Signed into law July 26, 1990, the Americans with Disabilities Act (ADA) turns 23 today! The ADA provides civil rights protections to individuals with disabilities ensuring equal opportunity in employment, public accommodations, public transportation, state and local government services, and telecommunications.
The current text of the ADA includes changes made by the ADA Amendments Act of 2008, which became effective on January 1, 2009. Another of the ADA regulations includes its ADA Standards for Accessible Design providing disabled individuals more physical freedom to access buildings, work sites, housing, transportation, and other places previously inaccessible to them.
Employers will find this website especially helpful for guidance on workplace accommodations for disabled employees and applicants, as well as programs to help them affirmatively recruit disabled individuals.
Check out the Disability.gov website that provides comprehensive information on disability programs and services in communities nationwide.
On September 19, 2012, a bill was introduced to help protect pregnant women’s rights in the workplace. What? You say there already is a law like that? Well, not quite!
Back in 1978, The Pregnancy Discrimination Act, an amendment to Title VII of the Civil Rights Act, was passed with the intent to protect women from discrimination due to “pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions.” It was made a part of the Civil Rights Act because it protects against sex discrimination, covered by that law. The Pregnancy Discrimination Act required equal treatment in employment for pregnant women. This meant that all policies that were applied to other non-pregnant employees should be equally applied to the pregnant employee. The law also said that an employer could not refuse to hire a pregnant woman on the basis of her pregnancy or any condition relating to it. And, it went further yet. Pregnant women were to be afforded equal health insurance benefits for all her pregnancy related expenses as with other medical conditions. However, pregnancy has never been considered a disability. . . until possibly now.
The bill mentioned above that was introduced by Sen. Robert Casey, Jr. (D-PA) proposes that pregnant women be given the same workplace accommodations that are afforded to persons with disabilities. The Pregnant Workers Fairness Act (PWFA) would require an employer to make “reasonable accommodations” as required by the Americans with Disabilities Act (ADA) for a pregnant employee, to allow them to perform the essential functions of their job.
If this bill passes, it will bring great relief to pregnant women who once feared disclosing their pregnancy to their employer for fear of being involuntarily transferred to another position, placed on unpaid leave, or even losing her job. It would permit a woman to have minor modifications to her job duties that would allow her to work as long as possible in her pregnancy without worrying about harm to herself or her unborn child. These minor adjustments could be as simple as an offer of light duty or even providing a chair in which to occasionally sit, when standing or walking is the norm. Affording such reasonable accommodations would also give the expectant mother a measure of economic security, knowing her pregnancy will not jeopardize her employment. The National Women’s Law Center reports that women make up half the workforce, so this bill, if it becomes law, will be a step in the right direction to keep the economy strong.
Keep your eye on this one because opposition is strong. Republicans who oppose this bill argue that it will bring lower profits and undue hardship on businesses. See the full text of the bill here.
This month we are blogging about the EEOC. I don’t think we could have picked a subject that has more media attention than this one. In one news feed this morning, there were four articles with “EEOC” in the headlines. One would think with all the attention, the number of cases would be decreasing as we more awareness of discrimination is created. That, however, doesn’t seem to be the case. As written in my blog on June 6, the number of cases reported has increased for three years in a row.
So what exactly does the EEOC enforce? In most cases, it is nothing new. In fact, most of them have been in force for years and, in some cases, decades. The most recent law is the Genetic Information Nondiscrimination Act of 2008 (GINA). Below are the other laws enforced by the EEOC:
- Title VII of the Civil Rights Act of 1964 (Title VII)
- The Pregnancy Discrimination Act (Amendment to Title VII in 1978)
- The Equal Pay Act of 1963 (EPA)
- The Age Discrimination in Employment Act of 1967 (ADEA)
- Title I of the Americans with Disabilities Act of 1990 (ADA)
- Sections 102 and 103 of the Civil Rights Act of 1991
- Sections 501 and 505 of the Rehabilitation Act of 1973
Stay tuned to future blogs as we explore each of the laws above, including what the EEOC’s requirements regarding compliance include.
The U.S. Equal Employment Opportunity Commission (EEOC) just issued revised enforcement guidance on the consideration of arrest and conviction records in employment decisions under Title VII of the Civil Rights Act of 1964. While it appears the guidance will tighten the criminal background screening process, employers will retain their right to consider criminal reports.
While SHRM has not fully reviewed today’s guidance, we are concerned that the EEOC guidance may conflict with state law requirements that employers must conduct criminal background checks on certain positions, such as health and child care employees and police officers. The guidance will apparently encourage (but will not require) employers to conduct an “individualized assessment” of the position in question. Furthermore, the guidance will not prohibit job applications that have a “check the box” for disclosing prior convictions (depending on how they are used). However, such boxes on applications may run afoul of the new guidance if they are used as a blanket screening tool on job applicants.
The Equal Employment Opportunity Commission (EEOC) has issued a new guidance for employers regarding the interplay between the ADA Amendments Act (ADAAA) and the Uniformed Services Employment and Reemployment Rights Act (USERRA). The guidance explains how protections for veterans with service-related disabilities differ under the ADAAA and USERRA, and how employers can prevent disability-based discrimination and provide reasonable accommodations. You can read the new guidance here: http://www.eeoc.gov/eeoc/publications/ada_veterans_employers.cfm.
I am not a gambling person, but I do have one item I would consider betting on. And that would be the “most disliked function” within the HR profession. I would be willing to bet a cup of coffee that one of the top five – make that top three – disliked functions would be writing job descriptions. In most organizations I have worked at, this is the task that continuously gets shifted to the bottom of the pile. It commonly gets pushed below reviewing resumes and even dealing with difficult employee relations issues.
Is this because job descriptions just aren’t important? Or are they a low priority for the company? Not necessarily. My personal belief is that job descriptions, when completed accurately, are a time-consuming and often cumbersome process. However, when I would start a new position, one of the best ways for me to learn about the company and employees was to conduct job evaluations and review job descriptions.
There are, of course, many other reasons job descriptions are important. Assuming your job descriptions are accurate and up-to-date, they are great tools to review to see if an employee is measuring up to the duties as described in the job description. Many of these duties can also be expanded on to include as performance goals.
Job descriptions can be used to comply with laws such as the ADA. By identifying the essential functions of a position within a job description, an employer is certainly in a much better position to defend an ADA claim than if essential duties are not defined. Job descriptions and determining essential functions are defined in this EEOC website: www.eeoc.gov/facts/ada17.html.
And don’t forget the value of having job descriptions when reviewing training and development of employees. By reviewing the specific requirements of a particular position, you can see what kind of training would be most beneficial to each position in your organization.
Although these reasons may not make the actual task of completing job descriptions any easier, they certainly may help you understand why job descriptions are important. I”d be willing to bet that you won”t regret having good job descriptions in place. And remember, HRN Performance Solutions can help your organization with its job description needs.
None of us want to believe our employees have taken advantage of our attendance policy. We seek to demonstrate flexibility with our employees and encourage a healthy balance with work and life. As hard as we try, it’s natural to be concerned: Careerbuilder’s latest annual survey shows that at least three in 10 employees have called in sick to work with a fake excuse in the last year.
While some employees are all too ready to share their unusual reasons for using sick leave – from a headache caused by attending too many garage sales to accidentally drinking anti-freeze – employers must be cautious when requesting documentation for sick leave.
The federal district court in California recently ruled that the Dillard’s retail chain violated the Americans with Disabilities Act (ADA) with its attendance policy. The chain’s policy stated that any employee who missed more than four days per year unexcused was subject to termination, and employees were required to submit a doctor’s note that identified the underlying cause of their condition in order for the absence to be excused.
The subject in this case was an employee who was absent from work due to an illness for six days. She provided her manager with a note from the doctor that stated she was to remain off work for the week, and could return the following week. The manager would not accept the note because it did not identify the underlying reason for the absence. The employee refused to provide any more information, and was supported by her doctor. She was terminated for absenteeism.
The Court ruled that Dillard’s policy was unlawful because it permitted managers and the company to conduct inquiries related to disability in violation of the ADA. Dillard’s argued it was a business necessity to require more detail in order to verify the legitimacy of excused absences. The court rejected Dillard’s arguments, stating that it did not need to know the reason for the medical absence. Prior to the case, Dillard’s had already amended their policy to remove the requirement of disclosure of specific medical conditions.
Best practice for employers:
- When requesting a doctor’s note to support sick leave absences, outline a standard number of days after which you will require a note, such as three days. The doctor’s note should only state the employee is under care by the doctor and the date he or she may return to work.
- When a supervisor receives notification that an employee is sick, advise them to limit questions to those that relate specifically to the employee’s ability to perform his or her job responsibilities. Even innocuous questions regarding an illness and those stated out of concern can be construed as discriminatory by a court.
Employment law attorney Abizer Zanzi has further opinion as to why this case is so significant:
“First, it is one of few opinions interpreting the ADA’s prohibition on disability-related inquiries. As the court noted in its decision, only two federal circuits—not including the Seventh Circuit (which covers Illinois)—have addressed this issue in depth. As previously reported, recent legislative and regulatory amendments expanding the definition of “disability” are expected to result in many more ADA cases being decided on the merits. Second, the fact that the EEOC chose to prosecute this case reflects the agency’s current enforcement priorities, which are heavily focused on disability claims.”
Careerbuilder Survey: Are Employees Sick – or Do They Have The 9-to-5 Bug?
EEOC v. Dillard’s
EEOC Announces Strategic Plan for FY 2012-2016
Employment law fascinates me. I’ve never felt that I wanted to argue in front of a judge and other attorneys about it, but I admit: I spend lots and lots of time thinking about it. I receive many email newsletters, but the ones I look at first always have employment law stories at the top. I also enjoy reading the Equal Employment Opportunity Commission’s (EEOC) so-called informal discussion letters. These letters, and subsequent question and answer documents, are provided to help employers interpret the many ins and outs of employment law.
The latest question and answer document is intended to clarify an informal discussion letter issued by the EEOC last November. The letter addressed whether a requiring a high school diploma had a disparate impact on individuals with disabilities. The letter itself is not a new law or reinterpretation; rather, these letters are issued in an attempt to address questions about the law. As with most documents issued by government, it’s not surprising that many employers found the guidelines confusing.
Here are some of the takeaways from the Q & A document:
- Employers are not prohibited from issuing a requirement that a job applicant have a high school diploma.
- Individuals without high school diplomas are not covered by the Americans with Disabilities Act (ADA) for that fact alone. The ADA protects individuals who are not able to obtain a high school diploma because of their disability.
- Employers, as always, should select the most qualified person for the job; they are not required to give preference to an individual with a disability.
- Employers may request documentation of the disability as it relates to the individual’s inability to obtain a high school diploma.
Best practices for employers:
- Review job descriptions – Determine whether or not you want to include the requirement of an individual to have a high school diploma on every job in your organization on the description. There are many jobs in which a high school education is not necessary to perform essential functions.
- For jobs that do require a high school diploma – Proactively review the job to determine ways that an individual could demonstrate proficiency and ability to perform those duties. Consider past positions and job previews as well.
Placing high value on diversity in the workplace is an undeniable best practice in any company. Most businesses know that tax credits exist – both federal and state – for companies who hire people with disabilities. Until recently, however, it was a challenge to determine the monetary value of those tax incentives. An online resource, called Hire Gauge, was launched in September in an effort to show the true incentive in hiring people with disabilities.
Think Beyond the Label is a public-private partnership that advocates to increase employment for people with disabilities. Users launch the free tool from their site and input their state and basic company information. Based on answers to a short questionnaire, businesses can quickly see the aggregate tax credits and incentives they could receive for each new hire with a disability.
Consider this example company with more than 30 employees in the California IT industry (more than $1 million in revenue annually): Federal Worker Opportunities Credit, Architectural Barrier Removal Tax Deduction, savings of hiring through a vocational rehabilitation program, and credit for hiring a veteran with a service-connected disability (VA reimbursement). The company is eligible for about $49,300 in total savings. That figure is almost enough to pay the employee’s first year salary ($60,000). If you”re concerned about the cost of making accommodations, research shows you shouldn”t be. Over half of all accommodations cost less than $500 to implement, and most are no-cost.
When the questionnaire is completed, you can share your results on Twitter, Facebook, or by email to spread the word. There are also informative state-specific links for more information. The biggest benefit to this resource is seeing all of the numbers added up together. Users can also find resources such as best practices for sourcing qualified workers and a tax incentives tip sheet.
Join me, and make the pledge to think beyond the label.
For as long as employers have required drug tests, there have been drug users who have tried to beat them, or avoid them all together. Have you heard the excuse that the individual can’t urinate on cue?
Before you dismiss this person as a drug user trying to get out of taking the test, take note: in a response to a citizen’s letter, the EEOC indicated this situation could constitute a need for accommodation under the Americans with Disabilities Act (ADAAA). The condition in question – Paruresis – is commonly known as Shy Bladder Syndrome. A person afflicted with this anxiety disorder is unable to urinate in public places or in close proximity to others.
Under the ADA, an individual has a disability if a physical or mental impairment substantially limits one or more major life activities. With the recent amendment, it is significantly easier for an individual to meet this standard.
There are certainly individuals who have Shy Bladder Syndrome. There are also certainly individuals who would say they have it in order to get out of a urine drug test. So, what can you do?
Jonathan Segal, who blogs for the Duane Morris Institute suggests establishing drug-testing policy that states when an individual is unable to provide a urine specimen for testing, he or she must undergo a hair specimen test as an alternative.
The big picture message here is to be aware as an employer of your responsibilities under the ADAAA. The goal in the process is not to determine whether the employee has a disability; it is to have a dialog with the employee to accommodate their needs.
From an interview with Segal:
“Regardless of whether someone’s depression rises to the level of a disability, make a reasonable accommodation. It’s not the end of the world. A lot of times that’s good business, to try to help an employee without getting into an overly legalistic approach. It’s really important for employers to make it clear that they’re making the accommodation without making a determination of whether there’s a disability.”
For more, read Segal’s blog here and Don Tennant’s blog . Also, read the “informal” letter from the EEOC here.