A federal appeals court has ruled that for purposes of assessing/providing accommodations under the Americans with Disabilities Act, employers must consider that attendance at the job may not mean physical presence at a specific place. The case involved an employee who asked to work from home when needed to accommodate her irritable bowel syndrome. The employer had allowed others to work at home, but not as frequently as was anticipated for the plaintiff/employee. The employer said that due to teamwork needs, physical attendance was an essential job function. The trial court agreed with the employer. The appeals court disagreed, however, and sent the case back for a jury trial. The appeals court said there was evidence that the plaintiff’s job could be adequately done from home and use of technology (e.g. Skype) could satisfy teamwork needs. The lesson? Employers who plan to insist on physical presence when denying an employee’s work-from-home accommodation request will have to prove that presence at work by technology will not work just as well.
June 26, 2014
May 22, 2014
The Equal Employment Opportunity Commission (EEOC) filed suit (for the fourth time!) against the nationwide auto parts retailer, AutoZone, for disability discrimination. This time its attendance policy which uses a “points” system for absences, did not permit any general exception for disability-related absences. Its policy required termination for employees reaching twelve points.
The complaint included an example of an employee with Type 2 diabetes who had to leave work early on occasion because of insulin reactions. The employee was fired because of an accumulation of attendance points. Another employee was fired in retaliation for objecting to the attendance policy and filing a charge with the EEOC.
The three other disability claims were described as follows:
1) Failure to promote a visually impaired employee and denying permission to use a guide dog; Employee awarded $140,000.
2) Refusal to accommodate a sales manager’s disability by insisting he mop floors, leading to greater injury; Employee awarded $424,000.
3) Refusal to accommodate a lifting restriction, fired the employee; Proceeding to jury trial.
The EEOC takes all discrimination and retaliation claims very seriously, which common sense would dictate that an employer should do the same. Conducting a self-audit of policies to ensure they are in compliance with the law and are not discriminating toward any individual or protected class of individuals should be a high priority in most organizations. As you can see from AutoZone’s examples, one charge is too much – four, well . . . .
July 26, 2013
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.
October 17, 2012
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.
June 11, 2012
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.
April 27, 2012
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.
March 16, 2012
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.
March 12, 2012
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.
February 23, 2012
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.”
February 21, 2012
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.