Disability Discrimination

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.

Pillars
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.

Gambling at casinos and on sports events have been a part of the fabric of American life since long before employment laws existed.  Unfortunately, the thrill of the bet can give way to a compulsive addiction that, left unchecked, can destroy an individual’s life.  If you have a workplace of any size, it is likely that there is at least one employee who suffers in silence from gambling addiction.

In a large percentage of cases, this has no effect on the workplace environment.  However, often gambling addictions give way to substance abuse, depression, and theft, all of which have serious implications on the workplace.

dice

However, federal and state courts (in most states) have been very clear that gambling addictions are not disabilities under the Americans with Disabilities Act or most of the state corollaries.  Despite the fact that the definition of “disability” has broadened over time, an employee is likely not going to be able to sustain an action for discrimination based upon a gambling addiction.

What should an employer do if an employee confesses an addiction to gambling?  Well, obviously we recommend referring them to the myriad of support groups that address the underlying issue (1-800-GAMBLER being the most well-known).  If the gambling addiction is accompanied by a disability that is recognized by state and federal law, that disability should be addressed. Beyond that, if the gambling addiction has led to bona fide performance issues, any discipline should be meted out at the discretion of the employer.

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.

Update:  Back in October, we brought you the story of Former USC Football Coach Steve Sarkisian and how the USC Administration handled alleged instances of  Sarkisian drinking on the job.  Sarkisian has filed suit in California State Court, claiming that, inter alia, he was terminated on the basis of his disability (alcoholism) .  He further alleges that USC failed to engage in the interactive process.  Notice that in his complaint, Sarkisian denies being inebriated, as his attorneys similarly recognize the need to separate the condition from the conduct.  You can view the Complaint here.

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.

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

This blog post was inspired by the amazing news that my partner, Patrick Murphy, was nominated by President Barack Obama as the United States Under Secretary of the Army.  My first reaction was to be impressed at this well-deserved honor for Patrick.  My second reaction was “what does the Under Secretary of the Army do?”

7995575_sAfter some quick Internet research, I discovered that the Under Secretary is the second-highest ranking civilian official of the United States Department of the Army.  After that I was even more impressed with Patrick’s accomplishments. It also got me thinking about a situation that seems to arise in a lot of organizations.

Imagine that after some organizational changes in the organization, a new head of a department reviewed the people in the department to see what everyone did just to get a handle on how to supervise the team.  After completing the review, there were several large question marks about what people did in certain positions.  Upon further investigation, there seemed to be one position that no one could explain what that person did.

This is problematic for a lot of reasons, not just how to evaluate performance when you do not know what tasks the person is supposed to be accomplishing.  Another issue issue that arises is dealing with accommodation requests.  In order to address accommodation requests, it is generally necessary to know what are a persons essential and non-essential job functions to evaluate whether an accommodation is reasonable.

It is far easier to make the accommodation analysis if there are written job descriptions that accurately describe the job functions of particular positions.  This helps to establish expectations for the position as well serves as a guideline for what non-essential functions may be removed as accommodation requests.

Also, having written job descriptions that are given to employees helps employers defend against claims of failure to accommodate.  With a written job description, it is difficult for an employee to argue that a job function is not essential or that an employer belatedly made up a job description to add tasks as essential to avoid making an accommodation.

Jobs do evolve over time so employers should periodically review job descriptions to determine if they still accurately describe the position.  If job descriptions are changed, it is helpful if a copy of the new job description is given to the employee and the employee acknowledges receipt of the job description.

Small WorldThe recent measles outbreak making headlines at Disney properties in California has been unnerving, to say the least. As any parent can attest, a visit to Disney is likely to be on someone’s wishlist at some point (as my two small children have already made clear!). Beyond planning a visit to see Mickey and Minnie, managers and HR professionals should also be cognizant of the disease’s spread, recently to New York, and be savvy to their obligations and restrictions vis-à-vis vaccinations and medical leave.

Must an employer require their employees to be vaccinated against measles? Generally, no, absent some specific health or safety regulation that may govern a particular industry in a particular jurisdiction (e.g. healthcare workers/first responders). For most employers, this is not an issue.

May an employer require employees to be vaccinated against measles? This is where things get tricky. There is nothing that would per se prevent requiring employees to be vaccinated against measles in order to work. However, dangers abound. Federal, state and local anti-discrimination provisions may require exceptions, primarily for religious and/or medical reasons. If the employee is in a high risk occupation, such as emergency medical services, the law provides more leeway, however each employer’s situation needs to be analyzed on a case-by-case basis.

A concerned employer could, alternatively, offer voluntary measles vaccinations, free of cost, which would provide employees some level of so called “herd immunity.” However, remember, you generally cannot ask about or disclose an employee’s vaccination status due to various privacy laws, such as the Health Insurance Portability and Accountability Act (HIPAA) and the Americans with Disabilities Act (ADA). Proper consent forms should also be obtained through an authorized vaccination provider.

If an employee does contract measles, it may be reasonable and/or required to force an employee to stay home (preferably on paid leave) until they are healthy to avoid its spread in the workplace. Depending on the employer’s size, Family and Medical Leave Act (FMLA) protected leave must also be offered and appropriate FMLA notices given. Confidentiality regarding the employee’s medical status must also be maintained and any discriminatory employment actions avoided.

As always, we recommend giving your friendly local labor and employment attorney a call to discuss the complexities of any particular issues you may have.

Perhaps this is the coda to the story of Henry’s Boys — perhaps not.

Readers no doubt recall Henry’s Turkey — the poster bird for the abuse of intellectually disabled employees.  We wrote about the legal case on behalf of these disabled employees many times — as recently as last week (see below).

Dan Barry in today’s New York Times reports that four of Henry’s Boys, including the fellow who he spotlighted in the Times last week (and we reported about), were removed from their spare and primitive bunkhouse by social services, “and their treatment is now being investigated by various local, state and federal agencies.”bunkhouse : Oregon - August 1, 2012: An old, weatherbeaten building that served as the main bunkhouse for an old cinnabar mine that is slowly decaying in the Ochoco Mountains in Central Oregon.

Linkhttp://www.nytimes.com/2014/12/20/us/4-men-in-bunkhouse-in-south-carolina-are-put-in-care-of-social-services.html

The Legal Case Against Henry’s

To recap (hopefully for the last time), on May 3, 2013 we reported about the $240,000,000 jury verdict against Henry’s Turkey Service (later reduced) where:  ”Intellectually disabled workers at Henry’s Turkey Service in Iowa were paid only $65 dollars per month eviscerating turkeys on an assembly line, we posted last September.

In an ADA case brought by the EEOC, an expert witness said that the company exploited the workers because they had intellectual disabilities, and simply did not know better.  She stated that the employer’s conduct “including acts of deliberate misrepresentation” about wages and expenditures, deprived the workers of “economic independence and self-sufficiency.” The company “took advantage of the workers … knowing that they would not likely be discovered because the workers were disabled.”

The NYT’s Description Of The Conditions At Henry’s

Last week’s piece by Dan Barry highlighted one of “Henry’s boys,” who, when he was 18:

“was selected to live and learn basic skills at a ranch in Texas’ Hill Country. The operation, Henry’s Turkey Service, trained Mr. Jones and dozens of other young men like him — including his brother — in the artificial insemination of turkeys: namely, to catch and milk the toms, and rush the semen to the henhouse.

The men became proficient in this dirty job, and a demand developed for their services. Gradually, the company dispatched crews to work at turkey plants in Iowa, Missouri, Illinois and South Carolina, moving employees around like chess pawns to meet the needs of clients.

Most of the operations eventually closed, leaving only a bunkhouse in Atalissa, Iowa, where Carl Wayne Jones wound up, and one here in Newberry [South Carolina], where Leon Jones landed.

The owners of Henry’s Turkey Service maintained that they had taken in men whom no one else wanted. They paid them a subminimum wage under a federal law — one they abused — that permits lower wages for people with disabilities, based on productivity. They deducted most of the men’s earnings to cover room, board and other expenses. And they allowed their Atalissa bunkhouse to descend into squalor, neglect and abuse.”

Linkhttp://www.nytimes.com/2014/12/07/us/separated-from-brother-left-to-toil-far-from-home.html?module=Search&mabReward=relbias%3Ar

 

An Illinois manufacturer of steel castings for the rail industry was just sued by the EEOC for allegedly violating the ADA.  The EEOC alleges that the company illegally asks job applicants if they “have a history of carpal tunnel syndrome and gives them a nerve conduction tests.”  Seehttp://www.eeoc.gov/eeoc/newsroom/release/11-20-14.cfm.

carpal tunnel : Carpal Tunnel Syndrome cartoon of a man with a sore wrist. Illustration

Although the EEOC press release does not clearly explain the company’s professed need for such questions or the nerve test, it may be assumed that the company certainly views these as job-related.

In any event, the EEOC said that “the most current relevant published medical literature does not support the use of such tests alone, or the use of prior medical history alone, to predict the development of carpal tunnel. … The result of these practices, according to the agency, was to deny employment opportunities to a class of people who had a history of carpal tunnel syndrome or who [the company] believed might develop that condition.”

Takeaway

As noted above, it is not clear to us whether there is a relationship between the job duties of this particular position and carpal tunnel syndrome.  But we may assume that the company feels that there is such a relationship, and that it is even possible that the EEOC may agree — the EEOC questioned the medical appropriateness or accuracy of the nerve test as a predictor and made no blanket statement that carpal tunnel syndrome does not prevent an employee from performing the relevant job duties with or without accommodations — as might be expected from the EEOC if that were the case.

In any event, under the ADA the EEOC has gone after employers who make stereotypical assumptions about disabilities and the ability to perform the job, i.e, the perception of disability.   Read our blog of yesterday.

Said an EEOC attorney, quite accurately summarizing the relevant provisions of the ADA:

“Employment decisions, including hiring decisions, must be based on a person’s ability to perform the job, not on stereotypes, assumptions or conjecture. An individualized assessment of the applicant’s present ability to safely perform the job duties is required if an employer screens out an applicant based on medical tests or exams in the hiring process.”