Americans with Disabilities Act (ADA)

Bill Egan writes:

Under the Americans With Disabilities Act (ADA), a covered employer must provide reasonable accommodations to disabled employees, unless doing so would cause an undue hardship on the employer. Generally, an employer’s duty to reasonably accommodate is initiated by a request for an accommodation from a disabled employee or someone speaking on the employee’s behalf.

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Copyright: bbourdages / 123RF Stock Photo

Most courts have held that a request for accommodation from an employee is a “predicate requirement” to the interactive process for determining whether a reasonable accommodation can be made and what that accommodation will look like. The ADA does not require an employer to speculate about the accommodation needs of employees and applicants.

That has now changed, at least in the Eighth Circuit.  In Kowitz v.Trinity Health, a hospital respiratory therapist returned to work under a lifting restriction after undergoing spine surgery and exhausting her 12-week FMLA leave.  Although the hospital initially accommodated this restriction, it terminated the therapist’s employment after she advised that her doctor restricted her for four months from performing the physical demonstration portion of the “basic life support” recertification process, a departmental requirement.

The District Court granted summary judgment to the hospital concluding that Kowitz was not qualified to perform the essential functions of her job because she was not certified to provide basic life support.  The court further held that because Kowitz never requested a transfer to another position, the hospital was under no obligation to reassign her to a position that did not require the basic life support certification.

The Eighth Circuit reversed, over a strongly worded dissent, holding that an express request for assistance is not needed to trigger an employer’s duty to discuss the reasonable accommodation option with an employee.  The court held, “Though Kowitz did not ask for a reasonable accommodation of her condition in so many words, viewing the facts in the light most favorable to Kowitz, her notification to her supervisor that she would not be able to obtain the required certification until she had completed physical therapy implied that an accommodation would be required until then.”

The lesson from Kowitz is if the facts known to the employer about an employee’s disability are sufficient to make the employer aware of the possible need for a reasonable accommodation, the employer is legally obligated to engage in the interactive process to determine if indeed the employee needs such an accommodation and whether an accommodation can be made without posing an undue hardship on the employer.


Bill Egan is a partner in the Labor & Employment Department, resident in Fox’s Minneapolis office.

A workplace of any significant size is bound to be full of individuals who are a little off the beaten path, so to speak.  While an employer will need to deal with the quirky dispositions of some workers, on occasion an employee’s behavior will cross over from merely quirky  to disturbing.

The first step towards addressing the issue is a fitness for duty exam.  These exams, which are typically conducted with licensed medical professionals, evaluate whether an employee is physically or emotionally appropriate for their position.  But this is complicated by the fact that disturbing behaviors often are due to psychiatric and emotional conditions, which are covered as disabilities under most state and federal discrimination laws.  If an employee has such a disability, an employer may require a fitness for duty exam only if the exam is job-related and part and parcel to a legitimate business necessity. This standard will generally be met if the employer has a reasonable belief that either a) the employee’s condition may prevent the employee from performing the job’s essential functions, or b) the employee poses a direct threat to his or her own safety or the safety of others.

This past week, an Illinois appellate court found for the employer in such a situation where an employee was observed in an office talking to herself and sending cryptic emails to coworkers.  The employee, who clearly suffered from an emotional infirmity that would be covered by the ADA, was sent for a fitness for duty examination with a mental health professional.  The employee then sued, arguing that the examination was a violation of the ADA.

If confronted with such a situation, employers should immediately engage with an employee for more reasons than just legal.  After assessing the situation, including gathering any pertinent documentary information, an employer should weigh the two questions above and err on the side of caution if an evaluation is necessary.

It should also be noted that this analysis is also applicable to physical challenges in positions that include manual labor.

Taking early intervention with respect to a possibly troubled employees can be a proactive step towards preventing workplace violence and improving efficiency.

Employee leave issues can be exceedingly complicated given the interplay between local, state and federal laws.  If you have questions, hopefully, I can help.  I will be giving a webinar through Lorman on June 23rd at 1 pm EST entitled “Legal and Practical Solutions for Accommodating Employees with Serious Illnesses.”

17568955_sI am pleased to be able to offer you a 50% discount off the normal prices.  To register, click the above link and put in the following discount codes.

Discount code: B5513783
Priority code: 15999

Hopefully, you can join me on Thursday.

 

Employee Handbook
Copyright: iqoncept / 123RF Stock Photo

In newly published guidance, the Equal Employment Opportunity Commission (“EEOC”) discusses employer leave policies and the Americans with Disabilities Act (“ADA”). This guidance is significant for a number of reasons.  First, ADA-related developments feature prominently in the EEOC’s most recent enforcement plan. Second, alleged ADA violations continue to rank high on the list of grounds for which the EEOC both receives complaints and ultimately initiates lawsuits. Third, the interaction of ADA and employer leave policies adds another wrinkle to the complex interaction of laws at the federal, state, and local level that require paid or unpaid leave in some fashion.

The Relevant ADA Requirements

Before discussing the EEOC’s guidance, a brief refresher on the ADA “basics” may prove helpful. The ADA prohibits disability-based discrimination in employment and requires covered employers to provide reasonable accommodations to employees with disabilities. ADA regulations define “reasonable accommodation” as “any change in an employee’s work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment accommodation.”

Under this definition, a broad variety of modifications to the work environment could potentially be reasonable accommodations, including leave. Potential accommodations, however, are not reasonable if: 1) they require eliminating an essential function of the job, or 2) they would cause undue hardship to the employer. A determination of undue hardship is a case-by-case analysis of the effect of the proposed accommodation on the employer’s operations or finances.

An employee who requests an accommodation triggers the “interactive process,” which, in broad terms, can be thought of as a dialogue between employer and employee seeking to identify the precise limitations of the disability and the potential reasonable accommodations that could overcome those limits. The employee does not need to use any specific phrasing to request an accommodation.

So how does the ADA affect employer leave policies?

Equal Access to Leave                                                                                            

Employers may not discriminate in employment on the basis of an individual’s disability. In the leave context, this means when an employee with a disability requests leave within the employer’s existing policies, the employer should treat that employee the same as employees without disabilities who request leave. The EEOC highlights this requirement with an example:

Example 2: An employer permits employees to use paid annual leave for any purpose and does not require that they explain how they intend to use it. An employee with a disability requests one day of annual leave and mentions to her supervisor that she is using it to have repairs made to her wheelchair. Even though he has never denied other employees annual leave based on their reason for using it, the supervisor responds, “That’s what sick leave is for,” and requires her to designate the time off as sick leave. This violates the ADA, since the employer has denied the employee’s use of annual leave due to her disability.

Leave as a Reasonable Accommodation

The EEOC’s guidance highlights the role leave can play as a reasonable accommodation. The EEOC’s guidance states that employers are required to consider unpaid leave as a reasonable accommodation to an employee who has a disability, even if:

the employer does not offer leave as an employee benefit;

the employee is not eligible for leave under the employer’s policy; or

the employee has exhausted the leave the employer provides as a benefit (including leave exhausted under a workers’ compensation program, or the FMLA or similar state or local laws).

Employers need not provide unpaid leave as a reasonable accommodation if doing so would create an undue hardship. Moreover, the EEOC cautions employers should not penalize employees who use leave as a reasonable accommodation, as doing so may be considered retaliation that violates the ADA.

Potential Red Flags

The EEOC guidance highlights leave-related policies where employers may run into ADA trouble.

Maximum Leave Policies are common to many employers in various forms. Sometimes these policies are referred to as “no fault” leave policies.  These policies often place caps on the amount of leave employees can use. Limits on Unplanned Absences are another policy tool some employers implement, and these policies typically spell out a set number of unplanned days off an employee is permitted to take before disciplinary action may occur. As the EEOC correctly notes, employees with disabilities aren’t categorically exempt from these policies. Nevertheless, employers may need to adjust these policies as a reasonable accommodation for an employee with a disability, unless the modification would constitute an undue hardship.

100% Healed Policies. Sometimes, employers may require an employee with a disability to be 100% healed (meaning, they have no medical restrictions) before returning to work, such as, for example, after a lengthy medical leave related to surgery. If such an employee is able to perform the essential functions of his or her job with our without reasonable accommodation, requiring that employee to be 100% healed before returning to work may violate the ADA. While there are exceptions – including undue hardship and the direct threat defense – employers maintaining 100% healed policies should tread carefully to ensure ADA compliance.

Bottom Line

In light of the EEOC’s new guidance on this topic, what should employers do?

  • Self-Audit. Review internal policies, procedures, and employee job descriptions for ADA compliance.
  • Train. Ensure that managers, supervisors, and HR professionals, as appropriate, are regularly trained on how to respond to accommodation requests, including leave as a possible accommodation.
  • Document, document, document.  Keep detailed records of discussions with employees that involve the interactive process and any decisions on requests for accommodation (and remember – there are no “magic words” an employee must use when requesting an acommodation).
  • Consult Counsel. Work with knowledgeable counsel early on to ensure ADA compliance and reduce legal exposure.

Today’s post comes to us courtesy of Brian McGinnis, an associate in our Labor and Employment Department in our Philadelphia office.

17755599_sThe Centers for Disease Control and Prevention estimate that over 1.2 million Americans live with an HIV-positive health status.  Under the Americans with Disabilities Act (“ADA”), HIV-positive status qualifies as a disability, providing a variety of legal protections to HIV-positive employees who work for qualifying employers.  These provisions include protections against discrimination and harassment on the basis of an employee’s HIV-positive status.

The Equal Opportunity Employment Commission (“EEOC”) recently addressed this issue, publishing a fact sheet entitled, “Living with HIV Infection:  Your Rights in the Workplace under the ADA.”  This fact sheet provides guidance to HIV-positive employees on a variety of their rights under the ADA, particularly the process of seeking a reasonable accommodation from their employer.

During the process of seeking a reasonable accommodation, the EEOC notes that employees may not need to disclose their HIV-status;  rather, it may be sufficient for employees to state they have an immune disorder.  Whether an employee discloses his or her HIV-positive status or provides a more generalized description, it is critical that employers keep this information confidential.

The EEOC suggests a variety of proposals that could qualify as a reasonable accommodation, depending on the circumstances, including:  modified schedules (including frequent rest breaks, bathroom breaks, as well as flexible time to schedule doctors’ or other medical appointments), unpaid time off for required treatment or recuperation, ergonomic office furniture, and permission to work from home, among others.  This list, however, is non-exhaustive, and the EEOC encourages employees to request accommodations specific to their unique needs according to their condition.

It is also critical for employers to know they may face ADA liability if they take certain actions toward HIV-positive employees during this process on the basis of myths or stereotypes about HIV/AIDS.  This reality is particularly noteworthy, given the history of misinformation, stigma, and stereotyping that has surrounded HIV/AIDS since it first came into the public eye in the late 1970s and early 1980s.

Because a broad range of reasonable accommodations may be sufficient for HIV-positive employees and because of the historic stigmatization of HIV-positive people, employers should consult knowledgeable counsel to ensure effective and appropriately sensitive management of the reasonable accommodations process.  Doing so will not only help employers meet their legal obligations under the ADA, but can also promote a beneficial resolution for both employer and employee.

Last week, the calendar officially turned to winter.  While the weather has been uncharacteristically balmy in the Northeast, soon temperatures will plunge and cold and flu season will arrive.  In New Jersey, two employees who were terminated from their jobs after declining work-issued immunizations have brought suit claiming that the termination was nothing more than discrimination on religious grounds.

The two plaintiffs were employees of a faith-based social services agency in South Jersey.  The agency, which provides nursing home service, mandated the immunizations in light of their dealings with elderly and infirmed clients.  In lieu of submitting to the shot, the employees, who did not directly interact with client, were offered the alternative arrangement of wearing a surgical mask at all times.  The suit argues that a mask requirement is unnecessarily punitive and is not a reasonable accommodation of the terminated employees’ religious beliefs.

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This is merely the latest salvo in an increasingly common struggle.  Vaccination rates in workplaces have risen as companies have realized that the cost of the vaccinations far outweighs lost production time from sick days.  In addition, a provision of the Affordable Care Act ties some Medicare reimbursements to employee vaccination rates.

So how should your company approach the issue?  First, review your handbook and if a written policy is not contained in it, make arrangements for an update.  In the policy, be sure to set forth a detailed procedure by which individuals can seek an exemption on protected grounds.  Finally, have a plan to have these requests reviewed by individuals familiar with the applicant’s job duties.

While inoculation policies have decided benefits for your company, a clear policy on exemptions can obviate the need for litigation later.

This week, the University of Southern California terminated Steve Sarkisian, their head football coach.  The firing came after a cavalcade of headlines that Sarkisian, essentially the CEO of a multi-million dollar enterprise, was increasingly showing up at practices, team functions, and even games allegedly under the influence of alcohol.  The move came one day after Sarkisian took an indefinite leave of absence to enter treatment for alcoholism.

Obviously, we here at the Employment Discrimination Report wish Coach Sarkisian nothing but the best in his attempts to embrace recovery and put his life back on track.  But the way USC handled the situation with a high-profile employee offers instruction on how to handle employees with substance abuse issues out of the public eye.

SteveSarkisian

Under the Americans with Disability Act and most state anti-discrimination statutes, alcoholism meets the definition of a disability.  But that should not be taken to mean an employer has to put up with an employee’s drinking on the job or showing up drunk simply because they are an alcoholic. The disease of alcoholism meets the definition of a disability, which means that an employer can’t take into account that an employee is an alcoholic when making employment decisions. However, an employer may maintain a blanket prohibition on drinking at work that applies to both alcoholics and non-alcoholics alike (If this is not in your handbook, it is well past time for an update).

An employee who can’’t meet those standards because of drinking may be disciplined, whether they are an alcoholic or not.  Taking Coach Sarkisian as an example, while he self-identifies as an alcoholic, USC can state that he was terminated for showing up intoxicated on the job, not because of his disease.  The moral of the story is that the employer must set policies that separate the disease from conduct.  This will allow employers to deal with employees caught drinking on the job yet still be in compliance with anti-discrimination statutes.

Feel free to contact our Labor and Employment Department with any further questions

28792171_sFirst, let us wish our fellow blogger, Tom Basta our hearty congratulations on the birth of his twins! They are adorable and likely to keep Tom very busy (and tired) these next few weeks.

Before the twins arrived, Tom and I had some discussions about how much time off he was going to take so that we could plan coverage for his absence.  These discussions and a recent webinar on pregnancy accommodation in which I was a co-presenter re-focused me on issues with paternity leave and maternity leave.

The fact is there are still some employers who think that maternity leave should be longer than paternity leave because, well, she was the one busy giving birth.  This may be true.  However, the fact is that employers need to be careful about such policies as they may be discriminatory against men.

If an employer’s policy is only to provide time for bonding with the baby after the birth, then maternity leave and paternity leave should be offered in equivalent amounts. In that case, there is no reason to distinguish between how much time a mother versus a father may spend bonding with the newborn.

For those employers who think that the mother deserves longer leave because she had to physically give birth and the father did not, such policies may be legal provided they are structured in the correct way.  Employers may lawfully give pregnant women longer leave amounts if a portion of the leave is considered disability leave related to actually giving birth and a portion is related to bonding with the newborn.  Again, in this case, employers should make sure that the bonding portion of the leave is the same as being offered to fathers.

33239943_sA judge in California has ruled that a fired black supervisor can proceed with claims of racial discrimination based solely on a comment that he was driving a “pimpmobile” and the fact that he was randomly selected for drug testing three times in a nine-month period while a white supervisor was never selected for drug testing during that same time period.  The court in Perkins v. National Express Corporation, et als. found that a jury could conclude that there was a racial motivation behind Perkins’ selection for drug testing and that, as a result, the stated reason for firing Perkins — that he failed to show up for the drug test — was pretext for discrimination.

Random drug testing can be fraught with difficulties.  There is no federal law that prohibits random drug testing.  In fact, some laws, such as the Federal Motor Carrier Act, may require random drug testing for drivers of commercial vehicles.  There are, however, many states where random drug testing may be an invasion of privacy under tort principles.  In some states, case law provides that random drug testing may only be conducted where required by statute or where a person works in a “safety-sensitive” position.  Some municipalities, such as San Francisco, have local laws that restrict random testing.

Assuming an employer can conduct random drug tests, employers need to be careful about how employees are selected for “random” testing.  Courts have generally held that even if drug testing is disproportionate to a plaintiff claiming discrimination, being selected for testing is not an adverse employment action absent some evidence of manipulation of the testing process.

Many employers use a computer program to randomize the selection of employees who will be tested.  Others use less technologically sophisticated methods of selecting test subjects.  Employers need to be careful with whatever method they utilize anytime they are setting up the pool to be tested or are setting up the selection process that they cannot be accused of manipulating the process to target certain individuals.

In addition to discrimination claims, some states have very specific laws as to what substances can be tested and what notice or appeal process must be provided to an employee of a positive test.  In short, employers should consult with legal counsel before implementing a drug testing policy.

36714348_sAlthough the facts alleged in a recent lawsuit entitled EEOC v. D&S Shipley Donuts are not quite as patronizing as the title of this post suggests; they are close.  The EEOC brought suit against a franchisee of Shipley’s Do-Nuts claiming that the franchisee violated Title VII of the Civil Rights Act of 1964 and the Pregnancy Discrimination Act.

The Complaint alleges that Brooke Foley was employed by D&S Shipley Donuts until she became pregnant.  However, this is not a simple case of an employee being terminated because she was pregnant.  The complaint alleges that employees who were pregnant were required to provide a written medical release assuring the company that they did not have a “high-risk” pregnancy and that it was safe for the employee to perform the normal job duties.  The EEOC also alleges that this medical release was required even in situations where employees did not request any type of accommodations or disclose that there were any medical issues related to the pregnancy.

When rumors spread that Ms. Foley was pregnant, the owner of the Company confronted her and allegedly demanded to know if she was pregnant.  She refused to confirm that she was in fact pregnant.  Nevertheless, during this confrontation, the owner told her that she was required to provide medical clearance.  Ms. Foley was also allegedly immediately removed from the work schedule until she could provide the note.  Ms. Foley objected to the requirement that she obtain medical clearance and was then terminated the following day.

This case has a rather simple lesson that is one of the basic premises behind the Pregnancy Discrimination Act  — that employers cannot assume that pregnant employees will be unable to work or will not be dedicated to their jobs once they become pregnant or have children.  Even in an environment where the physical demands are much greater than being a cashier in a doughnut shop, employers cannot simply assume that pregnant employees cannot perform the job functions.

A related lesson for employers is that the general rule under the Americans with Disabilities Act regulations is that an employer cannot require an employee to provide medical information unless the request for information is job-related and consistent with business necessity.  In the absence of a request for accommodation or some indication that the employee is actually unable to perform job duties on account of a medical condition, employers may violate the ADA by requiring medical information.