President George H.W. Bush may very well be best remembered for his role in bringing the Americans with Disabilities Act (“ADA”) to the American workplace. Bush engaged in bi-partisan leadership in working with the ADA’s chief sponsor, Sen. Tom Harkin, D-Iowa and the likes of Senators Ted Kennedy, D-Mass., Bob Dole, R-Kan.; David Durenberger, R-Minn.; and Orrin Hatch, R-Utah who were key proponents of the legislation, in seeing the legislation through to passage. Bush signed the legislation into law on July 26, 1990. Continue Reading On the Day of President Bush’s Memorial Service We Focus on His Signature Legislation; The Americans with Disabilities Act

Photo: Gonzalo Malpartida via Flickr (CC by SA 2.0)
Photo: Gonzalo Malpartida via Flickr (CC by SA 2.0)

One of the most problematic areas for employers is the balancing act which occurs between managing employee productivity and attendance while taking care not to tread on entitlement to Family and Medical Leave (“FMLA”) and Americans with Disabilities Act (“ADA”) protections.  Intermittent and unforeseeable absences are at the top of the list of challenges, and one particularly challenging issue is migraine headaches.

Individuals who suffer from migraines know they are usually 1) unpredictable and 2) debilitating.  They often result in employees calling in at the last minute, leaving work midday or being out for days at a time without notice. Continue Reading Are Employee Absences Giving You A Headache?

Employers have a new resource document to use when determining when and how to grant employees leave as a reasonable accommodation under the Americans with Disabilities Act.  The document, published by the EEOC, is entitled Employer-Provided Leave and the Americans with Disabilities Act.

The ADAstock-photo-disability-medical-message-background-health-care-poster-design-121187878 applies to employers with 15 or more employees.  It requires employers to provide disabled employees with reasonable accommodations that allow them to perform the essential functions of their jobs unless doing so would cause an undue hardship.  Reasonable accommodations may include providing employees with leave from work or modifying a company’s leave policy for an employee with a disability.

In issuing this technical assistance, the EEOC noted the increase in disability charges.  2015 hit a new high for disability discrimination claims brought before the agency.  The EEOC intends this resource document as a way to educate employers about leave as an accommodation.  For each category addressed, the EEOC provides examples or scenarios to assist employers.

As noted in its release of this document, “[o]ne troubling trend the EEOC has identified in ADA charges is the prevalence of employer policies that deny or unlawfully restrict the use of leave as a reasonable accommodation. These policies often serve as systemic barriers to the employment of workers with disabilities. They may cause many workers to be terminated who otherwise could have returned to work after obtaining needed leave without undue hardship to the employer. EEOC regulations already provide that reasonable accommodations may include leave, potentially including unpaid leave that exceeds a company’s normal leave allowances.” 

Commissioner Victoria Lipnic added, “Leave issues often present some of the toughest situations for employers and employees to deal with in our workplaces. This document provides needed one-stop guidance on how the EEOC approaches many of the common issues we see.”

The key topics addressed include:

  • Equal Access to Leave Under an Employer’s Leave Policy.  Employers must provide employees with access to leave “on the same basis as other similarly-situated employees.”  Policies may require all employees to provide documentation to substantiate the need for leave — like a doctor’s note.
  • Granting Leave as a Reasonable Accommodation.  Employers must provide employees with leave as a reasonable accommodation.  This includes providing unpaid leave to an employee with a disability so long as doing so does not create an undue hardship for the employer.  An employer is not required to provide paid leave beyond its paid leave policy.  Employers may also not penalize an employee for taking leave as a reasonable accommodation.
  • Communication after an Employee Requests Leave.  This is also referred to as the “interactive process.”  Employers must engage in the interactive process after a disabled employee requests leave, or additional leave, for a medical condition.  Employers must treat the request as a request for a reasonable accommodation.  As the EEOC explains, the interactive process is “a process designed to enable the employer to obtain relevant information to determine the feasibility of providing the leave as a reasonable accommodation without causing an undue hardship.”  At times, the employer may need more information so that it can understand the amount and type of leave, the need for leave, and whether there is a reasonable accommodation available other than leave.
  • Communication During Leave and Prior to Return to Work.  Employers should continue to engage in the interactive process if the disabled employee seeks additional leave due to a medical condition.  Employers may also ask for information from the employee as to the leave and the employee’s return to work.
  • Maximum Leave Policies.  Employers will be found in violation of the ADA if they enforce maximum leave policies.  While employers may have policies that set a maximum amount of leave the employer will allow, employers may need to grant exceptions to disabled employees and allow them additional leave beyond the maximum as a reasonable accommodation.
  • Return to Work and Reasonable Accommodation (Including Reassignment).  Employers will be found in violation of the ADA if they require employees to be 100% recovered or have no restrictions before they can return to work.  Employers should continue engaging in the interactive process if employees return to work with restrictions.  This allows discussion as to reasonable accommodations that will allow an employee to perform the essential functions of the job or consider reassignment to a vacant job position for which the employee is qualified.
  • Undue Hardship.   Employers may determine whether granting leave, or additional leave, is an undue hardship.  Factors that may be considered include impact on the employer’s operations and ability to serve customers, impact on co-workers and duties of job, whether intermittent leave is predictable or unpredictable, whether there is flexibility on when leave is taken, frequency of the leave, and amount and/or length of leave.

The EEOC’s resource document ends with citations to additional guidance on leave laws under the ADA, Family and Medical Leave Act (FMLA), and  worker’s compensation.

Companies should review their policies and procedures on leave so that they can make sure they are properly considering requests for leave by disabled employees.  Training on leave laws, leave requests, and the interactive process are also considered best practices.  Consultation with counsel is also advisable as properly considering leave or extended leave requests and documenting the interactive process may avoid liability.

Photo: Day Donaldson via Flickr (CC by 2.0)
Photo: Day Donaldson via Flickr (CC by 2.0)

The Zika Virus, an illness transmitted primarily by mosquitoes and also, less frequently, through blood transfusions and sexual contact has certainly been in the news recently.  The U.S. Centers for Disease Control (CDC) has issued travel warnings alerting people to the risk of travel to more than two dozen countries in the Caribbean and South and Central America.   More than a dozen states have reported cases of the virus.  Due to the possibility of risk of birth defects if pregnant women are infected, even female members of the U.S. Olympic Team are expressing concern about travel to Brazil this summer.

Employers are asking what precautions they can and should take to protect employees, especially those who travel to foreign locations as part of their jobs.  The warnings are certainly of concern, especially to women of child-bearing age, but it is important that employers not panic and overreact.

As with any medical issue, great care must be taken to protect the privacy and rights of employees and prospective employees.  Laws of particular import include the following:

  • Americans with Disabilities Act (ADA): The ADA prohibits an employer from requiring medical examinations of current employees absent a reasonable belief that the employee has a medical condition or disability which poses a direct threat to the employee’s own safety or the safety of others in the workplace. Due to the lack of objective evidence that the virus can be spread through casual contact, there seems to be no basis to require medical examinations.
  • Occupational Health and Safety Act (OSHA): OSHA does permit employees to refuse to perform job tasks when they have a reasonable basis to believe that there is a threat of imminent death or serious injury.  The CDC has indicated that the spread of Zika can be eliminated with appropriate precautions, even in countries affected by the virus except when the employee is pregnant.  Employees may therefore not be reasonable in asking not to be sent to affected countries.  A pregnant employee’s request of this nature, however, may be deemed a reasonable accommodation.
  • Title VII of the Civil Rights Act of 1964 (Title VII): Although an employer may want to agree to a pregnant employee’s request to be excused from travel to affected nations, it would not be a good idea for an employer to ban pregnant employees, spouses of pregnant employees or individuals planning to become pregnant from overseas travel.  The employer’s best course of action is to educate employees about the risks and then let them make their own healthcare decisions.

The best course of action for employers, especially those who have employees traveling to the Caribbean or South or Central America, is to provide education about risks and precautions to take and to refer employees to the CDC website for information. Such employers should also reinforce sick leave and FMLA policies and make sure supervisors are knowledgeable about illnesses and require sick employees to take time off from work. Finally, employers should consider allowing employees, especially those expecting children or planning to get pregnant, to opt-out of travel, at least until  more is known about the virus, its genesis and its long term affects.

When is the last time your company did a comprehensive review of its job descriptions?  Never mind; it doesn’t matter.  It’s time to do it again.

The job description is an incredibly valuable tool for an employer, and an astounding number of businesses either do not have them, do not update them,  or spend so little time on them that they are useless.  As I discussed in my June 30, 2015 blog post The Wait is Over: New FLSA Regulations Issued by DOL, the US Department of Labor issued new proposed regulations for determining whether employees meet the Executive, Administrative and Professional exemptions to the FLSA.  Although the proposed regulations address only the salary test, it is very possible that the DOL will also look at the duties tests in conjunction with this comprehensive review.  Even if the duties tests are not amended, now is an excellent time for employers to review their job descriptions and how they have classified their employees and make the appropriate changes.  Undoubtedly, almost every company will discover that at least some employees need to be reclassified and some job descriptions need to be changed.

Properly drafted and accurate job descriptions provide important evidence to justify an exempt classification in the event of a DOL audit.  In addition, job descriptions are critical documents in the following scenarios:

Performance Evaluation:  An accurate job description provides an applicant or new employee with a comprehensive description of his or her job responsibilities.  When it comes time for the annual performance evaluation or a performance discussion, it is important to have in writing the duties of the position against which performance can be measured.

ADA Accommodation Requests:  Most employers are obligated under the Americans with Disabilities Act (“ADA”) to provide reasonable accommodations to otherwise qualified disabled individuals.  An accommodation must be provided if it allows the employee to perform the essential functions of the job without causing an undue hardship to the company.  In order to determine whether that request can be fulfilled, the employer and employee must engage in an interactive process to discuss the needs of both parties.  Without a written document setting out the essential functions of the job, it is almost impossible for the employer to document how it undertook the interactive process and to justify the decision made. In the event of a discrimination claim, the job description could help provide important defenses.

Return to Work/Fitness for Duty: In order to evaluate whether an employee out on worker’s compensation leave can return on light duty or whether an employee previously on FMLA leave due to a serious health condition can return and safely perform his or her job, a medical examination is likely required.  It is critical that the examining physician be provided a comprehensive job description setting out the job requirements.

In order for a job description to be considered complete it should contain the following depending on the nature of the job:

  • Educational requirements including degrees or certifications
  • Skills and experience
  • Soft skills such as communication, empathy for others, ability to interview, need to work in a team environment or open concept space which might be noisy
  • Hours and days of work
  • Physical requirements including lifting, bending, twisting, standing
  • Amount of discretion and judgment required for the position
  • Responsibilities for managing others

The task of creating or even reviewing and updating job descriptions is arduous.  It requires the input of many:  upper management, direct supervisors, human resources and the employee who performs the job.  Perhaps even an occupational nurse should be consulted.  Although the process is time consuming and challenging, it is a critically important risk management tool to protect your business at many different levels and from many different potential challenges.

Photo: mkhmarketing via Flickr (CC by 2.0)
Photo: mkhmarketing via Flickr (CC by 2.0)

People often think of the Americans with Disabilities Act as a law that protects individuals with physical and mental disabilities from discrimination or other unfair treatment. What is seldom mentioned is that the ADA also protects the confidentiality of employee medical information, and requires that employers keep all such information confidential.

There are some exceptions that allow limited disclosure of protected medical information by employers, including when the employee voluntarily discloses his or her own medical information to co-workers. In that instance, the employee cannot claim a breach of confidentiality if their information is released to other co-workers.

This exception was recently tested in a case out of the Federal district court in Indiana called Shoun v. Best Formed Plastics, 28 F. Supp. 3d 768 (N.D. Ind. 2014). There, the employee – Shoun – alleged that his former employer violated the ADA by divulging confidential medical information to others via a posting on Facebook. Shoun was injured at work, spent months on leave recovering, and sought to collect workers’ compensation benefits as a result of the injury. While out on leave and seeking these benefits, a co-worker of Shoun’s responsible for processing his workers’ compensation claim learned of the nature and extent of his injuries.

Shoun then filed a lawsuit in federal court alleging different violations of the ADA. During the course of this lawsuit, the co-worker posted the following message on her personal Facebook page: “Isn’t [it] amazing that how Jimmy experienced a 5 way heart bypass just one month ago and is back to work, especially when you consider George Shoun’s shoulder injury kept him away from work for 11 months and now he’s trying to sue us.” Based on this posting, he alleged a new claim against the employer for violating the ADA’s confidentiality and disclosure provisions.

The employer moved to dismiss this ADA claim, arguing that Shoun voluntarily disclosed his medical condition through the original filing of his ADA lawsuit, prior to the Facebook post. The court disagreed and allowed the claim to go forward, concluding that disclosure via a court filing was not a “voluntary” disclosure that met the exception under the statute.

This decision teaches us that employers must use great caution when discussing a co-worker’s health condition on social media, or anywhere else for that matter. Training on the ADA’s confidentiality and medical information disclosure rules is especially important, given that this is an oft-overlooked part of the law. Employers need to understand that the concept of confidential medical information is broad-ranging, and includes workers’ compensation claim files, FMLA claims, reasonable accommodation requests, and other medical information related to the performance of one’s job. Such information should always be off-limits for discussion.

The US Supreme Court on March 25, 2015 decided the case of Young v. United Parcel Service, Inc.(UPS).  The issue in the case was whether, and in what circumstances, the Pregnancy Discrimination Act (PDA), 42 U.S.C. § 2000e(k), requires an employer which provides work accommodations to non-pregnant employees with work limitations to provide work accommodations to pregnant employees who are “similar in their ability or inability to work.”

Photo: TipsTimesAdmin via Flickr (CC by 2.0) - tipstimes.com
Photo: TipsTimesAdmin via Flickr (CC by 2.0) – tipstimes.com

UPS offered  a “light duty program” to workers who were injured on the job, were disabled under the Americans with Disabilities Act (ADA) or had lost their Department of Transportation certifications.  UPS, however, did not provide any such accommodations to pregnant employees who were not disabled. Young challenged the policy arguing that the PDA requires an employer to provide pregnant employees light duty work if it provides similar work to other employees in other circumstances.    

Young worked as a  part-time driver for UPS where her responsibilities included pickup and delivery of packages. She had suffered several prior miscarriages so when she became pregnant, her physician limited her to lifting 20 pounds during the first 20 weeks of her pregnancy and 10 pounds thereafter.  Her normal job requirement was that she be able to lift parcels weighing up to 70 pounds herself and 150 pounds with assistance.  UPS did not allow Young to work under this restriction resulting in her staying out of work without pay for most of her pregnancy and ultimately losing her health insurance benefits.  Young filed suit, and UPS responded by saying that other employees which had been accommodated fell within one of the three categories referenced above; and since Young did not, there had been no discrimination.

The Fourth Circuit Court of Appeals sided with UPS and ruled that: (1) the employer did not “regard” a pregnant employee as disabled under the Americans with Disabilities Act (ADA); and (2) employers are not required under the PDA to provide pregnant employees with light duty assignments so long as the employer treats pregnant employees the same as non-pregnant employees with respect to offering accommodations.  That court further referred to UPS’ policy as “pregnancy blind” showing no discriminatory animus toward pregnant workers.

The Supreme Court reversed the decision and remanded the case back to the trial court to allow Young to pursue her claim.  The Court, refusing to accept the interpretation of the PDA espoused by either party, concluded that once an individual pregnant worker like Young made a prima facie showing of discrimination “by showing actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were based on a discriminatory criterion illegal under Title VII.”  In Young’s case this meant showing that she belonged to the protected class, that she sought accommodation, that the employer did not accommodate her, but did accommodate others “similar in their ability or inability to work.”  Thereafter, the employer must justify its refusal to accommodate the employee based on “legitimate, non-discriminatory” reasons.  The fact that the accommodation might be expensive or inconvenient for the employer is not necessarily sufficient justification.  Even once the employer presents its justifications, the employee has an opportunity to show that the reasons offered are pretext for discrimination.

The Court concluded that Young had created a sufficient factual issue regarding whether UPS provided more favorable treatment to non-pregnant employees in situations which could not be distinguished from hers to allow her to take her case to a jury.

Based on this decision employers should review their policies surrounding accommodation for pregnant and non-pregnant employees to insure that there is no unjustifiable disparate treatment occurring.

Domestic and sexual violence is now in the news almost every day, and New Hampshire has followed its neighboring state, Massachusetts, in enacting protective legislation.  As of August 8, 2014 most Massachusetts employers became obligated to provide leave from work to victims of domestic violence to enable them to seek treatment, obtain restraining orders or cooperate with law enforcement.  New Hampshire has for many years provided similar protections to victims of all crimes.  Now, effective September 9, 2014 New Hampshire employers are prohibited from discriminating against victims of domestic violence in the terms and conditions of their employment.  Pursuant to RSA 275:71 it is an unlawful employment practice for an employer to refuse to hire an otherwise qualified individual because the individual is a victim of domestic violence, harassment, sexual assault, or stalking.    Businesses are also prohibited from discharging, threatening to discharge, demoting, suspending, or in any manner discriminating or retaliating against an individual with regard to promotion, compensation or other terms, conditions, or privileges of employment because the individual is a victim of domestic violence, harassment, sexual assault, or stalking.

This legislation passed earlier in 2014 in an amended format in a compromise action by the New Hampshire House and Senate.  Original versions of the bill would have required employers to provide reasonable safety accommodations which might include leaves of absence or job restructuring.  The version of the bill which passed included the prohibitions above and also established a committee to study the protection of employees from domestic violence and to report its findings and make recommendations for future legislation.

Domestic and sexual violence have gotten significant press recently whether due to off field behavior by NFL players or the activities of college students on campuses nationwide.  However, the statistics have remained fairly constant.  As long ago as 2000 the National Coalition Against Domestic Violence reported that one in every four women will experience domestic violence in her lifetime.  What that means for employers is that there are likely multiple victims of violence by an intimate partner in your workplace, and the law continues to evolve in ways which seek to enhance protections for these victims.

Employers should be mindful of this statute when they learn that workers they employ might be victims of domestic or sexual violence.  Before taking any action to discipline or terminate an employee who might be a victim, take the time to consult with counsel to make certain you are not running afoul of the many laws which provide protection to your employees.

Photo Credit: Kelly Schott via Flickr (CC by ND 2.0)

Headlines about Ray Rice and the NFL remind us all that domestic violence does not stop at the door of an employee’s home.  It is a serious crime and one that has lasting impacts on those affected by it.  This post provides guidance and information on what employers should know about domestic violence.

Domestic violence can happen to anyone, regardless of age, gender, marital status, socio-economic status, sexual orientation, or ethnicity/race.  It is a pattern of coercive behavior by one person over another.  It may include physical or sexual violence, stalking, or verbal, psychological, or economic abuse.  NH law protects persons who are victims of domestic violence.  There are also stalking and harassment laws.

When dealing with victims of domestic violence, employers should be flexible in allowing time off from work for medical treatment or court appearances.  NH requires leave for victims of crimes under the Crime Victim Leave Act, RSA 275:61-65.  Under this law, a victim of a crime may leave work to attend court or other legal or investigative proceedings associated with the prosecution of the crime.  A victim is broadly defined and includes the immediate family of any victim who is a minor or who is incompetent or the immediate family of a homicide victim.  The Act applies to employers with 25 or more employees.

Other laws may also be implicated when it comes to employees who are victims of domestic violence, such as reasonable accommodations due to a disability under the Americans with Disabilities Act (ADA) or the New Hampshire Law Against Discrimination.   (see guidance from EEOC)   Leave or intermittent leave under the Family Medical Leave Act (FMLA) may also be required.  (see guidance from US Department of Labor)  Also know that employers have a general duty to provide employees with a safe work environment and should have practices and policies in place consistent with this obligation.

No workplace is immune from the potential for workplace violence.  To be effective, companies should have a domestic violence policy, must develop a safety plan, be aware of studies of violence and domestic violence, and implement comprehensive training and educational programs for both management and employees.  Companies, on a regular basis, can make efforts to educate employees and make them aware of domestic violence.  Companies can put up posters in break or lunch rooms to let employees know where they or someone they know can reach out and seek help.  Referral to an EAP program is also an option.

An appropriate policy should include a policy statement regarding the company’s stance on domestic violence and should offer employees resources to increase their awareness of domestic violence to further reduce the impacts on the workplace.  The policy should also include a statement that violence of any kind in the workplace will not be tolerated and can lead to immediate disciplinary action up to and including termination.   Additionally, requiring an employee to inform the company when he or she obtains a retraining order from a court allows an employer to take steps to keep everyone in the workplace safe.

For organizations that do not currently have a policy addressing workplace violence prevention, more information is available through the Federal Government’s Office of Personnel Management, or for smaller businesses, through the U.S. Chamber’s Small Business Center.

Sample policies addressing domestic violence are available at the Corporate Alliance to End Partner Violence.  The NH Coalition & Crisis Management also has helpful information, which includes a list of crisis centers.  Information can also be found at the Department of Justice’s Violence Against Women division.

The Equal Employment Opportunity Commission (” EEOC”) on July 14, 2014 issued an Enforcement Guidance on Pregnancy Discrimination   The document, which was not published for public comment prior to its release, purports to provide guidance regarding the Pregnancy Discrimination Act (“PDA”) and the Americans With Disabilities Act (“ADA”) as it applies to pregnant workers.  The fact that the EEOC issued this guidance is not surprising given its inclusion of pregnancy discrimination as one of the priorities outlined in its Strategic Enforcement Plan.  This is the first such guidance issued by the EEOC since 1983.

The document is extensive and covers a number of issues. One of the primary areas of focus is likely to be the EEOC’s position that the PDA requires employers to provide reasonable accommodation to employees who have work restrictions because of pregnancy, even if the employee does not qualify as disabled or is not regarded as disabled under the ADA.  This particular issue is also the subject of acase recently accepted by the United States Supreme Court, Young v. UPS.

Other highlights of the guidance include the following:

-The PDA prohibits discrimination based on current pregnancy, past pregnancy, potential or intended  pregnancy, and medical conditions related to pregnancy or childbirth.

– Employment decisions based on a female employee’s use of contraceptives may constitute unlawful discrimination based on gender and /or pregnancy. Employers can also violate Title VII , by providing health insurance that excludes coverage of prescription contraceptives, whether the contraceptives are prescribed for birth control or for medical purposes.

– There are various circumstances in which discrimination against a female employee who is lactating or breast feeding can implicate Title VII.

– Title VII, as amended by the PDA, requires employers to provide a work environment free of harassment based on pregnancy, childbirth, or related medical conditions. Liability can result from the conduct of a supervisor, coworker or non-employee, such as a customer or business partner over whom the employer has some control.

The guidance also contains the EEOC’s recommended best practices for avoiding unlawful discrimination against pregnant workers and those otherwise covered by the PDA. For the most part, the guidance is consistent with existing law, but certain provisions, particularly those related to the use of contraceptives and providing accommodation to all pregnant employees regardless of disability status, are likely to stir up controversy and require future examination by the courts.