When a law, such as the ADA, restricts an employer’s rights to take reasonable, measured steps to promote workplace safety, it ought to be re-examined.  Years ago, Justice Souter observed that preventing employers from considering "risk to self," an ADA rule many disability rights advocates had sought, would have put the ADA at "loggerheads" with federal OSHA policy requiring employers to ensure the safety of  "each" and "every" worker.  Chevron USA, Inc. v. Echazabal, 536 U.S. 73, 85 (2002).

I have always thought that to be the case with the EEOC’s exceedingly narrow interpretation of the ADA rule that employee medical inquiries be "job-related and consistent with business necessity." As interpreted by the EEOC, that requirement invalidates employee medical evaluations or monitoring that are either: a) not grounded in individualized, fact-based concerns about an employee’s ability to perform essential job functions safely and successfully; or b) required by federal law or regulation.  In its Enforcement Guidance on Disability-Related Inquiries and Medical Examination of Employees under the ADA, the EEOC says periodic testing and medical monitoring of employees would be permissible in positions affecting public safety; but the Guidance limits those positions to firefighters and those involved in law enforcement and security.  It also narrowly construes the permissible breadth of such evaluations.  In an informal opinion letter issued on September 10, 2004, the EEOC declined to apply the exception to off-shore oil workers. Recent events in the Gulf illustrate the dangerous nature of oil rig work, as well as the impact on public safety should operations go awry.  

The Labor and Employment Law Blog reports that a California federal district court granted summary judgment in May to a security officer terminated after he refused to complete a medical questionnaire.  The court found the employer’s inquiries in the questionnaire were too broad to meet the ADA’s standard of being "job-related and consistent with business necessity."  In thinking about the decision, I couldn’t help but wonder whether a more narrowly tailored inquiry would be acceptable to the EEOC in most cases (perhaps in the case at hand, Scott v. Napolitano, a more narrowly-tailored questionnaire would have received EEOC approval because, as noted above, the EEOC seems to be okay with allowing narrowly-tailored monitoring of at least some security personnel).

It’s time to give greater consideration to the very real safety risks employees face everyday, and the moral and financial hazards employers face if they do not have effective tools to address them.  The EEOC’s presumption that  employers use employee medical information to discriminate is not as employee friendly as some might think.  Yes, some employers might misuse employee medical information but the ADA,  and state and local law, provide ample deterrence and remedies for doing so.  And the inability of employers to take reasonable, measured steps to proactively identify employee medical risks has its costs. Just ask yourself, what’s a worse outcome for an employee –being the victim of disability discrimination (for which he/she has a remedy) or suffering a potentially career or life-ending workplace injury?  

I say it’s in the vast majority of employees’ interests to interpret this ADA provision more broadly — to allow employers to verify an employee’s physical or mental ability to perform essential job functions safely and hold them accountable if they misuse or abuse that right.  The EEOC has the ability to interpret the standard of "job-related and consistent with business necessity" broader than it has to date.  It’s time to do so … let’s put an end to ADA-OSHA "loggerheads."   

 

A no-fault attendance program is the epitome of equal treatment—the employer does not judge whether an absence is for a good or bad reason and gives all employees the same number of absences.

But then the FMLA came along and guaranteed eligible employees certain time off and prohibited an employer from interfering with that entitlement. Employers with no-fault programs responded with somewhat of an oxymoronic anomaly—everyone still gets the same number of absences but absences covered by the FMLA do not count.

As the Seventh Circuit’s recent decision in Bailey v. Pregis Innovative Packaging, Inc. illustrates, merely adding the FMLA exception does not insulate a policy from an FMLA challenge. Under Pregis’ policy, an employee received a point for each non-FMLA absence and the point was removed after 12 months of work. The plaintiff claimed that since FMLA leave is not included in calculating the 12 months of work, the policy retaliates against FMLA-leave takers because it takes longer for them to “wipe the slate clean” than it would take for a non-FMLA-leave takers.

The Seventh Circuit affirmed the district court’s rejection of the plaintiff’s argument. The FMLA states that taking leave “shall not result in the loss of any employment benefit accrued prior to the date on which the leave commenced” but the FMLA does not entitle an employee to the “accrual of any…employment benefits during any period of leave.” Judge Posner concluded that “wiping a point off the absenteeism slate” is “an employment benefit” but that it does not accrue until 12 months after an absence. “Absenteeism forgiveness,” like seniority, is a reward for working, he said. 

          All employers with no-fault attendance policies should heed the messages from this case—just excepting FMLA-covered absences from the policy does not insulate the policy from challenge, and any aspects of the policy that might be construed as adversely affecting FMLA-leave takers must be for the purpose of rewarding employees for their commitment to work, and not punishing employees for taking FMLA leave.

 

The reminders of the FMLA challenges facing multi-state employers in complying with state leave laws are frequent and the risk grows regularly. This time, the challenge came from Connecticut. Connecticut’s Family and Medical Leave Act (CFMLA) applies to employers with 75 employees. Is that 75 employees in-state or nationwide?   

In 2001, the state Department of Labor, which enforces the law, held that only in-state employees are counted to determine whether an employer has 75 employees. On May 14, 2010, in Velez v. Patricia Mayfield, a Superior Court held that the DOL’s view was not reasonable, and that there are no geographic limitations in counting employees under the CFMLA. As a result, multi-state employers with less than 75 employees in Connecticut—those with even a single employee in Connecticut–but more than 75 total employees must comply with the CFMLA for its in-state employees. And compliance is not just a matter of adding “Connecticut” to your federal policy. CFEPA varies significantly from the federal FMLA. For example, it has different forms, different eligibility requirements, grants eligible employees 16 weeks of leave every 24 months, does not have a small worksite exception, does not recognize the “key employee” exception and prohibits consideration of CFMLA time in determining whether an employee is eligible for a bonus, to name just a few.

What’s a multi-state employer to do? To manage risk, constant vigilance and on-the-ground resources are required. Monitoring new state laws is not enough. The challenge here came from a Connecticut trial court. And there’s no way to predict where the next challenge will come from.

 

As the ADA’s 20th anniversary nears, let’s revisit one of its lofty goals: to place a sweeping federal blanket over the patchwork of state and federal laws that protects individuals with disabilities.

A recent Second Circuit opinion leaves no doubt that the patchwork lives on  In Spiegel v. Schulmann, decided on May 6, 2010, a karate instructor claimed his employer fired him because he was obese due to a medical condition. According to the decision, he weighed 300 pounds and his employer told him that he was not be a good role model due to his weight.

The plaintiff sued for disability discrimination under the ADA, the New York State Human Rights  Law, and the New York City Human Rights Law.  The Second Circuit affirmed summary judgment for the employer on the ADA claim. The district court had held that even if obesity were an impairment under the ADA, plaintiff did not produce any evidence to suggest his obesity makes him “unable to perform a major life activity or significantly restricts the condition, manner or duration in which he can perform a major life activity.”  

The New York Human Rights Law protects those with conditions which prevent “the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques,“ a definition broader than the ADA’s. The Second Circuit affirmed summary judgment for the employer on the state claim, holding that weight is not a “disability” under that law unless the plaintiff produced evidence that he was medically incapable of meeting the employer’s weight requirements, which the plaintiff here did not produce.  

The New York City Human Rights Law’s definition of “disability” is even broader than the state’s, defining disability as “any physical, medical, mental or psychological impairment” of any system of the body. Since no state appellate court has decided whether obesity is a disability under the NYCHRL, the Second Circuit remanded the case to make this determination. 

One termination, three disability laws, three “disability” definitions and three different analyses…. sounds like the patchwork is alive and well. Employers assessing disability discrimination risk must consider all pieces of this patchwork to identify state and local laws offering broader protection than the ADA..

 Many reasonable accommodation cases are resolved in court but a court is not usually the defendant. But such was the case when a court reporter sued the Office of the Chief Judges of various Illinois circuit courts for failing to accommodate her incontinence. 

In Gratzl v Office of the Chief Judges of the 12th, 18th, 19th and 22nd Judicial Circuits, decided on April 7, 2010, the plaintiff had suffered from incontinence since approximately 1991. When the OCJ hired her in 2001, they agreed in writing that she would work in the control room only, a position which was compatible with her medical condition. Five years later, the chief judge decided that, to evenly distribute the workload, all court reporters must rotate through all courtrooms, including the control room.

The plaintiff asked that she be allowed to continue working in the control room only as an accommodation. Her doctor told the court that she needed access to a restroom on a moment’s notice. In response, the court proposed that she not be assigned to any courtrooms in which a trial was scheduled or to juvenile courtrooms, which were farther from the restrooms, and that she use a “high sign” to signal the judge that she needed a break. Plaintiff rejected all of these  offers and continued to request to work in the control room only, arguing that such an assignment was feasible because she had had it previously, that other courts have specialists assigned to the control room only, and that her using the “high sign” would be embarrassing.

The Seventh Circuit affirmed summary judgment for the OCJ on plaintiff’s ADA and Rehabilitation Act claims, holding that she was not a qualified individual with a disability because she was “unable to sit in the courtroom during proceedings without disrupting court”  and that her “control room only” request was not a request for a reasonable accommodation.  The court rejected the plaintiff’s “circular” argument that she is qualified for her current job because she was qualified for her previous job with different essential functions. The court said an employer need not maintain a position or structure that, for legitimate reasons, it no longer believes is appropriate and may change an employee’s essential functions.

This case illustrates numerous “reasonable accommodation” principles employers must master.  Presented with a request for a reasonable accommodation, the court engaged appropriately in the “interactive dialogue” to explore options, and offered a series of accommodations which would have enabled plaintiff to perform her responsibilities despite her medical condition. A plaintiff who rejects such accommodations and merely insists on her preferred accommodation is not a qualified individual with a disability and loses the protection of the ADA.

 Talk about a reasonable accommodation challenge. What is an employer to do when its accommodation of one employee’s medical condition triggers another employee’s medical condition? The New York Times reported recently that the City of Indianapolis faced such a situation recently and is now facing an EEOC “failure to accommodate” charge. 

According to the Times article, a City employee has a very severe reaction to paprika, so severe that she almost died a few years ago from eating chili with paprika in it, had to leave work early when a co-worker was eating buffalo wings containing paprika, had been to the emergency room five times in the past five years for allergic reactions to paprika, and had injected herself with an anti-allergy injection 11 times in the last few years. Concerned about a fatal attack, the employee obtained a dog trained to detect paprika and the City gave her permission to bring the dog to work.

You guessed it. The first day the dog came to work, another City employee who is allergic to dogs had an asthma attack.  According to the article, the City revoked permission for the dog to come to work, which led to the failure to accommodate charge.

So, one employee needs the service dog as an accommodation while another needs the service dog removed as an accommodation. Which accommodation should the employer grant? While general guidelines for conducting the interactive dialogue to search for an accommodation can be gleaned from various court decisions,  dealing with incompatible requests for accommodation requests is somewhat unique. You can be sure that Congress never contemplated that possibility when it created an employer’s duty to reasonably accommodate an employee’s disability. . .

Watch for a continued focus on medical leaves at the EEOC since President Obama’s recent recess appointments have extensive backgrounds on leave issues. The EEOC has been challenging employers’ “inflexible” leave policies which, the EEOC alleges, do not appropriately consider the ADA’s reasonable accommodation requirements. 

Newly-sworn-in EEOC Commissioner Chai Feldblum, a former Georgetown University Law Professor has been in the vanguard in drafting and negotiating the Americans with Disabilities Act and the 2009 Americans with Disabilities Act Amendments Act. A significant aspect of the ADA requires employers to provide disabled employees a reasonable accommodation, which could include providing leaves of absence. While at Georgetown, Feldblum was the Co-Director of Workplace Flexibility 2010 , a public policy initiative which advocates for flexible work arrangements, including time off.

Another recently sworn-in EEOC Commissioner is former U.S. Assistant Secretary of Labor Victoria Lipnic, who was Assistant Secretary of Labor for Employment Standards at the DOL from 2002 to 2009. During her tenure, the DOL proposed revised FMLA regulations, evaluated comments on that proposal and issued final revised regulations, which went into effect in January 2009. The FMLA entitles eligible employees to time off from work and these regulations define the parameters of that entitlement.

The appointments of Ms. Feldblum and Ms. Lipnic, with their combined “leave” backgrounds, naturally create anticipation that they will provide insight into the sticky issues that lie at the intersection of the ADA and FMLA. While the EEOC’s guidance on the interaction of these two laws issued in 2000 still has relevance, the ADA Amendments Act and revised FMLA regulations have created additional “interaction” challenges for employers. We look forward to their insight.

The Centers for Disease Control reported recently that tobacco use is the single most preventable cause of death and disease in the United States, causing about 443,000 deaths annually. The report adds that for every person who dies from tobacco use, another 20 have at least one tobacco-related illness.

The report claims that “implementing smoke-free policies” has, in conjunction with other efforts, proven to “significantly reduce tobacco use.” But what are the legal parameters of such a “smoke-free” policy?

Many employers have offered smokers assistance in quitting and have imposed “smoker surcharges” on medical premiums. Some have banned smoking on their premises, forcing employees to leave company property (as compared to congregating outside of the building) to have a smoke or chew.

And some employers have taken the next step and have adopted “smoker free” workplace policies and simply refuse to employ smokers. This type of policy received nationwide publicity a few years ago when a Michigan benefit consulting firm adopted a smoker free workplace policy.

The legal challenges to these smoker-free workplace policies have already begun and are likely to increase. In the past 25 years, 29 states and the District of Columbia have singled out smokers for special workplace protections and prohibit employers from discriminating in employment based on an individual’s tobacco use off the company’s premises on non-work time, i.e., from implementing a smoker-free workplace policy.

Legal challenges are likely to come from many directions: ADA, GINA, HIPAA, ERISA, ERISA, invasion of privacy claims and wrongful discharge theories, to name the most likely. Our recent article in DRI’s Job Description newsletter (reprinted with permission) summarizes the challenges that have been made.

The irony is that employers who take steps to reduce tobacco use—a CDC recommendation– face a maelstrom of legal risk. To encourage employers to get involved in this effort, and enhance the effort’s likelihood of success, a clear and consistent body of federal law concerning an employer’s rights with regard to smoking and tobacco use by applicants and employees is essential.

An employee goes on FMLA leave unable to work temporarily due to uncontrolled diabetes. The employee’s essential job functions include driving a forklift and working with other dangerous machinery. Many in the workplace are aware of the situation because the employee lost consciousness while working and had to be transported to the hospital by ambulance. Sound familiar?

Two weeks into the leave, the employee calls and says he is ready to return to work – he even has a doctor’s note stating he is ready to return to work without restrictions. You, knowing that the ADA does not require you to allow someone to work if they pose a “direct threat,” and fearing the employee may injure himself or others if he is not “fit for duty,” delay his return to work until he provides a more detailed second opinion from a doctor you select. The employee does not want to participate in a second opinion, he is ready to return now! The employee files a complaint claiming a violation of the FMLA citing 29 C.F.R. Section 825.312 claiming the employer did not give proper notice of the need to provide an extensive medical release and is tantamount to a second opinion, which the FMLA regulations prohibit.

Does the ADA trump the FMLA? Courts seem to disagree. See for example, Porter v. Alumoweld, 125 F.3d 243, 7 AD Cases 537 (4th Cir. 1997) (upholding employer’s right to require more than what FMLA permitted); Albert v. Runyon, 4 WH Cases2d 1128, 1137-38 (D. Mass. 1998) (requiring employers to comply with both the ADA and FMLA); Routes v. Henderson, 5 WH Cases2d 768, 798-99 (S.D. Ind. 1999).

This conflict is unnecessary and senseless. Why would two federal laws, enacted within 3 years of one another, impose conflicting obligations? The ADA adequately protects employees who impose unreasonable medical examination requirements. As we will point out repeatedly on this blog, workplace law is seriously flawed whenever it prevents an employer from acting reasonably and prudently. This is one of those instances.

Maybe new EEOC Commissioners Chai Feldblum, who was one of the principal drafters of the ADA and ADA Amendments Act, and Victoria Lipnic, who led the Department of Labor’s effort to revise FMLA regulations in 2009, can help persuade Congress, courts, or the EEOC and DOL, to resolve this conflict. Let’s have one rule, the ADA rule, and simply require all medical examinations or inquiries be “job-related and consistent with business necessity.”

By the way, some say we already do have one rule — see references in FMLA Regulations Section 825.312(h), the FMLA regulatory provision governing “Fitness For Duty Certifications.” That section includes statements that requirements under the ADA apply and, if an employee’s serious health condition may also be a disability within the meaning of the ADA, the FMLA does not prevent the employer from following the procedures for requesting medical information under the ADA.

From White Plains … waiting for some ADA/FMLA clarity.

Welcome to our new Disability, Leave & Health Management Blog. Most would agree that  health and family are the most precious things in life. Most employers recognize this but, as the saying goes, they “have a business to run.” In this blog, we hope to confront some of the more thorny legal and practical issues employers face when managing issues involving employee health, attendance, leave and family responsibilities. Most will involve issues under the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA), Title VII of the Civil Rights Act (Title VII), the Pregnancy Discrimination Act (PDA), the Health Insurance Portability Accountability Act (HIPAA), the Employee Retirement Income Security Act (ERISA) and analogous state and local laws.

We will try to keep you engaged as courts and federal agencies weigh in on the meaning of reasonable accommodation, the obligations to provide medical leaves, and legal restrictions governing wellness and health promotion programs, medical privacy, and workplace injury prevention efforts. We will strive to keep you informed about significant pieces of proposed legislation, articles or events, such as the recent White House Forum on Workplace Flexibility, that may reshape how we work together in the 21st Century workplace.

So much is happening so fast in the fascinating world of work. We all need to pay attention and have our say about the direction in which this important law should develop. We hope you enjoy our posts and, if you get a chance, send us an email to let us know what you think.

Stay well!

– Frank Alvarez