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EEOC Updates Informal Guidance for Employers in Handling Cancer, Diabetes, Epilepsy and Intellectual Disabilities Under the Americans with Disabilties Act


On May 15, 2013, the Equal Employment Opportunity Commission (EEOC) issued updates to four informal “Question and Answer” guidance documents relating to protections against disability discrimination under the Americans with Disabilities Act (ADA). Each of the guidance documents, which are available on the EEOC’s website, focuses on a different condition (cancer, diabetes, epilepsy and intellectual disabilities) and, according to the EEOC, reflect changes made by the ADA Amendments Act relevant to these four specific conditions.

I am pleased to share with you our recent Client Alert on the EEOC's guidance documents,  

http://www.duanemorris.com/alerts/EEOC_informal_guidance_employers_cancer_diabetes_epilepsy_intellectual_disabilities_ADA_4894.html.

The Client Alert summarizes the guidance documents, including the types of reasonable accommodations the EEOC suggests should be considered by employers in working with employees with cancer, diabetes, epilepsy and intellectual disabilities.

This blog should not be construed as legal advice, as establishing an attorney-client relationship or as pertaining to factual situations.

 
 
 
 

Telecommuting is Not Just a Work-Life Balance Issue, It is An ADA Accommodation Issue for Employers


In the last few weeks, many of you have probably been keeping tabs on the continuing debate on telecommuting and work-life balance, with Yahoo's Marissa Mayer and Facebook’s Sheryl Sandberg weighing in on the issue.  

Employers must consider, of course, the employee relations aspects of flexible work arrangements.  Balancing business needs and supporting employees seeking a better balance is no small task.  

However, there is another important legal angle, with respect to flexible work arrangements, employers must consider.  This relates to an employer’s obligation to provide such arrangements as a reasonable accommodation under the Americans with Disabilities Act (ADA).   

The EEOC takes the position that flexible work arrangements are a form of reasonable accommodation that an employer may have to provide to disabled employees.  See EEOC’s Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, October 17, 2002, http://www.eeoc.gov/policy/docs/accommodation.html#N_101_ 

However, courts evaluating an employee’s request to work from home have reached different conclusions as to whether it constitutes a reasonable accommodation.  In a recent federal court decision, an employer’s decision to deny a telecommuting arrangement was upheld and found not to violate the ADA. 

In EEOC v. Ford Motor Company, a Michigan federal court agreed with employer Ford that a telecommuting arrangement under the particular circumstances in that case was too impractical and that it did not need to offer the arrangement to an employee as an accommodation.  No. 11-13742 (E.D. Mich. 2012).  In its complaint, the EEOC alleged that Ford violated the ADA when it refused to let an employee participate in its telecommuting program as a reasonable accommodation for her gastro-intestinal condition, placed her on a “performance enhancement plan,” and discharged her only months after she complained about being denied an accommodation.  

In granting Ford’s motion for summary judgment, the court first reasoned that the employee, who had a pattern of excessive absenteeism, was not a “qualified individual” under the ADA because she was absent more often than she was at work and “basic attendance is a requirement of most jobs.”   

The EEOC argued that attendance was not an essential function of the employee’s job as a resale buyer because she could perform the essential functions of her position from home.  Although the employee professed that she could do the job from home via the phone and the computer, the employer disputed this assertion, noting that her request to work from home for up to 4 days per week was untenable because she needed to have face to face contact with buyers and sellers, visit supplier sites and engage in problem solving meetings on short notice.  The employer argued that her frequent, unpredictable absences from work negatively impacted her performance and increased the workload for colleagues.  The court deferred to the employer’s reasoned business judgment over the employee’s personal opinion and found that the resale buyer position did not lend itself to frequent, unpredictable workdays out of the office.  

Employers seeking to argue that telecommuting is not a reasonable accommodation under the ADA should examine some of the factors considered in EEOC v. Ford Motor Company 

  • Does the job description as well as the actual job responsibilities demonstrate that the position requires regular, face to face contact?  
  • Will the employee’s lack of physical absence in the office prevent the employee from satisfactorily completing certain tasks?  
  • Will the employee be able to adequately supervise subordinates from home?  
  • Will the employee’s absence from work negatively impact the job responsibilities of others?   

    Of course, an employer must always engage in the interactive process with an employee seeking an accommodation and must consider alternate accommodations even where the employee’s requested accommodation, such as telecommuting, proves untenable.  While the employer in EEOC v. Ford Motor Company was successful, it was due to the employer’s ability to show it had conducted an individualized assessment of the person’s position and the reasonableness of the requested accommodation.    

    This blog should not be construed as legal advice, as pertaining to specific factual situations or as establishing an atttorney-client relationship.

     

     

 
 
 
 

Significant ADA Settlements Continue to Highlight Potential Exposure for Employers Seeking to Implement Maximum Leave Policies


Two recent settlements in cases filed by the Equal Employment Opportunity Commission (“EEOC”) highlight the continued risks associated with employers’ maximum leave policies as well as employer practices of requiring too much information from an employee to support a request for use of paid medical/sick leave.

 

EEOC v. Dillard’s, Inc.

 

 

In 2008, the EEOC filed a lawsuit against Dillard’s Inc., a national retail chain, alleging that its medical leave of absence policy violated the ADA insofar as it required employees to disclose personal and confidential medical information in order to be approved for sick leave and called for the automatic termination of employees whose medical/sick leave extended beyond the maximum amount of time allowed under the FMLA.  EEOC v. Dillard’s, Inc., No. 08-1780 (S.D. Cal. 2008).  The lawsuit alleged that Dillard’s Inc. maintained a policy that in order for an employee to utilize medical/sick leave, the employee was required to disclose the exact nature of the medical condition. 

 

According to an EEOC press release dated December 18, 2012, Dillard’s Inc. entered into a three-year consent decree requiring it to pay $2 million to identified victims and establish a class fund for unidentified victims of its unlawful law policy.  Dillard’s Inc. is also required to hire a consultant to review and revise its policy, provide training to supervisors and staff on ADA compliance and develop a centralized tracking system for employee complaints of disability discrimination

 

EEOC v. Interstate Distribution Co.

 

Interstate Distribution Company (“Interstate”) resolved its dispute with the EEOC over its maximum leave policy for an even greater amount -- $4.85 million.  Specifically, in the suit against Interstate, the EEOC alleged that its maximum leave policy, which resulted in the automatic termination of employees whose leave extended beyond twelve weeks without consideration of reasonable accommodations which might enable the employee to return, ran afoul of the ADA.  The settlement reached also extends beyond monetary penalties and includes, among other things, an injunction prohibiting Interstate from engaging in discrimination or retaliation on the basis of disability, a mandate that Interstate revise its policies to comply with the ADA and include reasonable accommodations and a mandate that Interstate provide mandatory periodic training on the ADA to its employees.  EEOC v. Interstate Distribution Co., No. 12-2591 (D. Col. 2012).

 

As has been previously reported, (See, Duane Morris Institute, ADA Compliance Blog at http://blogs.duanemorrisinstitute.com/adacompliance/), the EEOC continues to challenge employer leaves of absence policies containing maximum leave provisions, as well as policies which require employees to identify the specific nature and extent of a disability it order to utilize employer-provided paid leave time such as sick days.

 

To reduce the likelihood of similar challenges, employers should implement the following policy changes:

 

·  Employer sick leave policies should be reviewed to ensure that they do not require an employee to specify the specific nature and extent of a medical condition in order to utilize typically-provided paid sick leave. 


 

·  If an employer maintains a policy providing for a fixed leave period (e.g., 12 months of leave in a rolling 12 month period), the employer must include an explicit statement in the policy that an employee may be eligible for leave as a reasonable accommodation, even if the employee is not eligible for or has exhausted the company-provided leave. Similarly, the employer must also include a statement that in the event an employee is not eligible for or has exhausted FMLA leave, the employee may still be eligible for leave as a reasonable accommodation.

 

·  Managers and supervisors must be trained to notify human resources of all leave or time-off requests to ensure that the employer is timely engaging in the interactive process. 

 

·  If an employer maintains a no-fault attendance policy, it should ensure that it does not "charge," and thus discipline, an employee for absences that are covered by the FMLA or for conditions that qualify as "disabilities" under the ADA.

 

·  Employers should eliminate all statements from leave and attendance policies stipulating that an employee must be able to return on full capacity, without restrictions, in order to return to work.

 

·  Employers should implement a practice of communicating with employees, in advance of and in anticipation of their return-to-work date, to confirm when they are returning and whether they will be requiring any additional accommodations, such as additional leave.

 

 
 
 
 

EEOC Continues to Target Inflexible Leaves-of-Absence, Attendance Policies


Over the last few years, the EEOC has challenged employer leaves of absence and attendance policies.  

The EEOC is critical of employer policies providing for inflexible, fixed leave periods as well as policies requiring an employee to be able to return to work at full capacity after a leave of absence. 

The EEOC's view that such policies violate the Americans With Disabilities Act has resulted in significant settlements, with large financial liabilities for employers.

My recent article on the EEOC's focus on employer leaves of absence and attendance policies,
first published in the Legal  Intelligencer,  
http://www.duanemorris.com/articles/eeoc_continues_target_inflexible_leaves_of_absence_attendance_policies_4220.html 
reviews recent EEOC settlements as well as outlines specific revisions for revamping your organization's leaves of absence and attendance policies and protocols. 

 

 
 
 
 

The Unintended Adverse Consequences of the ADA


When I was in college, I had an incredible professor who used to talk about the “unanticipated evil consequences of virtuous social action.” I had no idea what he meant but he sounded so regal that I wrote down what he said every time until it become indelibly etched in my mind.

I heard my professor’s voice when I read the EEOC’s new regulations on the ADA as amended. While the ADA is indeed virtuous social action, it is now even riskier than before to try to help an employee whom you suspect has a physical or mental problem unless he or she asks for help first and here’s why.

By way of background,  a disability is a physical or mental impairment that substantially limits one or more “major life activities.”  An employer cannot discriminate on the basis of: (i) current disability; (ii) past disability or (iii) perceived (regarded as) disability.

Perhaps the biggest expansion of the definition of disability relates to the “regarded as” disability prong.  More specifically, the law now provides that an individual may be regarded as having a disability if he or she is subject to adverse action because of an actual or perceived physical or mental impairment, regardless of whether the impairment limits or is perceived to limit a major life activity.

This is a very easy standard to meet. Indeed, in its new regulation, the EEOC all but invites individuals to bring claims under the “regarded as” prong without having to prove that the individual actually has or had an actual disability as defined by the ADA. And, here’s where the  unintended adverse consequences come into play.

Assume an employee’s performance is declining and you see what you believe to be is clinical depression based on personal experience or exposure.  Ask the person if they are depressed and their depression may lift when they realize that they now may have a viable “regarded as” disability claim if they subsequently are subject to an adverse employment action. The well-intended question creates an issue of fact for the jury as to what was the employer’s true motivation for the adverse action.

Employers need to train their managers to focus on performance or behavioral deficiencies without inquiring or speculating as to whether there is a physical or mental cause. This counsel is particularly important for health care and social service employers whose managers “know” that, at times, the workplace issue is but a symptom of some underlying physical or mental problem.

What should the manager do if the employee responds to counseling, discipline or an evaluation by disclosing a physical or mental accommodation? Stay tuned for my next blog!  

This blog should not be construed as legal advice or as pertaining to specific factual situations

 
 
 
 

EEOC Issues Final Regulations Implementing ADA Amendments Act


Last week, the Equal Employment Opportunity Commission (EEOC) issued final regulations implementing the ADA Amendments Act of 2008 (ADAAA).  The regulations will be effective May 24, 2011.   An extensive analysis of the final regulations has been published by Duane Morris and is available at the following link:
http://www.duanemorris.com/alerts/EEOC_final_regulations_ADA_ADAAA_4008.html 
 

Webinar on ADA Amendments Act – The Final Regulations

On April 12, 2011, the Duane Morris Institute is presenting a one-hour webinar on "ADA Amendments Act—The Final Regulations," reviewing the significant provisions of the final regulations and the EEOC's interpretative guidance that was provided in conjunction with the final regulations. The Webinar will also review best-practices to limit risks of discrimination and failure-to-accommodate claims.  

 
 
 
 

EEOC Issues Final Regulations Under ADA Amendments Act


This morning, the Equal Employment Opportunity Commission issued final regulations implementing the ADA Amendments Act.  

As you will recall, the ADA Amendments Act went into effect on Jan. 1, 2009.  The Act provides that whether an individual’s impairment is a disability should be construed “broadly.”  The Act also significantly expands the definition of what it means to be
“regarded as” disabled. 
The long-awaited final regulations set forth principles to guide the determination of whether an individual meets these definitions. 

 

The final regulations will be published in the Federal Register on Friday.  An advance copy of the final regulations, accompanying Question and Answer documents and a fact sheet are available on the EEOC website at http://www.eeoc.gov/laws/statutes/adaaa_info.cfm

An extensive analysis will be provided by Duane Morris and posted on this blog at the beginning of next week. 

 

 

 
 
 
 
 

ADA Compliance

Insight on disability discrimination legal developments and employer obligations to reasonably accommodate disabled individuals under the Americans with Disabilities Act from the Duane Morris lawyers.

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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.