar disorder, schizophrenia, and personality disorders are covered conditions.  Most mental disorders contained in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders are covered.  Certain anxiety disorders also may constitute an impairment. Job stress generally is not considered to constitute a mental impairment under the ADA. 

A disability does not include: (1) The current use of illegal drugs or alcohol at the workplace; (2) Homosexuality, Bisexuality, Transvestitism; or Pedophilia; (3) Compulsive gambling; or (4) Kleptomania

2. that substantially limits

Whether an individual is substantially limited in a major life activity turns on the nature, severity, and duration of the impairment. The individual must be significantly restricted in a class or broad range of jobs. 

Temporary impairments are not covered.  If a mental impairment is only temporary and non-chronic is not considered to "substantially limit" a major life activity.  But chronic or episodic conditions that are substantially limiting during their recurrence may qualify for coverage

The courts must consider whether the individual can correct or "mitigate" the disability.  For example, the Supreme Court held that the plaintiff's vision disorder treated with corrective lenses was not a disability under the ADA.

3. one or more major life activities.

A major life activity is a function such as "caring for oneself, performing manual tasks, walking, seeing hearing, speaking, breathing, learning, and working.  Mental and emotional processes such as thinking, concentrating, and interacting with others are major life activities."

4. A disability is also said to exist when an employee has a record of such an impairment.

Here, the individual does not have a disability as it is defined above. Instead, they have a history of having a disability and, because of that history, the employer considers him or her to be disabled.

An example of this would include an individual who has a history of cancer but the cancer is in remission. If her employer does not promote her because he’s worried that her cancer may return, she would be covered under the ADA even though she is not “disabled” in the traditional sense.

5. And a disability is also said to exist when an employee is regarded as having such an impairment.

Another non-traditional disability—the employee is not actually disabled at all. Unlike in the “record of” disability case, the employee may never have had a disability. But, for some reason, the employer mistakenly believes the employee is disabled and makes an employment decision based on that mistaken belief.

An example of this would be a job applicant with a broken leg who comes to the interview in a wheelchair. Usually, a broken leg is too temporary to qualify as a disability. But the interviewer assumes (wrongly) that the candidate is permanently wheelchair-bound. If the candidate isn’t hired because of that incorrect assumption, he would be covered under the ADA. 

C. Factors that Disqualify Individuals from Employment

1. Attendance.  Regular and consistent attendance is often an essential function of a job. [This is why job descriptions should reference attendance requirements where appropriate].

2. Employee Misconduct.  An employer may discipline or terminate an employee for misconduct, even if that misconduct was the result of a disability.

3. Direct Threat.  An employer can lawfully exclude an employee from employment if he or she poses a significant risk of substantial harm to health or safety that cannot be eliminated or reduced by a reasonable accommodation.  Significant risk must be high, not just a slightly increased, risk. A direct threat is not posed automatically because he or she operates machinery and takes medication that may decrease concentration. This must be determined on a case-by-case basis. 

The Delaware Employment Law Blog will be posting a series of "Back-to-Basics" articles over the next couple of months.  Each class in the series will focus on the basics of the covered topic.  The posts can be printed and assembled for a handy reference.

After much thought, we've selected the topics that we'll cover.  We've decided to tackle what we think are the Top 3 Toughest Topics in Employment Law, the ADA, the FMLA, and the FLSA.  These are the statutes that give our clients the biggest headaches but we're going to try to reduce the agony with the Back-to-Basic series. 

There will be several mini-topics in each course.  Generally, we expect the "schedule" to look something like this:

ADA 101

• 101  Who Is Covered?
• 102  What Does the ADA Require?
• 103  What Is a "Reasonable Accommodation"?
• 104  What Certification Can I Require?
• 105  Special Disciplinary Problems and Abuses

FMLA 101

• 101  Who Is Covered?
• 102  What Is a "Serious Medical Condition"?
• 103  Do I Have to Act If I Think an Employee May Qualify for FMLA Leave?
• 104  How Do I Handle Intermittent Leave?
• 105  Special Disciplinary Problems and Abuses

FLSA 101

• 101  What Does the FLSA Actually Cover?
• 102  What Is the Difference Between Exempt and Nonexempt?
• 103  What Types of Exemptions Are There?
• 104  How Do I Determine If My Employees Are Exempt?
• 105  Special Disciplinary Problems and Abuses

Get those pencils sharpened and we'll see you in class!

The Equal Employment Opportunity Commission (EEOC) has filed suit under the ADA against a Pittsburgh drug-treatment center.  The suit, which is brought on behalf of a former clinic employee under the Americans With Disabilities Act, alleges disability-based discrimination.  The employee, a recovering drug addict, worked full-time as a counselor at the clinic when was terminated when she tested positive for methadone in a random drug test.  

The Greenbriar Treatment Center in New Kensington, is alleged to have fired the employee despite her claim that she had a legal prescription for the methadone, which she'd been receiving through a treatment program since 2002.  She was later berated by her former boss, who told her that she "should be ashamed of herself."  The EEOC contends that the termination was unlawful discrimination against a person with a disability. 

The Americans With Disabilities Act & Illegal Drug Use

The Americans With Disabilities Act (ADA) does not protect current drug users.  But it does protect those who are in recovery for drug or alcohol abuse. 

The EEOC's Technical Assistance Manual for the ADA has the following to say about the use of illegal drugs as a disability:

Regarding Persons Currently In Recovery:

Persons addicted to drugs, but who are no longer using drugs illegally and are receiving treatment for drug addiction or who have been rehabilitated successfully, are protected by the ADA from discrimination on the basis of past drug addiction.

For example

An addict who is currently in a drug rehabilitation program and has not used drugs illegally for some time is not excluded from the protection of the ADA. This person will be protected by the ADA because s/he has a history of addiction, or if s/he is "regarded as" being addicted. Similarly, an addict who is rehabilitated or who has successfully completed a supervised rehabilitation program and is no longer illegally using drugs is not excluded from the ADA.

Regarding Persons Currently Using:

However, a person who casually used drugs illegally in the past, but did not become addicted is not an individual with a disability based on the past drug use. In order for a person to be "substantially limited" because of drug use, s/he must be addicted to the drug.

To ensure that drug use is not recurring, an employer may request evidence that an individual is participating in a drug rehabilitation program or may request the results of a drug test.

Not having seen the complaint, I'm at a bit of a loss as to what type of facts may be alleged to support the EEOC's claim.  To present a viable claim, the EEOC has to allege that the employee (1) is disabled, presumably because of her drug addiction; and (2) she suffered some adverse action, presumably the termination; and (3) Number 1 was the reason for Number 2; i.e., that she was fired because of her drug addiction. 

My initial reactions to this scenario:  What was the clinic's drug policy? I'd think it would be more comprehensive than most.  Did it address methadone?  What was the clinic's position, if any, on methadone programs as a recovery treatment?  And, of course, wasn't there a pre-employment drug test?  If so, did she test positive for methadone?  If she did, well, it seems like clinic could be in a bad spot.  If she didn't, was she still using illegal drugs?  Would that have been a piece of after-acquired evidence (i.e., falsifying drug test results, etc.) upon which the employer could have terminated her?  That would be a reason other than a "disability."

The merits of the case may also depend on how the court defines a "recovery program" as that term is used in the EEOC's Guidance, above.  It isn't clear from the EEOC's own definition whether the methadone program would qualify.

A "rehabilitation program" may include in-patient, out-patient, or employee assistance programs, or recognized self-help programs such as Narcotics Anonymous.

Source:  Post Gazette at http://www.post-gazette.com/pg/08166/889903-56.stm

Employers often bemoan the Americans With Disabilities Act (ADA), citing the law's difficult-to-understand compliance requirements. And most employment lawyers and discrimination attorneys would agree that the ADA can be more challenging in its application than, for example, Title VII, which prohibits discrimination based on race, religion, gender, national origin, or other protected characteristics. 

Whereas an employer is in "compliance" with Title VII so long as it does not take adverse employment actions against employees because of a protected characteristic, the ADA requires that employers take affirmative steps towards assisting employees who are able to perform the functions of the job but who may need a reasonable accommodation to do the job as well as other employees without a disability.

But today, most savvy employers understand the tremendous value that the ADA provides to society as a whole and are able to appreciate the law, despite what can seem like a daunting set of requirements and prohibitions that the law entails.

Wal-Mart pharmacist, Glenda Allen, was shot during a robbery at her second job. Doctors estimated her chance of survival as very poor.  But survive she did.  Doctors concluded she may never walk again.  But walk she did.  In the end, she suffered permanent injury to her spinal cord and required the use of a cane as a result of an abnormal gait caused by the shooting.

When she sought to return to work, Wal-Mart fired her.

Wal-Mart's position was that Allen could no longer do her job--with or without reasonable accommodations.  Allen was not paraplegic, though, she had at least limited mobility.

The litigation was unusually protracted--she initially filed suit in 1994.  After losing on summary judgment, Allen persisted until settling with the retail giant yesterday for $250,000. 

This case is a difficult one for me understand, at least strategically.  Granted, in 1994, the Americans With Disabilities Act (ADA), which governs accommodations employers must make for employees with disabilities, was hardly the piece of legislation that it is today. Barely 4 years old at the time, the ADA was not understood by many and feared by most. 

But today, some 14 years later, the amount of the settlement seems a pittance when compared to the legal fees that surely must have been incurred for more than a decade of litigation.  Additionally, Wal-Mart is sophisticated enough to appreciate the true value that the ADA provides to the business world by being able to offer equal employment to the disabled.  It strikes me as odd that the global mega-store would not have settled long ago, even if only to "save face" with the disabled community. 

[H/T Coral & Opal: Wal-Mart Coughs Up $250k in Pharmacy Discrimination Case]

Employers need to plan for the aging workforce—the "gray-haired demographic" is here to stay.

Aging Workforce News (AWN) talks about a newly introduced piece of legislation, the "Incentives for Older Workers Act." The proposed bill is designed to provide incentives and eliminate barriers for older Americans wishing to stay in the workforce longer, and encourage employers to recruit and retain older workers. AWN explains some of the bill's highlights:

Given the statistics on Baby Boomers in the workplace, this law could help employers deal with what Forbes.com calls the "Gray-Haired Workforce." By 2010, the number of workers aged 35 to 44--or those typically moving into upper management--will decline by 19%; the number of workers aged 45 to 54 will increase 21%; and the number of workers aged 55 to 64 will increase 52%. These statistic show that the workforce will include more and more employees aged 45 and over for several years to come. And they're not going anywhere—AARP reports that 79% of baby boomers say they have no plans to retire any time soon.

Racial discrimination is still a grim reality. Just ask Conective Energy, which has settled a suit filed by the EEOC for $1.65 million. Even in our super-modernized, uber-fast, and always-accessible culture, race-based discrimination has managed to stand its ground despite the changed landscape around it. The Conectiv case is a discouraging testament to this often invisible fact.

The Equal Employment Opportunity Commission (EEOC) filed the suit on behalf of four African-American workers against Conectiv and three subcontractors. The claimants worked at the now-defunct Bethlehem Steel site in Bethlehem, Pennsylvania. Connective was the contractor building a gas-fired power plant at the site.

The claims of race discrimination are disturbing. The workers alleged that they were subjected to racially derogatory comments such as "black men can't read or write" and "I think everyone should own one." But the harassment didn't stop with workplace commentary. There was graffiti on the site that included "I love the Ku Klux Klan" and "if u not white u not right." And, in the ultimate display of racial animus, a noose, made of heavy rope, was hung from a beam above on the of the men's work area. The noose was not removed for at least 10 days, according to the Complaint.

Conectiv will carry the heaviest payment in the settlement. It is charged with a $750,000 tab, while the other three defendant-subcontractors, will pay $450,000, $250,000, and $200,000 each. As is standard (and non-negotiable) in settling with the EEOC, the defendants must Revise and edit their anti-discrimination policies, provide anti-discrimination training, and post a notice at all job sites setting forth the basis for the suit and subsequent settlement. The consent decree also provides that it does not constitute an admission of any wrongdoing by any defendant.

Racial harassment cases at the EEOC have surged since the early 1990s from 3,075 in Fiscal Year 1991 to nearly 7,000 in FY 2007. In addition to investigating and voluntarily resolving tens of thousands of race discrimination cases out of court, the EEOC has sued more than three dozen employers this decade in racial harassment cases involving nooses.

Terrence Cook served as the Supervising Trial Attorney and Mary M. Tiernan as Program Analyst on behalf of the EEOC.

Additional Resources:

EEOC's Press Release, May 5, 2008

Philly.com, Forbes, and CNBC are each running the AP story.

As usual, Mark Toth, at the Manpower Employment Blog is on top of the latest headlines.

Pregnant Spanish Defense Minister Carme Chacon reviews troops in Madrid

* * * *
Pregnancy discrimination is making international headlines. Our friend and fellow Employers Counsel Network editor, John Phillips, posted an interesting article today on his blog, titled, "Questions About Pregnancy," regarding pregnancy discrimination and Spain’s pregnant defense minister.

See my earlier post, “More Than Hollywood Noticing Baby Bump” regarding the alarming increase in pregnancy discrimination claims.

What exactly are your obligations to a pregnant employee?

Under the Pregnancy Discrimination Act (PDA), you're prohibited from treating pregnant employees differently than other employees with temporary restrictions. For example, if a pregnant employee is restricted from lifting more than 20 pounds during her last trimester, you must treat her the same as a male employee who suffered a back injury and was temporarily unable to lift the same amount.

The PDA does not require you to make special accommodations like the Americans with Disabilities Act does. It only requires you to treat pregnant employees the same as you would treat nonpregnant employees with temporary restrictions.

What can you do to avoid violating the PDA?

Here are some basic guidelines:

• Don't discuss an applicant's pregnancy with her at the employment interview or base your hiring decisions on her pregnancy or absences that may be caused by pregnancy.

• When an employee informs you that she's pregnant, congratulate her. Don't start interrogating her about the leave she will need or make any other comments about how her pregnancy might affect her job.

• Provide optional alternative jobs if the pregnant employee's current position could be harmful to her fetus. Be aware, however, that the decision to change duties is hers, not yours.

• If a pregnant employee is unable to perform her job or requests light duty, treat her like you would any other employee in a similar situation.

• If you take any performance-related disciplinary actions during an employee's pregnancy or maternity leave, do so cautiously! Make sure to document your actions, providing legitimate non-discriminatory reasons for the action.

Of course, dealing with pregnant employees may implicate other employment laws, including the Americans with Disabilities Act, and the Family and Medical Leave Act. I will be presenting When FMLA and Pregnancy Leave Collide: How to Avoid Costly Discrimination Claims in Las Vegas and Nashville, TN at the upcoming Advanced Employment Issues Symposium. Click here for more details about the Symposiums.

The Third Circuit, which governs Delaware, New Jersey, and Pennsylvania, applied a strict interpretation of Rule 23(f) and affirmed dismissal of a class action against Johnson & Johnson. The case, Gutierrez v. Johnson & Johnson, was filed by African-American and Hispanic former J&J employees alleging race discrimination--8,600 employees in all.

The federal District Court in New Jersey declined to certify the group as a class. Notably, the court found that the group had failed to identify any J&J policy that was discriminatory. The court also cited the diversity and size of the group as factors weighing against class certification.

Now, hang in there, this is where it starts to get complicated.

The potential class could have filed an appeal with the Third Circuit after the District Court issued its decision denying certification. But, instead, they wanted to file a motion for reconsideration. J&J agreed to an extension of time for the employee to file their motion. The court granted the requested extension but eventually denied the motion for reconsideration, upholding its denial of class status.

The employee-petitioners sought permission tofile an interlocutory appeal with the Third Circuit. The petition was filed within ten days of the District Court’s denial of their motion for reconsideration but 125 days after the original decision denying class certification.

A petition to appeal must be filed within 10 days. When a motion for reconsideration is timely filed, though, the 10 day-clock stops running until the motion is decided. Here, the employee-petitioners filed their motion within the deadline set by the District Court's scheduling order. That was not enough for the Third Circuit. Instead, the court found that the 10-day requirement was mandatory--within 10 days of the decision denying class certification, the party has 10, and only 10, days within which to file an appeal.

The fact that the motion for reconsideration was timely for purposes of the District Court’s scheduling order did not matter. According to the Third Circuit, much to Johnson & Johnson's relief, Rule 23(f) of the Federal Rules of Civil Procedure is strict and mandatory.

The Society for Human Resource Management (SHRM), having come under attack by nonprofits such as The Epilepsy Foundation for its opposition to the ADA Restoration Act, has issued a statement explaining its position. In its statement, SHRM says that it supports the purpose of the ADA but is concerned that the proposed bills would expand the definition of “disability” so much that it would cover people with temporary, minor physical or mental impairments like headaches, skin irritations and sprained ankles.

Good point. Having to “reasonably accommodate” people with temporary mental or physical impairments does not seem to be what the ADA was ever intended to do.

SHRM is also worried about the provision that would shift the burden to employers to prove that an individual with a disability was not qualified for a position. Currently, the employee must prove that he or she is an “otherwise qualified individual with a disability.” SHRM says the proposed provision would hinder rather than help efforts to employ more individuals with disabilities (the SHRM statement does not explain why, however). Clearly, it is a benefit to employers not to bear the burden of proof on any legal issue.

An article in the latest issue of the CCH Workweek publication caught my attention. The article mentioned the "ADA Restoration Act" (H.R. 3195/S.1881). The Restoration Act of 2007 was introduced last July and currently is under consideration in Congress. The House Committee on Education and Labor held hearings on the bill on January 28 and 29, 2008.

The Proposed Changes

The Restoration Act would amend the ADA by deleting the current requirement that, to constitute a disability under the ADA, a physical or mental impairment must “substantially limit” the individual’s ability to perform “one or more major life activities.”

The new definition of disability would be a “physical or mental impairment,” period. And, in addition, the individual’s ability to mitigate the effects of a disability through medication or otherwise would become irrelevant.

All in Favor?

Advocates argue that the revision is necessary because the courts have taken such a narrow view of the ADA that its purpose of preventing and remedying disability discrimination has been virtually destroyed.

The U.S. Chamber of Commerce, the U.S. Department of Justice and the Society for Human Resource Management all oppose the bills, according to the American Association of People with Disabilities website.

The ADA Restoration Act may be flying under the radar due the recent changes to the FMLA but don't underestimate the impact the proposed law could have.