Delaware Employment Law Blog

The Third Circuit Court of Appeals recently ruled that side effects from medical treatment may constitute an impairment under the Americans with Disabilities Act (the “ADA”). The 3d Circuit's decision in Sulima v. Tobyhanna Army Depot is clear that, under limited circumstances an employee-plaintiff may have a cause of action under the ADA if he can prove that the effects of medical treatment are truly disabling, even if the underlying condition is not.

Facts

The employee-plaintiff worked for Defense Support Services, a defense contractor which provided workers at the Tobyhanna Army Depot. The employee was morbidly obese and suffers from sleep apnea. At the time, the employee was taking weight-loss and related medications which caused him to take frequent restroom breaks. When asked about the frequent breaks, the employee told his supervisor that they were the result of his medication. He later provided his supervisor with a doctor's note, which stated that the employee may need to use the restroom frequently due to a “gastrointestinal disorder.” The employee told his supervisor that he was not sure how long he would need the medication and that he was going to find out if he could take an alternative medication.

After employee continued to take frequent restroom breaks (some days for a total of two hours during his shift), a supervisor asked that he be transferred to a different work area. When he found out about the transfer, the employee submitted another note from his treating physician, which indicated that his mediation had been changed and that he no longer needed frequent restroom breaks. The decision was made to transfer him anyway but there were no available positions at the Army Depot and the employee accepted a voluntary layoff.  He later filed a claim in federal court, alleging violations under the ADA and the Rehabilitation Act.

[read on to learn how the Third Circuit ruled. . . ]

Continue reading "Third Cir. Rules that Side Effects from Treatment May Be an ADA Impairment" »

 Colwell v. Rite Aid Corp., is an accommodation case brought under the Americans With Disabilities Act (ADA), recently decided by the Third Circuit, which hears appeals from the federal courts of Delaware, Pennsylvania, and New Jersey. Jon Hyman, at the Ohio Employer's Law Blog, was the first to post about the Colwell opinion, noting that the decision offers employers some key reminders about best practices when dealing with an employee’s request for accommodations made pursuant to the ADA.

Facts

The plaintiff, Colwell, was hired in April 2005 as a part-time clerk at one of Defendant Rite-Aid’s stores. Her schedule varied but she generally worked the 9 a.m. – 2 p.m. shift or the 5 p.m. – 9 p.m. shift. During the summer, she was diagnosed with retinal vein occlusion and glaucoma in her left eye and she later lost vision in her left eye. As a result, she could no longer drive at night.

Because she lived in an area without public transportation or taxis, Colwell had no reliable way to get to work for the evening shift. She asked to be assigned only to the day shifts but her supervisor refused, saying that it “wouldn’t be fair” to other employees. Colwell provided her supervisor with a doctor’s note as proof that she could not drive at night. Again, her supervisor declined Colwell’s request to be assigned only to day shifts. Colwell had to rely on family members to transport her to and from work on the days she was scheduled to work at night.

Colwell contacted her local union representative, who tried unsuccessfully to convince the supervisor to accommodate Colwell’s request. The union rep set up a meeting for him and Colwell to meet in person with the supervisor but he failed to show up and the meeting was canceled.

Colwell, who had grown weary of the whole situation, submitted her letter of resignation. She filed suit a few months later.

The Employer’s Argument

As its defense to Colwell’s claims, Rite Aid argued that it had no duty to accommodate Colwell’s request because an employee’s commute to and from work is not sufficiently related to the job and, therefore, not the proper subject of an accommodation. This is an important point. The parties agreed that Colwell did not need an accommodation once she got to work—the question in this case was whether the employer had a duty to provide an accommodation to enable her to get there in the first place. The trial court agreed with Rite Aid, and held:

the ADA is designed to cover barriers to an employee’s ability to work that exist inside the workplace, not difficulties over which the employer has no control.

The district court went on to find that imputing a duty to accommodate Colwell’s request was tantamount to “mak[ing] an employer responsible for how an employee gets to work, a situation which expands the employer’s responsibility beyond the ADA’s intentions.” Colwell appealed.

The Third Circuit’s Ruling

On appeal, the question before the Third Circuit was “whether a shift-change request can be considered a reasonable accommodation for an employee who cannot drive at night” because of a disability. Before the Third Circuit, Rite Aid argued that it did not have a duty to accommodate Colwell’s request. In fact, it argued, it did not have a duty to even consider her request because her “difficulties amounted to a commuting problem unrelated to the workplace and the ADA does not obligate employers to address such difficulties.”  The Third Circuit disagreed and ruled that, as a matter of law:

the ADA does contemplate an accommodation that involves a shift change to “alleviate [an employee’s] disability-related difficulties in getting to work.”

Here’s the basic rationale.

First, the court pointed to language in the ADA that specifically provides that a shift change may constitute a “reasonable accommodation.” Thus, a change in shifts is a change in a workplace condition entirely under the employer’s control.

Second, the court explained that, despite Rite Aid’s argument to the contrary, the scheduling of shifts is something done inside the workplace. The court distinguished this from an employee’s request for assistance in getting to work. For example, an employer would not have a duty to provide an employee with transportation to or from work. But an employer does have a duty, where reasonable, to accommodate an employee by changing the times that the employee is required to be at work.

For a Jury to Decide

It’s important to understand that the Third Circuit’s reversal does not mean a “win” for the plaintiff. Instead, the case will be remanded back to the district court for trial. At trial, the jury will be asked to decide which party, Colwell or Rite Aid, failed to meet its obligation to fully participate in the “interactive process” required by the ADA. That decision could go either way.

The jury could find for Colwell, based on the claim that the supervisor’s flat refusal to discuss a possible shift change was not a sufficient attempt at an accommodation. Or the jury could find for Rite Aid, based on the claim that the supervisor had agreed to meet with Colwell and her union rep but when the union rep failed to show up at the meeting, Colwell quit before further discussions could be had.

Alternatively, the jury could find that Rite Aid complied with its duty to engage in the interactive process but, for whatever reason, the shift change was not a viable accommodation. This would be a more difficult burden to meet but not an impossible one.

The Key Lesson

For many employers, this case may seem to have been decided on a technicality. The line between getting an employee to work and giving the employee a shift so that she can get to work seems to be a very thin line indeed. Putting aside the narrow difference, employers should look at the facts on a more basic level to derive the lesson to be learned. In other words, what, if anything, about the supervisor’s response just doesn’t seem fair?

The fact that the supervisor refused to even consider the request doesn’t seem quite right, does it? The supervisor’s immediate response was that a shift change wouldn’t have been “fair” to other employees. That may or may not have been the case. Shouldn’t she have at least bothered to ask the other employees?

The real lesson here is one that is a consistent theme in ADA issues: employers should always try to “work something out” when an employee requests an accommodation due to a disability. If you sit down and discuss the possibilities and then flush out as many options as you can, you will be a far better position.

But do it not because you have to; do it simply because you want to. You want to keep your good performers and not to make employees’ working lives any more burdensome than necessary. This is the same reason employers provide benefits and incentive plans. The same motivation should apply when an employee makes a reasonable request—start with the idea that you want to make the accommodation and take it from there.

 

The EEOC published a press release a few days ago about the distribution of a $6.2 million settlement it had reached with Sears, Roebuck & Co. The lawsuit had been filed in November 2004 in federal court in Chicago. The consent decree was entered and publicized on September 29, 2009 as the largest ADA settlement in a single case in EEOC history. The EEOC Regional Attorney handling the case stated:

The era of employers being able to inflexibly and universally apply a leave limits policy without seriously considering the reasonable accommodation requirements of the ADA are over. Just as it is a truism that never having to come to work is manifestly not a reasonable accommodation, it is also true that inflexible leave policies which ignore reasonable accommodations making it possible to get employees back on the job cannot survive under federal law. Today's consent decree is a bright line marker of that reality.

The EEOC had complained that “Sears maintained an inflexible workers’ compensation leave exhaustion policy and terminated employees instead of providing them with reasonable accommodations for their disabilities, in violation of the ADA.” The settlement resulted in payments averaging $26,300 to 235 former Sears employees.

This is not the only such case pursued by the EEOC. The EEOC filed a class action lawsuit suit against UPS in Chicago on August 27, 2009. According to the EEOC press release, the case was initially prompted by an investigation into a complaint that UPS had fired an employee with multiple sclerosis after she exhausted the twelve months off to which she was entitled under the UPS leave of absence policy. She had asked for 2 more weeks of leave so that her medications could be adjusted, but UPS allegedly refused to provide it.

In November 2009, the EEOC reached a settlement with JPMorgan Chase & Co. in a class action based on similar allegations. The EEOC alleged that Bank One, which later merged with Chase, had terminated some employees after they exhausted six-month medical leaves without first investigating on a case-by-case basis whether it was possible to accommodate their limitations so that they could return to work. As a result of the settlement, $2.2 million was to be distributed among 222 individuals who had taken long-term-disability leave and were then terminated.

Big companies that have leave policies, no matter how generous, that call for automatic termination of employees who exhaust the specified period of available time off, are prime targets for EEOC class action suits. Many courts have upheld claims by employees that their former employers violated their rights under the Americans with Disabilities Act by refusing to even consider extending their leaves of absence or providing other forms of reasonable accommodation. Employers should examine their long-term and short-term disability and medical leave policies to ensure that they comply with the ADA’s mandate that employers attempt, on an individualized basis, to accommodate employees’ disabilities before terminating their employment.

As 2009 winds down, it’s a good time to reflect on the most important employment law developments in what has been a very busy year. Here are my top 10:

Continue reading "Top 10 Employment Law Developments of 2009" »

Last week, I posted twice on the recent controversy surrounding service animals. (See Table for Two, Please--Me and My Seeing-Eye Horse; Quit Monkeying Around: Court Rules Monkey Is Not a Service Animal).    Apparently, I’m not the only one who finds the issue interesting. Over the weekend, the New York Times’ Week In Review feature included a piece on the same topic.  In Good Dog, Smart Dog, Sarah Kershaw writes about service animals that provide “psychiatric service.” Certainly, the animals discussed in Kershaw’s article appear to provide far more meaningful services than those discussed in some of the news pieces I cited last week.  

Although it is not clear how these animals are able to do it, they are said to have certain cognitive powers that enable them to detect the onset of conditions, such as seizures, minutes before they begin. The abilities of these animals is tremendous, to say the least.  It appears that they have the ability to save the lives of their owners in remarkably astonishing ways.  Take, as an example, the labradoodle who has been trained to:

anticipate seizures, panic attacks and plunging blood sugar and will alert his owner to these things by staring intently at her until she does something about the problem. He will drop a toy in her lap to snap her out of a dissociative state. If she has a seizure, he will position himself so that his body is under her head to cushion a fall.

The piece is timely and fascinating.  It is well written and insightful and provides an entirely unexpected perspective of an already complex issue.

Service animals provide assistance to persons with disabilities in a number of ways. Last week, I wrote about the seeming confusion surrounding “non-standard” service animals, like a boa constrictor and a “seeing-eye horse.”  The U.S. DOJ published proposed revisions in an attempt to clarify what animals do and do not qualify as service animals for purposes of the ADA.  The proposed regulations relating to service animals (PDF) would exclude the boa constrictor (and other snakes and reptiles), as well as rabbits, farm animals, ferrets, and wild animals, including monkeys born in captivity. Explaining the perceived need for the changes, the DOJ stated:

At the time the regulation was promulgated, the Department believed that leaving the species selection up to the discretion of the individual with a disability was the best course of action. Due to the proliferation of animal types that have been used as ‘‘service animals,’’ including wild animals, the Department believes that this area needs established parameters. Therefore, the Department is proposing to eliminate certain species from coverage under the ADA even if the other elements of the definition are satisfied.

The proposed regulations would also exclude animals that do not provide assistance but that provide emotional support, comfort or companionship. But, as reported by the ABA Journal, the regulations may have come a bit too late.  The apparent popularity of these “non-standard service animals” is widespread.

After some 4,500 people flooded the DOJ with comments about the proposal, the Obama administration delayed implementation until its new civil rights team was on board. At this point, the revised ADA regulations are expected by the end of the year.

And, today, the ABA Journal offers an interesting update to the story.  A federal judge has ruled that Richard, a monkey belonging to a Missouri woman, does not qualify as a service animal entitled to the benefits offered by ADA.  The ADA does not require businesses to permit Richard access with his owner, says the court.

Richard’s owner claimed that Richard was the key to controlling her anxiety and agoraphobia and sued when the County Health Department and Wal-Mart (among others), refused to permit her to bring Richard along while she patronized local businesses.

In the Court’s opinion (below), it identified the benefits the plaintiff claimed to receive from the monkey’s companionship.  The plaintiff claimed that Richard:

blocks people from getting too close in public places, “tolerat[es] ... a position for hours” so Plaintiff can focus without anxiety, brings Plaintiff to full awareness by performing tasks such as holding her hand or touching her face, sits on her lap for “as long as it takes to relieve the emotional overload,” gets his toothbrush to encourage her to get out of bed, brings the remote control to the TV or the cell phone if Plaintiff is not “functioning normally,” turns her turn signal in the car when she reaches her street to inform her it’s time to turn, the monkey can open the car door allegedly as an “escape strategy,” uses a “direct look with an open mouth” or a “gentle push” to alert strangers to stay away, and hugs Plaintiff to bring her anxiety level down.

These allegations are helpful in understanding why the court rejected the plaintiff’s claim.  As comforting as Richard’s assistance may be, none of the tasks he performs apparently help his owner perform a major life activity that she would not otherwise be able to perform but, as her doctor testified, primarily sits with Plaintiff and provides her with comfort.

Fed. Register Service Animals

Wondering what it is okay to say and do with regard to employees who have, or might have, the flu? The EEOC has stepped up with information to clarify with information about flu-related issues based on the principles of the Americans with Disabilities Act, or ADA. The World Heath Organization posts periodic updates on the status of the H1N1 pandemic, which has been in phase 6 (sustained community-level transmission of the virus is taking place in more than one region of the world) since June 2009. Delaware is one of the states that the United States Center for Disease Control currently considers to be experiencing a “widespread” H1N1 flu outbreak.

The EEOC has provided a questionnaire that employers may use to determine the likelihood that employees will be absent during a flu outbreak:

ADA-COMPLIANT PRE-PANDEMIC EMPLOYEE SURVEY

Directions: Answer “yes” to the whole question without specifying the factor that applies to you. Simply check “yes” or “no” at the bottom of the page.

In the event of a pandemic, would you be unable to come to work because of any one of the following reasons:

If schools or day-care centers were closed, you would need to care for a child;

If other services were unavailable, you would need to care for other dependents;

If public transport were sporadic or unavailable, you would be unable to travel to work; and/or;

If you or a member of your household fall into one of the categories identified by the CDC as being at high risk for serious complications from the pandemic influenza virus, you would be advised by public health authorities not to come to work (e.g., pregnant women; persons with compromised immune systems due to cancer, HIV, history of organ transplant or other medical conditions; persons less than 65 years of age with underlying chronic conditions; or persons over 65).

Answer:  Yes______  No_______

 

The EEOC also explains that employers may send employees home who appear to have flu symptoms, may ask employees if they are experiencing flu symptoms (fever, chills, cough, sore throat), may take employees’ temperatures if the flu is deemed “widespread” by state or local authorities or the CDC (although some people with flu do not run a fever), may encourage employees to telecommute, may require employees to adopt infection control practices like hand washing and proper coughing and sneezing practices, may require employees to wear personal protective equipment designed to reduce infection transmission (i.e., gloves, face masks, disposable gowns), and may ask employees why they were absent from work.

Employers may not require employees to get flu vaccines, ask whether employees have health conditions that may make them more vulnerable to flu or complications from flu, or treat employees or applicants differently because they have a disability (such as HIV) that could make them more vulnerable to flu or complications from flu.

The Americans With Disabilities Act (ADA), was amended in September 2008 by the ADA Amendments Act of 2008 (ADAAA), which took effect on January 1, 2009. The ADAAA emphasizes that the definition of disability should be construed in favor of broad coverage of individuals to the maximum extent permitted by the terms of the ADA and generally shall not require extensive analysis. In other words, the Amendments Act expanded who qualifies as “disabled” for the purposes of the ADA’s protections. The new law makes it easier for an individual to establish that he or she has a disability within the meaning of the ADA.

The ADA’s basic definition of "disability"—an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment—remains the same under the new law. But those definitional terms are now subject to revised interpretations. A summary of the key revisions are set forth in the document linked below.

EEOC must revise its ADA regulations to comply with the new law. To accomplish these revisions, EEOC approved a Notice of Proposed Rulemaking (NPRM), containing a detailed analysis of the proposed changes, in September. There is a 60-day period following the publication of the NPRM when the Commission receives public comments on the proposed changes. Those comments are considers when drafting the final regulations.

As part of this public-comment period, EEOC will host four full-day “Town Hall Listening Sessions” across the county in October and November. Those in the Philadelphia area will have the opportunity to participate in one such session on Friday, October 30, 2009. Attendees will have the chance to provide their direct input on the proposed regulations.

 

The Format

The Listening Session will be held at the Liberty Center from 9 a.m. to 4 p.m.   Throughout the day, individuals will be able to comment on the proposed regulations in five-minute increments. Some of the time slots will be pre-assigned and others will be available on a first-come, first-served basis on the day of the event. Details, including the event address and registration details,are provided in the document below.

Those who take advantage of this opportunity will have the attention of a panel of key players. The panel will be presided over by EEOC’s Acting Chair and Vice Chair, Stuart J. Ishimaru and Christine Griffin, and Commissioner Constance S. Barker, as well as DOJ’s Deputy Assistant Attorney General for Civil Rights, Samuel Bagenstos, Counsel to the Assistant Attorney General for Civil Rights, Mazen Baswari, and Chief of the Disability Rights Section of the Civil Rights Division, John Wodatch.

Notice of EEOC Town Hall Listening Session re: ADAAA in Philadelphia

I love animals. There’s no denying it. But, despite my passion for the Wild Kingdom, the stories of “unusual” service animals have me a bit perplexed. Over the last year or so, I’ve seen several stories in the news about individuals who claim that their pets should be considered service animals, thereby enabling them to take the animals places pets normally would not be allowed.

For example, last spring, there was the story of a Texas woman and her “seeing-eye horse.” The woman, Tabitha Darling, is legally blind and accompanied her owner to places like the grocery store. ABC News also reported on individuals who used parrots, ferrets, and monkeys to help with psychological disorders.

And, yesterday, I read a story about a man living near Seattle, WA, who says that his nearly 5-foot-long boa constrictor classifies as a service animal because it can help him stop a seizure before it stops. Redrock the boa, says its owner, Daniel Greene, 46, alerts him to pending seizures by giving him a “hug.”

These stories raise all sorts of questions about public and employment-related accommodations. Surely, a horse in the freezer section at the local Acme would cause some commotion. If the store manager asked Ms. Darling to remove the horse from the store, would Ms. Darling be obligated to comply? Or would the Americans With Disabilities Act require that the horse be permitted to stay? The ADA provides that service animals can go anywhere their owners can go. But the question, of course, is “who decides what qualifies as a ‘service animal’ for purposes of disability discrimination? Good question.

For purposes of public access, the ADA defines a service animal as “any guide dog, signal dog, or other animal individually trained to provide assistance to an individual with a disability, regardless of whether they have been licensed or certified by a state or local government.”

One limit, albeit a small one, is a “service animal” that barks, growls (or hisses?) at others, or otherwise acts out of control. In that case, businesses and employers may exclude the animal, provided that the animal’s behavior posses a threat to the health or safety of others. An animal that is “scary” to the business or employer cannot be excluded without any actual display of vicious behavior.

The EEOC does not define “service animal” under the employment provisions of the ADA. Employers must consider allowing an employee with a disability to use a service animal at work unless doing so would result in undue hardship. And, because the term “service animal” is not defined in this context, employers may have to consider allowing an employee to bring in an animal that does not meet the public-access definition, such as a therapy animal.

A “therapy animal,” on the other hand, is not defined by the ADA or other federal law. Some states have laws defining a therapy animal. Generally, a therapy animal provides people with animal contact but is not limited to working with individuals with disabilities. Therapy animals are considered “pets,” which are excluded from the definition of service animal.

As always, the Job Accommodation Network (JAN) has great resources for this difficult question, including the article below, titled Service Animals In the Workplace, which was updated in March of 2009, which JAN makes available for republication as one of its countless services. 

 

Swine Flu is a concern for many employers right now. Employers want to provide employees with up-to-date information about the steps that can be taken to prevent the spread of the swine flu.  Employers also want to prevent the spread of panic where not warranted.  We posted previously with resources for employers. There is a new resource from the EEOC and it takes a different and important approach.  The EEOC's new guidance addresses how employers should manage ADA concerns as they may arise in the context of the swine flu.

The fact sheet, ADA-Compliant Employer Preparedness For the H1N1 Flu Virus, raises some excellent points.  My favorite is an issue has already come up with several of my clients--what to do if you are concerned about an employee's exposure to the swine flu.  For example, an employee returns from a business trip to Mexico, where he's been for several weeks.  Can you require that he not return to work until he gets tested for the H1N1 flu virus?  Can you require him to work at home or telecommute until the issue can be resolved?  Here's what the EEOC has to say:

May an employer require entering employees to have a medical test post-offer to determine their exposure to the influenza virus?

Yes, in limited circumstances. The ADA permits an employer to require entering employees to undergo a medical examination after making a conditional offer of employment but before the individual starts work, if all entering employees in the same job category must undergo such an examination.

Example A:  An employer in the international shipping industry implements its pandemic influenza preparedness plan when the WHO and the CDC confirm that a new influenza virus, to which people are not immune, is infecting large numbers of people in multiple countries. Because the employer gives these medical tests post-offer to all entering employees in the same job categories, the examinations are ADA-compliant.

For additional resources, see: Information for Employers on the Swine Flu

The U.S. Department of Labor's Office of Disability Employment Policy (ODEP), has released two new resources on the employment of persons with disabilities. 

Comprehensive Reference for the Employment of Persons with Disabilities

To meet the need for a comprehensive, portable, and easy-to-understand guide for employers who are looking to recruit, hire, and retain employees with disabilities, ODEP just released its new Four-Step Reference Guide. The online version of this valuable resource covers topics such as Incentives & ROI, Recruiting, Interviewing & Hiring, and much more. And be sure not to miss the last three pages, which contain a wealth of links and other resources for employers.   Diversifying Your Workforce, A Four-Step Reference Guide to Recruiting, Hiring & Retaining Employees with Disabilities is available now online and will be available later this year in print.

Employers' Use of Accessible Technology to Improve Employment for People With Disabilities

The second resource is a follow up to last year's Roadmaps for Enhancing Employment of Persons with Disabilities Through Accessible Technology (Roadmaps I).  Roadmaps I affirmed current successful business policies and practices and identified new strategic policies and practices. The Roadmap for the business community identifies the actionable steps that can be taken by the business community to facilitate the widespread adoption of these policies and practices by businesses. Roadmaps I was released on January 31, 2008.

Roadmaps II provides an overview of federally funded accessible-technology (AT), programs; a summary of some of the barriers that affect the use of AT by individuals with disabilities; and recommendations to increase the employment of individuals with disabilities though AT. The report was launched in Philadelphia, Pennsylvania, at the 2009 Annual Conference of AT-Act Programs on April 21.

Related resources:

Two New Employment-Outreach Programs from the ODEP

Honoring Veterans By Supporting Their Reemployment Efforts

National Disability Employment Awareness Month

Telework has lots of advantages for employers.  One such advantage that commonly is overlooked is that telework can promote employment opportunities for people with disabilities.  The Office of Disability Employment Policy (ODEP), conducted a study on this benefit in an effort to inform future policy decisions.  The study, published in late 2008, offers insight into the specific ways telework can be used to assist people with disabilities.  The purpose of the research was to evaluate the following types of telework:

1.  Using telework as a return-to-work strategy specifically for people with disabilities receiving federal and state workers' compensation; and

2.  Using telework as an alternative strategy for increasing competitive employment for disabled vets returning from tours of duty.

The 2008 Survey of Employer Perspectives on the Employment of People with Disabilities was performed using data gathered from employers in 12 industry sectors of varying sizes.

Here are some of the key findings:

Employing people with disabilities

• 19.1% of employers report employing people with disabilities.
• By size of employer:
• 10.7% of small companies (with 5-14 people) report employing people with disabilities.
• 22.6% of medium companies (with 15-249 people); and
• 53.1% of large companies (250 and more people).

Recruiting people with disabilities

• 13.6% report that they actively recruit people with disabilities.
• 33.8% of larger companies, compared with 7.8% of smaller companies, actively recruit people with disabilities.
• In the private sector, service-producing industries are more likely to actively recruit than those in goods-producing industries.

Hiring people with disabilities

• 8.7% of companies report having hired people with disabilities in the past 12 months.
• Large companies (32.6%) are more likely to have hired a person with disabilities in the past 12 months compared to medium-sized companies (8%).
• The most often cited challenge in hiring a person with a disability is that the nature of the work is such that it cannot be performed by a person with a disability. (72.6% of all companies).
• For small and mid-sized businesses, the cost and the belief that workers with disabilities lack the skills and experience necessary are the most often cited concerns. 
• For large companies, the most cited concern is supervisory uncertainty about how to take disciplinary action.

The full report is available at the ODEP's website.

Related Posts and Resources:

New Resources on the ADAAA

Dep't of Labor: Guidance on Employing Young People With Disabilities

Honoring Veterans By Supporting Their Reemployment Efforts

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.