Category Archives: Americans with Disabilities Act

THE EMPLOYER’S GUIDE TO DEALING WITH SICK AND DISABLED WORKERS

‘Tis the season to be…sick.  I can attest to this, having just endured a particularly pernicious disease:  the dreaded and debilitating man-cold.

Over the next several months, employees throughout the country will be missing more work due to sickness.  Many of them already have a less than perfect attendance records.   Others will injure themselves at work or home or succumb to chronic and sometimes disabling diseases.

 This is the first in a short series of HR Law Insider articles targeted to help HR professionals, managers, and business owners successfully navigate two of the most common, yet difficult and misunderstood, workplace challenges:
  • Deciding when to discipline or terminate sick or disabled employees that cannot come to work or cannot do so with adequate frequency and reliability.
  • Avoiding Americans with Disabilities Act (ADA), Family Medical Leave Act (FMLA), and other claims when dealing with sick and/or potentially disabled employees.

HILL V. CITY OF PHOENIX:  WHEN GOOD IS NOT GOOD ENOUGH

Stacia Hill worked for the City of Phoenix police department. Upon returning to work in February 2012 after a lengthy medical leave, Hill advised the City she had ankle problems and a sleep disorder.  The City tried to accommodate these disabilities by assigning Hill to the Front Desk Sergeant position, which it characterized as a sedentary desk job, and by giving Hill an 8:00 a.m. to 4:00 p.m. shift, consistent with the recommendations of her sleep doctor.

Hill began arriving late and missing some days of work and her attendance worsened in April and May.  Hill’s supervisor then held a “coaching session” with Hill.  He  told Hill that he would be removing her from one of her positions in order to lighten her workload.  Hill stated that she viewed this decision as “punishment” for her previous use of approved leave.

Following this meeting,  Hill stopped reporting to work entirely on May 22.  On May 23, 2012, Hill’s psychologist drafted a two-sentence letter recommending that Hill “be placed on stress leave beginning on May 22, 2012  for an indeterminable amount of time.”  On May 31, the City sent a letter to Hill explaining that the doctor’s letter was insufficient to authorize Hill’s absence because it “failed to identify a medical condition or provide any information as to the nature of the condition, prognosis, course of treatment, symptoms, duration of the condition, or an anticipated date of return to work.” The letter requested additional information explaining why Hill was unable to work.

Around the same, the City sent Hill a letter advising her that her position required her to maintain regular and reliable attendance. Then, Hill’s doctor gave the City a letter explaining that Hill was experiencing “considerable anxiety” which had exacerbated her sleeping difficulties and depression.  He recommended that Hill not drive a vehicle, and indicated that it was “difficult [to] pinpoint when she will be able to return to duty, if ever.” Hill’s doctor then provided another letter stating that it was “difficult to say when exactly Ms. Hill can return to work,” but that it would likely be possible once her stress levels improved.

On June 26, 2012, the City sent Hill a letter requesting that she have her doctors complete a “reasonable accommodation medical questionnaire” to “clarify [her] medical conditions.” The letter also informed Hill that she had exhausted her leave time and would need to request a leave of absence if she wished to remain employed. Failure to obtain such leave, the letter warned, would constitute job abandonment.

Hill returned to work on June 28, 2012.  However, she began using unscheduled leave again on July 10th, leaving two hours early on that day, and failing to report on the 11th or 12th.  On July 13, Hill came to work but left two hours early, complaining about her ankle.  She never returned to work again.

On July 17, 2015, Hill’s doctor produced a two-sentence letter virtually identical to the one supplied on May 23rd, again recommending Hill be placed on “stress leave” for an “indeterminable amount of time.” The City responded with a letter advising Hill that her doctor’s letter was not sufficient to authorize her absence, and requesting that she provide acceptable documentation of her medical condition and contact her supervisor immediately regarding her intentions to return to work. The letter further informed Hill that failure to report to work by July 27, 2012 would be classified as job abandonment.

On July 30, 2012, the City sent Hill a letter stating that because she had not reported to work or provided acceptable medical documentation, the Department would classify her as having abandoned her job. The letter further informed Hill that the City would consider reinstating her if she could establish that her absence was due to circumstances beyond her control.

On August 7, Hill sent a letter to the Department’s Chief which stated:

“I wish to inform you that I was absent from my job only because I was instructed not to work by my doctors. If I were able to perform my job, I would be there and I’m certain the City does not want me at work if I’m unable to perform my duties….I request you reinstate me and allow me to remain on unpaid leave until I can complete the LTD application process.”

This request was denied, Hill was fired, and her EEOC claim and lawsuit soon followed.

THE COURT’S DECISION:  HILL WINS A HUGE VICTORY   

Initially, things look good for the City:  the court ruled that Hill was not able to perform the essential functions of her job in or after July 2012, and that no reasonable accommodation would have changed this fact. For this reason, it granted summary judgment and dismissed Hill’s unlawful termination claim.

However, in a big win for Hill, the court also ruled as follows, setting the stage for an expensive and risky (for the City) trial:

“It is not possible to determine … whether Hill’s condition might have stabilized, allowing her to perform the essential functions of her job going forward, had the City engaged fully in the interactive process in May and June 2012—a process that might have led to helpful accommodations. It is similarly impossible to determine as a matter of undisputed fact whether the City engaged in the interactive process in good faith during this time.”

FOLLOW THESE FOUR STEPS AND AVOID THE CITY OF PHOENIX’ FATE

Employers who fail to engage in the interactive process in good faith face ADA liability if a reasonable accommodation would have been possible.  The interactive process is an informal undertaking in which the employee and the employer attempt to identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations. There are four critical steps in the process:

(1) identifying the essential functions of the employee’s position,
(2) identifying the employee’s precise limitations,
(3) identifying potential accommodations and assessing the effectiveness of each, and
(4) implementing the accommodation that is most appropriate for both the employee and the employer.
 

An employer must participate in the interactive process upon receiving notice of the employee’s disability and desire for accommodation or in circumstances in which an employee is unable to make such a request, if the company knows of the existence of the employee’s disability.  An employer’s duty to engage in the process continues as long as the employer is aware that the initial accommodation is failing and further accommodation is needed.

The crux of the court’s decision is that the City essentially gave up too soon on trying to accommodate Hill:

“In determining whether a reasonable accommodation would have been possible, the Court considers the accommodations that were possible at the time the interactive process broke down. Thus, it is not dispositive that Hill was not a qualified individual with a disability—i.e., an individual able to perform the essential functions of her job with or without reasonable accommodation—when her employment relationship with the City ended in late July 2012. The relevant question is whether she was such an individual at the time of the City’s alleged failure to participate in May and June 2012. A reasonable jury could find that she was qualified at that time. While it is true that Hill was having trouble maintaining regular and reliable attendance in May and June, a reasonable jury could conclude that she was not fully accommodated at that time, and that she could have maintained adequate attendance if she had been granted additional accommodations (e.g., a transfer to a fully sedentary position, a 4/10 schedule) to assist with the management of her disabilities.”

THE NEXT TIME YOU HAVE A SICK OR INJURED EMPLOYEE…

Expect your conduct in accommodating — or failing to accommodate — a sick or disabled employee to be heavily scrutinized if that employee is subsequently terminated.  Months of patience and discipline can be ruined by failing to explore and document all potential accommodations to allow an employee to return to work or have additional time to recover.

Fortunately, Hill-type situations do not occur frequently.  But when they do, (1) understand the law and (2) contact experienced employment law counsel to develop and implement a plan that ensures compliance with the law, a fair shake for your employee, and that your business stays out of court.

When not battling man-colds, Art Bourque of Bourque Law Firm can be found here tackling HR, employment, and other business issues for both companies and individuals.

EEOC INTENSIFIES SCRUTINY OF WORKPLACE WELLNESS PROGRAMS

As Americans become increasingly more sedentary and less fit, workplace wellness programs offer a “win-win” solution:  companies reduce their healthcare costs and increase worker productivity; employees become more healthy and less prone to injury and disease.  What’s not to like about that?

As wellness programs proliferate, however, so too does their scrutiny by the government, principally the EEOC.  This article helps companies and wellness program administrators navigate the landmines that that may be encountered by growing government regulation and oversight.

Image result for fitness

THE EEOC IS NOT PUMPED-UP ABOUT WELLNESS PROGRAMS

This past Thursday a federal court ruled in favor of the U.S. Equal Employment Opportunity Commission (EEOC) in a disability discrimination case involving wellness programs filed against Orion Energy Systems.

In the Orion lawsuit, the EEOC argued that Orion required Wendy Schobert to submit to medical testing as part of a wellness program or pay 100 percent of the premium for the employer-provided health insurance.  The EEOC contended that this violated the Americans with Disabilities Act’s (ADA) prohibition against involuntary medical exams.  Orion, however, contended that its wellness plan was covered by the ADA’s so-called “insurance safe harbor,” and thereby was excused from ADA compliance except if it operated as a subterfuge. Orion also argued that the plan was lawful under the ADA because it was voluntary.

The district court rejected Orion’s safe harbor argument, and held that the plan was subject to ADA review. However, the court found that the wellness plan was lawful under the ADA because it concluded that the employee’s decision whether to participate was voluntary under that statute.  Nonetheless, the court decided that there were issues of fact regarding whether Schobert was fired because of her opposition to the wellness plan, and rules that the case would be set for (an expensive) trial.

John Hendrickson, the regional attorney for EEOC’s Chicago District Office, remarked that the court’s ruling “establishes that there is no easy out for employers from ADA scrutiny.”

WHERE DO WE GO FROM HERE?

Good health is a priceless commodity.  Wellness programs will continue to offer companies and employees a wealth of benefits — both to the bottom line and the bottom that sits in a chair most of the day (i.e. most of us).

As they grow, however, Companies’ wellness programs will be subject to increasing government scrutiny.  Equally so, with the Orion decision, plaintiffs’ lawyers and government agencies will be on the hunt for companies that fail to comply with the law.

For example, many employers believe that a dispute or injury involving a wellness program is “separate” from a workplace dispute or injury and not subject to HR laws.  Most of time this is not the case.  Thus, employers should treat any employee wellness issue as a workplace issue (e.g. a wellness program injury is likely to be covered by workers compensation laws).

Is this a problem?  No, not if companies and employees stay abreast of the law and work together to develop and participate in lawful wellness programs.  How can this be done?  Easily.  By consulting professionals and reading the HR Law Insider, companies and program administrators will stay current with the law.

CONCLUSION

As we near the year end, I hope you have stuck with your health and fitness goals for 2016; if so, congratulations.  But if not, consider starting now rather than waiting for another January 1 to roll around.

Start, for example, by reading motivating and informative articles and books that will provide an impetus for change.  Dr. Phil Maffetone’s  Big Book on Health and Fitness lays out a sensible and holistic road map that makes health and fitness an ingrained part of one’s lifestyle, and an easy-to-achieve goal for both men and women at any age (I have no affiliation with Dr. Maffetone other than as a huge fan).

As you are contemplating “getting after it,” be inspired by watching a movie or two from my personal top ten list of great sports movies (below).  Hold the cheese, however, as several of these movies have enough Velveeta to fill a small cheese factory.

For wellness program questions, further information on other employment law topics, or if you want to hit some weights, go for a run, or join me on a bike ride, contact Art Bourque at Bourque Law Firm.

In any event, try and start moving now — today.  Each day presents an opportunity to start anew.  As Henry David Thoreau said:  “Only that day dawns to which we are awake. There is more day to dawn. The sun is but a morning star.”

TOP 10 SPORTS MOVIES [OK, TOP 20!]

  1. Rocky
  2. Chariots of Fire
  3. The Karate Kid
  4. Field of Dreams
  5. Pumping Iron
  6. The Longest Yard
  7. Rudy
  8. Hoop Dreams
  9. Bad News Bears
  10. Slapshot
  11. When We Were Kings
  12. Touching the Void
  13. Breaking Away
  14. American Flyers
  15. The Wrestler
  16. Hoosiers
  17. The Jericho Mile
  18. Meru
  19. Remember the Titans
  20. Perfect

 

WAVE OF ADA ACCESSIBILITY LAWSUITS HITS LOCAL AND NATIONAL BUSINESSES

“How a society treats its disabled is the true measure of a civilization.”

Chen Guangcheng

Americans with Disabilities Act (ADA) lawsuits are sweeping the nation and hitting local businesses in the wallet.   In Arizona, hundreds of lawsuits have been filed this year alone alleging businesses failed to provide disabled people with access to their facilities.

This article provides businesses with a plan to avoid being on the wrong end of an unwinnable ADA lawsuit.

WHAT IS THE ADA AND HOW DID IT COME TO BE?

 On July 26, 1990, President George H.W. Bush signed into law the Americans with Disabilities Act (ADA), a comprehensive civil rights law prohibiting discrimination on the basis of disability.  The ADA broadly protects the rights of individuals with disabilities in employment, access government services, places of public accommodation, transportation, and other important areas of American life.

The ADA provides that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.”

Title III of the ADA prohibits discrimination on the basis of disability in places of public accommodation.  It covers businesses that are generally open to the public and fall into one of 12 categories listed in the ADA, such as restaurants, bars, movie theaters, schools, day care facilities, recreation facilities, and doctors’ offices.  The law requires newly constructed or altered places of public accommodation, as well as commercial facilities — privately owned, nonresidential facilities such as factories, warehouses, or office buildings — to comply with ADA standards.

On March 28, 2014, the Department of Justice (DOJ) issued a Final Rule regarding DOJ civil monetary penalties:  the maximum civil penalty for a first violation is $75,000; for a subsequent violation the maximum is $150,000.

THE UNWINNABLE LAWSUIT?

The DOJ has been aggressive in enforcing the ADA.  However, government enforcement pales in comparison to the number of private lawsuits brought by “serial” plaintiffs — those who file hundreds of lawsuits using the same lawyers.

Most lawsuits are defensible.  ADA lawsuits, however, are a special breed.  Because the law is so weighted in favor of people with disabilities and provides for an award of attorneys’ fees to prevailing plaintiffs, and given that many businesses have at least one or more areas of non-compliance, aggressively defending an ADA lawsuit is oftentimes foolhardy.  In very little time, the “tail can start wagging the dog”, meaning attorneys’ fees can mount rapidly, potentially consuming a business in a no-win quagmire.

Many businesses and individuals react emotionally when they receive an ADA lawsuit.  Rather than responding viscerally and defensively to the lawsuit, the better approach is to calmly evaluate how to resolve the matter well short of a  trial.

First, contact legal counsel with ADA experience.  Counsel without such a background have a steep learning curve, can underestimate how quickly a case can get out of hand, and will be hard-pressed to know the best path towards resolution.  Work with experienced counsel to develop a strategy to end the lawsuit and achieve ADA compliance with a minimum expenditure of money and time.

Next, decide whether your business needs to hire a professional, such as an architect or consultant, to evaluate ADA compliance.  ADA requirements can be confusing.  A qualified professional can quickly and efficiently identify areas of non-compliance in a business’s parking lot, sidewalk, and entrance pathway, and, once inside, access to various areas (e.g. tables, seating, bathrooms, counters, bars, etc.).

Unfortunately, there are some plaintiffs and plaintiff’s lawyers who will overreach.  In such instances, when settlement is impossible or impractical, it is critical to hire experienced counsel.   A small number of cases may need to be defended aggressively; the key is knowing when to do so, and then developing a strategy with a clearly defined objective and end-game.

GO WITH A PRO:  ACHIEVE COMPLIANCE AND SLEEP WELL AT NIGHT

Bourque Law Firm recently teamed with Life Quest Training & Consulting to help a business respond to an ADA lawsuit and achieve ADA compliance.

Life Quest’s owner, Nanette Odell, Ed.D., with over 30 years’ experience in the disability field, notes that ensuring compliance requires the following:

  1. A Commitment to get it done over a period of time and with planned financial resources.  Keep in mind that there are tax deductions and credits that can help.
  2. An Assessment of your current level of compliance. This can be a daunting task for a layperson as even one single use restroom can have 80 items to assess.
  3. An organized  Transition Plan to get from where you are to where you need to be.  An expert in the ADA can help lay out a plan to achieve compliance over a period of time by prioritizing what needs to be done and laying it out in simple terms.

CONCLUSION

With a proper attitude towards those struggling with disabilities, ADA compliance becomes a no-brainer.  For perspective, speak to anyone who simply desires to visit a store or enter a business but is shut-out by an easily removable barrier.

ADA compliance is also good for business:  As noted by Dr. Odell, “people with disabilities make up the fastest growing minority population in the world.  According to the U.S. Dept. of Justice, by the year 2030, 71.5 million Baby Boomers will be over the age of 65 and demanding products, services, and environments that address their age-related physical changes.  Accessibility attracts not only people with disabilities but also their families and friends. This expands the potential market exponentially!

This group has $175 billion in discretionary spending power (U.S. Dept. of Labor) so ensuring compliance is not only the law and the right thing to do but it also makes good business sense.”

NOTE:  This article addresses Title III of the ADA.  For information about Title I, which covers businesses with 15 or more employees, read here and here.

Bourque Law Firm, P.C. assists businesses and individuals on ADA matters and otherwise provides a wide array of services focused on helping companies, human resource professionals, and individuals succeed.  Art Bourque is an AV rated attorney who has been practicing employment law and commercial litigation in Arizona for 25 years.

USC’S EX-FOOTBALL COACH SUES THE SCHOOL FOR FAILING TO ACCOMODATE HIS ALCOHOLISM: DOES HE HAVE A CASE?

Yesterday, ex-USC Trojan football coach Steve Sarkasian sued the University, claiming that it discriminated against him because he is an alcoholic.

Does Coach Sarkasian have a case?  Are alcoholics protected by the Americans with Disabilities Act (ADA)?  Should employers, therefore, proceed with caution when discharging alcoholic employees?  Read on for the answers.

BIG TROUBLE AT ‘SC

Problems surfaced in August of this year when Coach Sarkasian appeared intoxicated and used inappropriate language at a pep rally.  Here is a clip of  him at the event:

Subsequently, reports surfaced that Sarkasian was drunk on the sidelines of USC’s September 26 game against Arizona State University.

On October 11, Sarkasian was placed on “indefinite leave” by USC’s Athletic Director, Pat Haden.  Less than 24 hours later he was fired:

“After careful consideration of what is in the best interest of the university and our student-athletes, I have made the decision to terminate Steve Sarkisian, effective immediately,” USC athletic director Pat Haden said in a statement.

SARKASIAN SUES USC FOR WRONGFUL TERMINATION BASED ON HIS ALCOHOLISM

Sarkasian’s lawsuit claims that USC knew he was an alcoholic and, therefore, had a duty to accommodate him:

“California law imposes a duty on USC to make reasonable accommodations for a disability, such as alcoholism, unless USC could demonstrate that doing so would have imposed an undue hardship.  Furthermore, California law imposes a duty on USC to engage in a timely, good faith, interactive process with Steve Sarkisian to determine effective and reasonable accommodations for his disability. This is particularly true since Mr. Sarkisian requested an
accommodation. USC also was required under California law to seek input from Mr. Sarkisian as to what accommodations may be needed.

USC also cannot credibly argue that Helton was incompetent to handle the team’s head coaching duties while Steve Sarkisian was on leave given that USC has now hired Helton to be the permanent Head Coach for at least the next five years.

USC also failed to engage in a timely, good-faith interactive process with Steve Sarkisian to determine an effective and reasonable accommodation. Instead, USC fired Steve Sarkisian by email less than 24 hours after placing him on leave. Had USC not withdrawn its decision, less than 24 hours after announcing it, to place Mr. Sarkisian on leave, he would have been able to obtain the treatment he needed and then return to successfully perform his essential job functions as Head Coach.”

The California law upon which Sarkasian relies mirrors the ADA.  It requires an employer to make a reasonable accommodation for a disability unless such accommodation would place an undue hardship on the employer.

ARE ALCOHOLICS PROTECTED UNDER THE ADA?

Alcoholics are indeed protected under the ADA.  The US Department of Justice provides this Q&A on the issue:

Q. Are alcoholics covered by the ADA?

A.
Yes.  While a current illegal user of drugs is not protected by the ADA if an employer acts on the basis of such use, a person who currently uses alcohol is not automatically denied protection. An alcoholic is a person with a disability and is protected by the ADA if s/he is qualified to perform the essential functions of the job. An employer may be required to provide an accommodation to an alcoholic. However, an employer can discipline, discharge or deny employment to an alcoholic whose use of alcohol adversely affects job performance or conduct. An employer also may prohibit the use of alcohol in the workplace and can require that employees not be under the influence of alcohol.

The Equal Employment Opportunity Commission’s (EEOC’s) Technical Assistance Manual provides: “A person who currently uses alcohol is not automatically denied protection simply because of the alcohol use. An alcoholic is a person with a disability under the ADA and may be entitled to consideration of accommodation, if s/he is qualified to perform the essential functions of a job. However, an employer may discipline, discharge or deny employment to an alcoholic whose use of alcohol adversely affects job performance or conduct to the extent that s/he is not ‘qualified.’ ”

CONCLUSION

Does the Sarkasian case instruct us that employers cannot terminate alcoholics?  No.

Employers may prohibit the use or possession of drugs and alcohol in the workplace and require that employees not be under the influence of alcohol or drugs in the workplace.  Thus, if an alcoholic or non-alcoholic employee is violating work rules relating to the use or possession of alcohol, that employee may be terminated.

What an employer cannot do is terminate an alcoholic employee on the basis of his/her disease or fail to reasonably accommodate an alcoholic, when such accommodation does not impose an undue burden on the employer.

How will the Sarkasian case play out?  It will most likely settle.  There is a lot at stake, bad publicity all the way around, and Trojan Nation will likely want to move on.  For the time being, USC has issued this statement:

“Much of what is stated in the lawsuit … is patently untrue … The record will show that Mr. Sarkisian repeatedly denied to university officials that he had a problem with alcohol, never asked for time off to get help and resisted university efforts to provide him with help.”

Art Bourque has guided businesses and individuals in various HR matters, including alcohol and substance abuse incidents.  Contact Mr. Bourque with any questions regarding these or other employment issues.

EEOC CREAMS DUNKIN’ DONUTS: EMPLOYER LESSONS FROM THE DONUT MAKER’S $151,000 PAYMENT IN ADA CASE

A company which operates Dunkin’ Donuts stores at Baltimore-Washington International Airport (BWI) will pay $151,000 and furnish significant equitable relief to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced yesterday.

DUNKIN DONUTS TELLS DISABLED EMPLOYEE IT’S NO LONGER TIME TO MAKE THE DONUTS — AND PAYS FOR IT

According to her lawsuit, Joan McMahon O’Donnell successfully performed her job duties as a regional manager at the company’s BWI Dunkin’ Donuts locations.  After O’Donnell was diagnosed with breast cancer and requested unpaid leave for surgery, chemotherapy and radiation treatment, Dunkin’ Donuts refused to provide a reasonable accommodation and instead abruptly discharged her because of her disability, EEOC charged.

Such alleged conduct violates the Americans with Disabilities Act (ADA).  The EEOC thus filed suit after first attempting to reach a pre-litigation settlement through its conciliation process.

Dunkin Donuts decided the risk of a trial was too great.  In addition agreeing to pay $151,000 in monetary relief to O’Donnell, it entered into a two-year consent decree prohibiting OHM from engaging in any future disability discrimination. OHM will also implement a new attendance policy which includes a provision for requesting reasonable accommodations for employees with disabilities. The restaurant will provide annual ADA training to all supervisors, managers and human resources employees. OHM will also post a notice about the settlement and will report to EEOC about how it handled any internal complaints of alleged disability discrimination.

THE EOOC IS GROWING MORE ACTIVE AND VOCAL WHEN IT COMES TO ADA VIOLATIONS

“Providing a leave of absence for an employee who needs medical treatment related to a disability is not only the decent thing to do – it is required by federal law unless the employer can show it would pose an undue hardship,” said EEOC Philadelphia District Director Spencer H. Lewis, Jr.

EEOC Regional Attorney Debra M. Lawrence added, “This settlement fairly compensates Ms. O’Donnell for her losses. Equally important, the consent decree contains equitable relief, including training and monitoring provisions, designed to ensure that employees with disabilities get reasonable accommodations if needed.”

LESSONS FOR EMPLOYERS

Any time an employer is confronted with an employee that may need medical leave or some other accommodation to help with a serious medical condition, it should evaluate and determine whether it is complying with the ADA (and, for companies 50 employees or more, the Family Medical Leave Act).

Dunkin’ Donuts failed miserably to do this according to the EEOC:  “Dunkin’ Donuts refused to provide a reasonable accommodation and instead abruptly discharged her because of her disability.”

The process of deciding on whether a reasonable accommodation is possible and practical is oftentimes difficult.  There is often great friction between the employee’s medical needs and the employer’s legitimate business needs.

If a requested accommodation poses an “undue burden” on the employer – if it is not objectively reasonable because it will pose too great a burden on the business — the employer is not required to provide that accommodation.  Any time an employer refuses an accommodation on the basis that it would create an undue burden, it should know that its decision may be scrutinized by the EEOC and, ultimately, by a jury.

In sum, when making a decision as to whether to accommodate a sick employee, (1) know that the ADA requires an accommodation unless it would impose an undue burden; (2) maintain openness and flexibility in enforcing leave and other policies; and (3) consult with counsel to ensure that you are making a decision that, if tested, is fully supportable.

Art Bourque has guided businesses and individuals in various ADA and FMLA matters.  He has defended and brought claims under both federal statutes.  Contact Mr. Bourque with any questions regarding ADA, FMLA, or other employment or human resource issues.

ADA LEAVE FOLLOW-UP: TUCSON TRUCKING COMPANY PAYS $300,000 TO SETTLE EEOC LAWSUIT

Last week the HR Law Insider warned businesses about the risk of large damage awards arising from the illegal enforcement of medical leave policies.  Just yesterday, a large Tucson trucking company experienced that risk in real time — agreeing to pay $300,000 and furnish other relief to settle a disability discrimination lawsuit filed by EEOC.

According to EEOC, trucking company CTI denied requests for unpaid leave beyond 12 weeks and transfers into open positions for which disabled employees were qualified.

For example, the EEOC charged that CTI discriminated against Elizabeth Barr because of her disability. CTI employed Barr as a payroll and billing clerk from November 2002 until August 2010. Barr suffered from a rare eye disease that substantially limited her eyesight, and she needed multiple surgeries to correct her eyesight. Barr took leave under the Family Medical Leave Act (FMLA). Prior to the expiration of her FMLA leave, CTI wrote her a letter informing her that if her doctor did not release her to “full, unrestricted duty” by the time her FMLA leave expired, her employment and benefits might be terminated. Barr asked CTI for additional time to recover, but CTI denied her re­quests, refused to explore possible accommoda­tions, and terminated her on the day her FMLA leave expired.

Such alleged conduct violates the ADA.   Accordingly, the EEOC sued CTI.

In addition to the settlement requiring CTI to pay $300,000 to several disabled employees, CTI also must take the following actions:

  • hire a neutral, outside consultant to ensure compliance with the ADA;
  • eliminate its policy of requiring employees to return to work with no medical restrictions;
  • eliminate its policy of not considering leaves of absence, extended time off, light duty or reassignment as reasonable accommodations for individuals with disa­bil­ities;
  • every six months for five years, report to the EEOC on compliance;
  • train all its employees, including president, vice president, and human resources manager, on the ADA each year for five years;
  • give Barr and other aggrieved individuals an apology and positive letter of reference;
  • make job offers to the aggrieved individuals and Barr if there are job openings; and
  • institute an evaluation system for supervisors and managers regarding their compliance with EEO laws.

“Employers should know they violate the law when they have blanket policies requiring disabled employees not to return to work until they are 100% healed,” said EEOC Phoenix Regional Attorney Mary Jo O’Neill. “Such employers violate the ADA because they fail to conduct individual­ized assessments to explore reasonable accommodations that may allow disabled employees to return to work. Employers also violate the ADA when they have inflexible, rigid policies limiting unpaid leave to 12 weeks. Again, employers have an obligation beyond the FMLA to provide unpaid leave as a reasonable accommodation unless to do so would result in an undue hardship to the employer.”

EEOC District Director Rayford O. Irvin added, “Employers must grant employees with disabilities reasonable accommodations including leaves of absence, time off, light duty and reassignment -absent undue hardship. And they also must conduct fact-specific individualized evaluations when deciding a proposed accommodation is indeed an undue hardship rather than simply relying on assumptions or beliefs.”

DOES YOUR MEDICAL LEAVE POLICY COMPLY WITH THE AMERICANS WITH DISABILITIES ACT?

Employers often implement and enforce medical leave policies in a rigid manner that does not comply with the Americans with Disabilities Act (ADA).  Such practices expose employers to claims of discrimination and to substantial damage awards.

This HR Law Insider article presents a recent example of an employer that tried to enforce a medical leave policy only to learn — the hard way — that it was violating federal law.

On Monday, the EEOC announced that  healthcare provider Dialysis Clinic, Inc. agreed to pay $190,000 to a former employee with breast cancer and furnish other relief to settle a federal disability discrimination lawsuit filed by the EEOC.  It was alleged that the dialysis clinic violated the ADA law by firing and then refusing to rehire a long-time nurse who needed more medical leave to complete her treatment for breast cancer.

DIALYSIS CLINIC MAKES A CLASSIC MISTAKE AND PAYS FOR IT

Francisca Lee had worked as a nurse at the Dialysis Clinic’s Sacramento Southgate location for 14 years when she took medical leave for mastectomy surgery and chemotherapy treatments.  After four months, Dialysis Clinic notified Lee by mail that she was being terminated for exceeding the time limit dictated by its medical leave policy, the EEOC said.  This was done despite Lee being on approved medical leave and cleared by her doctor to return to work without restrictions in less than two months.  Lee was told that she would have to reapply for open positions. However, when Lee did apply two months later, she was rejected, and, not long after, Dialysis Clinic hired a newly licensed nurse.

After an investigation by EEOC investigator Monica Colunga and after attempting to resolve the case through pre-litigation conciliation efforts, EEOC sued Dialysis Clinic.

EEOC San Francisco Acting Regional Attorney Jonathan Peck said, “Ms. Lee was a long-term employee who only needed two more months to recover and return to work.  Extending her medical leave would have posed little burden on Dialysis Clinic. Employers with inflexible leave policies lose the opportunity to help a valued employee return to work – and they’re violating the law.”

THE ADA REQUIRES FLEXIBILITY IN APPLYING LEAVE POLICIES AND OTHER TERMS AND CONDITIONS OF EMPLYMENT

Terminating a qualified employee because of a disability violates the ADA.  The law  requires an employer to provide reasonable accommodation to an employee or job applicant with a disability, unless doing so would impose an undue hardship for the employer.  Providing an extended medical leave can be a reasonable accommodation.

According to the consent decree settling the suit, Dialysis Clinic agreed to pay $190,000 in damages; revise its policies concerning reasonable accommodation; provide anti-discrimination training to human resources personnel; and post notices regarding the lawsuit. In addition, the employer will periodically report to the EEOC on its handling of extended medical leave requests.

“As a nurse, you understand that sometimes the healing process takes time,” said Lee. “I am pleased to know that Dialysis Clinic will now take steps to ensure that employees can take the time they need for medical reasons without having to worry about losing their jobs.”

CONCLUSION

Any time an employer is confronted with an employee that may need medical leave or some other accommodation to help with a serious medical condition, it should evaluate and determine whether it is complying with the ADA (and, for companies 50 employees or more, the Family Medical Leave Act).

The process of deciding on whether a reasonable accommodation is possible and practical is oftentimes difficult.  There is often great friction between the employee’s medical needs and the employer’s legitimate business needs.

If a requested accommodation poses an “undue burden” on the employer –if it is not objectively reasonable because it will pose too great a burden on the business — the employer is not required to provide that accommodation.  Any time an employer refuses an accommodation on the basis that it would create an undue burden, it should know that its decision may be scrutinized by the EEOC and, ultimately, by a jury.

In sum, when making a decision as to whether to accommodate a sick employee, (1) know that the ADA requires an accommodation unless it would impose an undue burden; (2) maintain openness and flexibility in enforcing leave and other policies; and (3) consult with counsel to ensure that you are making a decision that, if tested, is fully supportable.

PS  October is breast cancer awareness month.  Hopefully, through our collective efforts, this terrible disease will soon be eradicated.

THE LUFTHANSA DISASTER: HOW WELL DO YOU KNOW YOUR EMPLOYEES?

28 year-old Andreas Lubitz had a “deliberate desire to destroy the plane. He … refused to open the door of the cockpit to the pilot and deliberately began the descent of the plane.” Lubitz, according to the prosecutor who uttered those words, is the sole cause of the Lufthansa disaster that is dominating today’s news.

A mother of Lubitz’ schoolmate said today that Lubitz had told her daughter he had taken a break from his pilot training because he was suffering from depression.  “Apparently he had a burnout, he was in depression,” the woman, whom the paper did not name.  She said her daughter had seen him again just before Christmas and that he had appeared normal. She added he was a “lovely boy.” “He had a good family background,” she told the paper.

Did Lufthansa know that its young pilot had mental problems?  If not, should it have known?  And what can Lufthansa, or any employer, do when it suspects or knows an employee has mental problems?

This HR Law Insider edition discusses (1) evaluating job applicants thru personality tests and (2) how to handle job applicants and employees with depression and other major mental issues.

PERSONALITY TESTING OF JOB APPLICANTS IS WIDESPREAD AND COMMON — AND UNDER EEOC INVESTIGATION

According to a recent Wall Street Journal article, workers who apply online at RadioShack Corp. must say if they agree with the statement: “Over the course of the day, I can experience many mood changes.” Lowe’s Cos. asks job seekers if they “believe that others have good intentions.” A test at McDonald’s Corp. said: “If something very bad happens, it takes some time before I feel happy again.”

According to the Journal, “the use of online personality tests by employers has surged in the past decade as they try to streamline the hiring process, especially for customer-service jobs. Such tests are used to assess the personality, skills, cognitive abilities and other traits of 60% to 70% of prospective workers in the U.S., up from 30% to 40% about five years ago, estimates Josh Bersin, principal of consulting firm Bersin by Deloitte, a unit of auditor Deloitte LLP.”

However, the authors note that the Equal Employment Opportunity commission is investigating whether personality tests discriminate against people with disabilities. As part of the investigation, officials are trying to determine if the tests shut out people suffering from mental illnesses such as depression or bipolar disorder, even if they have the right skills for the job, according to EEOC documents.

EEOC officials won’t comment on the investigation, according to the Journal, who quotes Christopher Kuczynski, EEOC acting associate legal counsel on the topic: “if a person’s results are affected by the fact that they have an impairment and the results are used to exclude the person from a job, the employer needs to defend their use of the test even if the test was lawful and administered correctly,” says Christopher Kuczynski, EEOC acting associate legal counsel.

Businesses can continue to conduct widespread personality testing.  However, companies should closely monitor any developments in the area of personality testing. Certain types of testing could be rendered illegal overnight by one court ruling.

IS IT LAWFUL TO TEST JOB APPLICANTS OR EMPLOYEES FOR DEPRESSION AND OTHER MAJOR MENTAL DISORDERS?

Major depressive disorder is the leading cause of disability among adults 15 to 44 years old, affecting nearly 7 percent of adults in the U.S. each year, according to the National Institute of Mental Health. Depression causes an estimated $23 billion in lost productivity in the U.S. each year.

The EEOC provides the following guidance for employers dealing with psychiatric disabilities, including depression:

May an employer ask questions on a job application about history of
treatment of mental illness, hospitalization, or the existence of mental
or emotional illness or psychiatric disability?

No.  An employer may not ask questions that are likely to elicit
information about a disability before making an offer of employment.
Questions on a job application about psychiatric disability or mental or
emotional illness or about treatment are likely to elicit information
about a psychiatric disability and therefore are prohibited before an
offer of employment is made.

When may an employer lawfully ask an individual about a psychiatric
disability under the ADA?

An employer may ask for disability-related information, including
information about psychiatric disability, only in the following limited
circumstances:

Application Stage:  Employers are prohibited from asking
disability-related questions before making an offer of employment.  An
exception, however, is if an applicant asks for reasonable accommodation
for the hiring process.  If the need for this accommodation is not
obvious, an employer may ask an applicant for reasonable documentation
about his/her disability.  The employer may require the applicant to
provide documentation from an appropriate professional concerning his/her
disability and functional limitations.  A variety of health professionals
may provide such documentation regarding psychiatric disabilities
including primary health care professionals, psychiatrists,
psychologists, psychiatric nurses, and licensed mental health
professionals such as licensed clinical social workers and licensed
professional counselors.

An employer should make clear to the applicant why it is requesting such
information, i.e., to verify the existence of a disability and the need
for an accommodation.  Furthermore, the employer may request only
information necessary to accomplish these limited purposes.

Example A:  An applicant for a secretarial job asks to take a
typing test in a quiet location rather than in a busy reception area
“because of a medical condition.”  The employer may make
disability-related inquiries at this point because the applicant’s need
for reasonable accommodation under the ADA is not obvious based on the
statement that an accommodation is needed “because of a medical
condition.”  Specifically, the employer may ask the applicant to provide
documentation showing that she has an impairment that substantially limits
a major life activity and that she needs to take the typing test in a
quiet location because of disability-related functional limitations.

Although an employer may not ask an applicant if s/he will need reasonable
accommodation for the job, there is an exception if the employer could
reasonably believe, before making a job offer, that the applicant will
need accommodation to perform the functions of the job.  For an individual
with a non-visible disability, this may occur if the individual
voluntarily discloses his/her disability or if s/he voluntarily tells the
employer that s/he needs reasonable accommodation to perform the job.  The  employer may then ask certain limited questions, specifically:

  • whether the applicant needs reasonable accommodation; and
  • what type of reasonable accommodation would be needed to
    perform the functions of the job.

Post-offer of employment:  After an  employer extends an offer of employment, the employer may require a  medical examination (including a psychiatric examination) or ask questions  related to disability (including questions about psychiatric disability) if the employer subjects all entering employees in the same job category  to the same inquiries or examinations regardless of disability.  The  inquiries and examinations do not need to be related to the job.

During employment:  During employment, employers may test when a disability-related inquiry or medical  examination of an employee is “job-related and consistent with business  necessity.” This requirement may be met when an employer has a  reasonable belief, based on objective evidence, that: (1) an employee’s  ability to perform essential job functions will be impaired by a medical  condition; or (2) an employee will pose a direct threat due to a medical  condition.  Thus, for example, inquiries or medical examinations are permitted if they follow-up on a request for reasonable accommodation when  the need for accommodation is not obvious, or if they address reasonable concerns about whether an individual is fit to perform essential functions  of his/her position.  In addition, inquiries or examinations are permitted  if they are required by another Federal law or regulation. In these  situations, the inquiries or examinations must not exceed the scope of the  specific medical condition and its effect on the employee’s ability, with
or without reasonable accommodation, to perform essential job functions or
to work without posing a direct threat.

Example B:  A delivery person does not learn the route he is
required to take when he makes deliveries in a particular neighborhood.
He often does not deliver items at all or delivers them to the wrong
address.  He is not adequately performing his essential function of making
deliveries.  There is no indication, however, that his failure to learn
his route is related in any way to a medical condition.  Because the
employer does not have a reasonable belief, based on objective evidence,
that this individual’s ability to perform his essential job function is
impaired by a medical condition, a medical examination (including a
psychiatric examination) or disability-related inquiries would not be
job-related and consistent with business necessity.

Example C:  A limousine service knows that one of its best
drivers has bipolar disorder and had a manic episode last year, which
started when he was driving a group of diplomats to around-the-clock
meetings.  During the manic episode, the chauffeur engaged in behavior
that posed a direct threat to himself and others (he repeatedly drove a
company limousine in a reckless manner).  After a short leave of absence,
he returned to work and to his usual high level of performance.  The
limousine service now wants to assign him to drive several business
executives who may begin around-the-clock labor negotiations during the
next several weeks.  The employer is concerned, however, that this will
trigger another manic episode and that, as a result, the employee will
drive recklessly and pose a significant risk of substantial harm to
himself and others.  There is no indication that the employee’s condition
has changed in the last year, or that his manic episode last year was not
precipitated by the assignment to drive to around-the-clock meetings.  The
employer may make disability-related inquiries, or require a medical
examination, because it has a reasonable belief, based on objective
evidence, that the employee will pose a direct threat to himself or others
due to a medical condition.

Example D:  An employee with depression seeks to return to
work after a leave of absence during which she was hospitalized and her
medication was adjusted.  Her employer may request a fitness-for-duty
examination because it has a reasonable belief, based on the employee’s
hospitalization and medication adjustment, that her ability to perform
essential job functions may continue to be impaired by a medical
condition.  This examination, however, must be limited to the effect of
her depression on her ability, with or without reasonable accommodation,
to perform essential job functions.  Inquiries about her entire
psychiatric history or about the details of her therapy sessions would,
for example, exceed this limited scope.

CONCLUSION
Who was Andreas Lubitz?  The coming hours and days will reveal many truths.  These truths will, in turn, lead to much finger pointing and two critical questions:  (1) how could this disaster have been avoided and (2) how can future such disasters be avoided?

Most every business will encounter employees with mental disorders.  Psychiatric problems are — sadly and sometimes tragically — all too frequent.  It is hoped that this article will assist employers in navigating the oftentimes very rough seas associated with mental health problems.

 

 

LEAVES OF ABSENCE: WHAT EVERY EMPLOYER AND HR PROFESSIONAL NEED TO KNOW

When and under what circumstances to allow ill or disabled employees to take leaves of absence sometimes bedevils business owners and human resource professionals. However, with knowledge and planning, dealing with employee absences can be relatively straightforward and simple. This edition of the HR Law Insider addresses the most common situations that arise and how to deal with them.

THE MOST COMMON TYPES OF LEAVE: EMPLOYEES WITH MENTAL OR PHYSICAL PROBLEMS

Below are five common examples of employee problems that trigger leave of absence requests. Here’s how to deal with them:

(1) Broken arm, flu, or similar temporary injury or illness: typically, employers allow leave or sick time for employees to deal with broken bones, the flu, and similar maladies. There is no legal requirement to allow such leave or time off. HOWEVER, once an employer does allow such leave, it should apply its policy consistently and in accordance with its employee handbook. This will eliminate the potential for viable discrimination claims based on alleged unfair treatment.

I have defended (and sometimes prosecuted) numerous discrimination claims involving, among other groups, minority, pregnant, and older workers. The inconsistent application of a leave policy — for example, allowing a 25 year old white male leave, while denying leave to a similarly situated older minority worker — is a common trigger for such claims.  To defend this type of discrimination claim, a company must come forward with a bona fide business reason as to why it seemingly favored one employee over another — why it allowed one worker to take a leave while it fired the other for not coming to work.

(2) Mental disorder, such as OCD, depression, or bipolar disorder: a serious mental disorder may require an employer with 15 or more employees to make a reasonable accommodation for the employee under the Americans with Disabilities Act (ADA). A reasonable accommodation might include the granting of a leave of absence.

(3) Chronically bad back, cancer, or other chronic physical disability: an employee with a chronically bad, cancer, or other serious physical disability may have the same rights to leave as the employee with a serious mental disorder. Each situation must be evaluated carefully and on its own merits (or lack thereof). Part of the evaluation may include obtaining information from the employee’s health care provider to verify the employee’s condition and, later, to determine whether the employee is fit to return to work.

(4) Pregnancy: as strange as it sounds, in the eyes of the law a “normal” pregnancy is viewed the same as a broken arm or the flu for purposes of granting leave requests. For example, if a male employee with a broken arm is provided with four weeks’ leave, but a pregnant employee is subsequently denied leave because the employer says it “doesn’t give time off,” the latter could credibly argue that the employer has violated the Pregnancy Discrimination Act (PDA). The PDA prohibits discrimination against pregnant employees and provides that such employees shall be treated no worse than other “injured” employees that have been provided leave during an injury.

A pregnancy with serious complications may trigger application of the ADA and/or FMLA as well as the PDA. If applicable, the FMLA would require the employer to provide leave of up to 12 weeks, while the ADA might require a leave of absence or other accommodation to allow the employee to continue employment.

(5) Spouse or child of employee has serious illness: For employers with over 50 employees, an employee with  a family member with a serious physical or mental problem may trigger a leave requirement of up to 12 weeks under the Family Medical Leave Act (FMLA).

IMPORTANT NOTE: Many employers fail to consider that their particular city, county, and/or municipality may also have a law(s) concerning mandatory leave. This is the exception to the rule — most do not. However, businesses should always ask counsel whether their local jurisdiction requires employee leave separate and apart from any federal or state requirements.

Understand, there are any number of employee issues that may trigger discretionary or mandatory leaves of absence. When in doubt, be consistent. Equally important, contact legal counsel if there is any concern about, or potential for, a discrimination lawsuit or other claim.

“GO TO” LIST OF TYPES OF LEAVE

The next time your business faces a potential leave of absence issue, review the following list to see if any of the following may apply:

     MANDATORY TYPES OF LEAVE

  • FMLA
  • ADA
  • PDA (see example above)
  • Military
  • Jury duty
  • Voting
  • Possible religious accommodation
  • Crime victims (under certain circumstances)

     DISCRETIONARY TYPES OF LEAVE

  • Vacation/PTO
  • Bereavement
  • Sick leave (non-ADA, FMLA, etc.)
  • Maternity/paternity (non-ADA, FMLA, etc.)
  • Holiday
  • Personal reasons

CONCLUSION: IDENTIFY THE TYPE OF LEAVE AT ISSUE, KNOW THE LAW, AND BE CONSISTENT 

Handling potential leave situations is relatively straightforward: identify the type of leave at issue, know the law and whether leave is mandatory or discretionary, and be consistent.

Long employee absences sometimes pose significant problems for employers — lost production, administrative burdens, etc.   Granting a leave often requires a great degree of patience and discipline. Exercising these virtues will assure that your business complies with the law and reduces the risk of employee lawsuits.