ADA – Page 4 – Workforce

February 12, 2019June 29, 2023

A Textbook Lesson: The ADA’s Interactive Process

Does an employer have an obligation to return an employee to work following an extended unpaid leave of absence granted as a reasonable accommodation under the ADA?

You might be inclined to say, “Of course.” The answer, however, is nuanced, and depends on the length of the leave, the composition of your workforce at the time the employee seeks to return to work, and your efforts to engage in the ADA’s interactive process with the employee during the leave.

For your consideration: Brunckhorst v. City of Oak Park Heights.

Gary Brunckhorst worked as an accountant for the city of Oak Park Heights, Minnesota, for over 15 years. In April 2014, he contracted Fournier’s gangrenous necrotizing fasciitis — a rare, life-threatening disease otherwise known as “flesh-eating” bacteria. He had three life-saving surgeries, spent five months in a hospital and nursing care facility and suffered long-term injuries.

At the outset of his hospitalization, Brunckhorst requested, and the city granted, FMLA leave. When that leave expired, the city granted an additional 60 days of unpaid medical leave and told Brunckhorst that he could qualify for an additional 30 more days thereafter. On Sept. 14, 2014, (the end of the initial 60-day unpaid leave), the city sent Brunckhorst his job description and asked him whether he could perform all of its essential functions of his position. Brunckhorst’s doctor responded that he was not able to return to work and that he needed additional unpaid leaves of absence, which was extended in serial through April 1.

In December 2014, however, the City Council had voted to eliminate Brunckhorst’s position as unnecessary. In an effort to soften the blow to Brunckhorst, is offered him the choice of a severance package or a return to work when he was able to do so in a new position, albeit with a 30 percent reduction in salary. Brunckhorst refused both, stating that he wanted to return to his original position. The city kept him on his unpaid leave in the interim, since he was not yet ready to return to work anyway.

Ultimately, the city gave Brunckhorst a hard April 1 deadline to return to work in the new position or be fired. Brunckhorst, through his attorney, refused and instead requested that the city permit him to work from home. The city refused, stating that remote work was not possible for the new position. It instead offered Brunckhorst a limited schedule as an accommodation — four hours per day four days per week in the office. When Brunckhorst declined the offer, the city terminated his employment.

The 8th Circuit Court of Appeals concluded that the city had not violated the ADA by eliminating his position, refusing to offer remote work as an accommodation, or otherwise failing to engage in the interactive process.

No reasonable juror could conclude that the City had failed to participate in the interactive process. Brunckhorst attempts to narrow the window of the interactive process to the last few days prior to his termination and claims that the City offered him only one, take-it-or-leave-it accommodation. To the contrary, the record shows that the City engaged in an interactive dialogue with Brunckhorst for months regarding his return to work. During that time, the City extended his leave multiple times, made multiple requests for information regarding what accommodations he required, and offered accommodations consistent with his doctor’s restrictions. There is no genuine issue of material fact that the City engaged in anything but a good-faith interactive dialogue.

This case provides a textbook roadmap for employers to follow when handling an employee on an extended medical leave. An employer can eliminate a position if the bona fides of its business and economic needs support that decision. It is not required to keep a position, or create a position, as a reasonable accommodation. It may have to offer an existing, vacant position, however. It also does not have to offer remote work if the essential functions of the position dictate otherwise.

If you are considering terminating an employee out on a non-FMLA unpaid medical leave, consider this question — will it appear to a reasonable jury that you tried to work with the employee to return him or her to work. If the answer is an objective “yes,” then you are likely on solid footing terminating the employee who refuses your offers to return to work (understanding that you may have to justify your actions and decisions in litigation).

January 29, 2019January 29, 2019

Public Sector Employers and Age Discrimination

When Mount Lemmon (Arizona) Fire District faced a budget crisis, it laid off its two oldest (and highest paid) full-time firefighters.

They sued under the Age Discrimination in Employment Act. The district argued that it did not violate any laws because it is too small to be considered an “employer” under the ADEA. Section 630(b) of the ADEA defines the term “employer” to mean any individual or company who has 20 or more employees. It states the term employer “also means a State or political subdivision of a State.”

The district argued that the two sentences should be read together to excuse any state or local government employer with fewer than 20 employees from complying with the ADEA. The district urged the court to adopt this interpretation because it is consistent with court decisions applying the minimum employee requirement to public employers under Title VII of the Civil Rights Act of 1964. The court disagreed with each of the district’s arguments. It held that by using the terms “also means,” Congress intended to add a second definition of the term “employer,” not clarify the prior definition. The court also noted that the ADEA is sometimes broader than Title VII due to the different language used in each statute. Mount Lemmon Fire Dist. v. John Guido, No. 17-587 (Nov. 6, 2018).

IMPACT: Public sector employers are subject to the ADEA and prohibited from discriminating against employees over age 40 based on age.

December 3, 2018June 29, 2023

What Can the Holiday Movie ‘Elf’ Teach Us About the ADA?

The Hyman clan carried out our annual holiday tradition of watching “Elf.”

Since much of the story took place in and around various workplaces, this year I decided to watch with an eye toward shareable employment law lessons.

Early in the story, Buddy learns the harsh reality that he is not actually an elf but a human. He learns this lesson after falling 985 Etch A Sketches short of his production expectations and being transferred to Jack-in-the-Box testing (the job reserved for “special” elves).

Assuming that Buddy’s height is a disability in the North Pole (and if the ADA protects dwarfs down south, it’s safe to assume the North Pole’s disability discrimination laws would similarly protect Buddy’s heightened height up north), what ADA lessons does this parable teach us?

1. Reasonable production standards.

The ADA does not require an employer to lower production standards — whether qualitative or quantitative — that it applies uniformly to employees with and without disabilities. An employer may, however, have to provide reasonable accommodation to enable an employee with a disability to meet the production standard.

Thus, if Santa requires 1,000 Etch A Sketches per day, then Buddy is required to make 1,000 Etch A Sketches per day, disability or no disability. Santa may, however, have to offer Buddy a reasonable accommodation (if available) to meet that quota. Santa may also choose to lower or waive the production standard, but he is not required to do so. Keep in mind, however, that if one waives or lowers the requirement for one employee, it makes it difficult to argue for future employees that the production requirement is truly essential, or that altering it is not a reasonable accommodation.

2. Transfer as reasonable accommodation.

The ADA specifically lists “reassignment to a vacant position” as a form of reasonable accommodation. An employer must consider this type of reasonable accommodation for an employee who, because of a disability, can no longer perform the essential functions of their current position, with or without reasonable accommodation. Reassignment is the reasonable accommodation of last resort and is required only after it has been determined that: (1) there are no effective accommodations that will enable the employee to perform the essential functions of his/her current position, or (2) all other reasonable accommodations would impose an undue hardship.

There are, however, several caveats.

The employee must be “qualified” for the new position, both by satisfying the requisite skill, experience, education, and other job-related requirements of the position, and by being able to perform the essential functions of the new position, with or without reasonable accommodation. An employer is under no obligation to assist the employee is becoming qualified, such as by providing training to enable the employee to obtain necessary skills for the job.

“Vacant” means that the position is available when the employee asks for reasonable accommodation, or that the employer knows that it will become available within a reasonable amount of time.

The reassignment must be to a position equal in pay, status, or other relevant factors (such as benefits or geographical location). If there is no vacant equivalent position, the employer should reassign to a vacant lower level position for which the individual is qualified and which is closest to the employee’s current position in terms of pay, status, etc.

For Buddy, that position was Jack-in-the-Box tester, an open position for which he was qualified.

There you have it. ADA lessons from “Elf.” Happy holidays.

November 15, 2018June 29, 2023

Do You Know? Pre-employment Medical Exams

A mayor in Ohio has gotten himself in some hot water for his selective use of pre-employment medical examinations for hirees.

How selective? According to WKYC, one woman claims that the mayor required her and other women, but not men, to be examined by his personal doctor. For his part, the mayor denies the allegations as an act of a “fertile imagination” and claims that he sends all city workers, male and female, to the same doctor for pre-employment exams.

Why would her allegations rise to the level of unlawful activity?

Aside from the obvious sex discrimination (an employer cannot apply one set of policies to male employees a different set to female employees), it also violates the ADA’s requirements for pre-employment medical examinations.

The ADA applies a traffic-light approach to employer-mandated medical exams.

- Red light (prior to an offer of employment): the ADA prohibits all disability-related inquiries and medical examinations, even those that are job related.
- Yellow light (after employment begins): an employer only may make disability-related inquiries and require medical examinations that are job-related and consistent with business necessity.
- Green Light (after an applicant is given a conditional job offer, but before s/he starts work): an employer may make any disability-related inquiries and conduct medical examinations, regardless of whether they are related to the job, as long as it does so for all entering employees in the same job category.

Because these exams fall in the “Green Light” category, the city is in the clear, right? Wrong. Pre-employment medical exams are permitted as long as the employer does so for all entering employees in the same job category. This employee alleges the females were singled out. Thus, unless she worked with all women in her job category (another legal red flag), the city violated the ADA by sending some, but not all, employees for pre-employment medical exams.

Also, pay attention to state laws when conducting medical exams. For example, Ohio prohibits an employer from shifting the cost of any pre-employment medical exam to an employee: “No employer shall require any prospective employee or applicant for employment to pay the cost of a medical examination required by the employer as a condition of employment.”

As for this mayor, these allegations are just the tip of his legal iceberg. It’s also alleged that he uses the n-word to refer to African American residents, and sexually harasses female employees by talking about his private parts and how pistachios contribute to his sexual prowess. Sounds like a great place to work.

November 3, 2016June 29, 2023

Employers, Do Not Ignore Obvious Disability Accommodations

All the way back in 2014,

An employee must ask for ADA accommodation to receive it.

That is, an employee must ask for an accommodation unless the employee’s need for an accommodation is so obvious that the employer cannot reasonably turn a blind eye toward it.

Case in point? Kowitz v. Trinity Health (8th Cir. 10/17/16).

Roberta Kowtiz worked for Trinity Health as a respiratory therapist and lead technician in its blood gas laboratory. She also suffered from cervical spinal stenosis, a degenerative spinal disease, for which she took a 12-week FMLA leave. She returned to work with restrictions that included max eight-hour shifts and no lifting more than 10 pounds. In the interim, Trinity updated the training requirements for Kowitz’s department to include renewed CPR training. Kowitz’s work limitations, however, prevented her from completing the training, a failure which resulted in her termination.

In her ensuing ADA lawsuit, the appellate court concluded that Kowitz’s failure to request a reasonable accommodation relative to the CPR training was not fatal to her ADA claim.

Though Kowitz did not ask for a reasonable accommodation of her condition in so many words, viewing the facts in the light most favorable to Kowitz, her notification to her supervisor that she would not be able to obtain the required certification until she had completed physical therapy implied that an accommodation would be required until then.

What is the key takeaway for employers? You cannot ignore what you know about an employee’s disability and the potential need for an accommodation. Instead of ignoring the employee, you must engage in the interactive process with that employee to determine the need for, and feasibility of, the accommodation, whether or not the employee actually requests it.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.

September 6, 2016June 29, 2023

Associational Disability Discrimination Claims Are Rare, Yet Dangerous

I have been blessed with employers that are sympathetic to the fact that my son was born with some life-long medical issues. I’ve never had an issue taking time for a doctor’s appointment, or an unexpected illness, or the three weeks he spent inpatient at the Cleveland Clinic five (very) long years ago.

Some employees aren’t so lucky.

The EEOC reports that New Mexico Orthopaedics Associates will pay $165,000 to settle a lawsuit for associational disability discrimination. According to the agency, NMOA violated the ADA by firing a temporary employee, and failing to hire her for a full-time position, because of her relationship with her then 3-year-old disabled daughter.

The ADA prohibits three different types of associational discrimination.

Expense — discrimination based on the cost of insuring the associated disabled person under the employer’s health plan.
Disability by association — discrimination based on the employer’s fear that the employee may contract the disability, or the employee is genetically predisposed to develop a disability that his or her relatives have).
Distraction — discrimination based on the employee’s inattentiveness at work because of the disability of the associated person.

EEOC v. New Mexico Orthopaedics Associates was based on the latter — distraction. According to EEOC Regional Attorney Mary Jo O’Neill:

The ADA specifically prohibits discrimination against mothers, fathers, caregivers, family members or others who are associated with persons with disabilities. Employers, especially those employers in medical fields, should be careful to provide employment opportunities based solely on the qualifications of the employee or applicant and not impermissible factors such as their association with an individual with a disability.

While this statement is very true, these cases are also very rare. Indeed, New Mexico Orthopaedics Associates was the first and only case ever filed by the EEOC in New Mexico alleging associational disability discrimination. Nevertheless, as this case illustrates, rare does not equal inexpensive. This employer learned an expensive and necessary lesson — caregivers have rights.

I’ll leave you with the words of the victim in the case, Melissa Yalch Valencia:

It should never have happened. A mother should never have to worry about losing her job because her child has a disability. I hope the lawsuit encourages moms and dads to stand up fearlessly when things like this happen. I also hope this lawsuit and this resolution encourages companies to train supervisors and employees to assure things like this don’t happen in the workplace.

Employers, take heed and avoid discriminating against those with caregiving responsibilities for disabled family members. It’s not just the legal thing to do; it’s also the right thing to do.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.

September 6, 2016June 29, 2023

The ADA and Prescription Meds: What You Need to Know

Can an employer include prescription medications in its drug screening of job applicants and employees? Here’s a good lawyer answer for you: It depends.

Last week, the EEOC announced that it had sued an Arizona car dealership for disability discrimination after it rescinded a job offer when a pre-employment drug test revealed a prescription drug used to treat a disability.

According to EEOC’s lawsuit, Bell-Arrow Automotive, Inc. (doing business as Bell Lexus), a subsidiary of Bell Leasing, Inc. (doing business as The Berge Group), maintained a policy of refusing to employ any applicant who tested positive for one of several enumerated substances on a list identified by Bell Lexus and the Berge Group. Bell Lexus extended a job offer to Sara Thorholm to work as product specialist or a salesperson, but rescinded it when her drug test returned positive for a single substance. Thorholm explained to Bell Lexus that the substance was legally prescribed to treat a disability and would not affect her ability to perform the duties of the job. Bell Lexus refused both Thorholm’s offer of proof and her offer to change medications.

The EEOC contends that the employer violated the ADA by maintaining a “blanket exclusion policy” for certain prescription medications, and refusing to consider an exception to its drug testing policy as a reasonable accommodation. Indeed, according to the EEOC’s Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the ADA, in most cases an employer cannot even ask about prescription drugs:

Asking all employees about their use of prescription medications is not job-related and consistent with business necessity. In limited circumstances, however, certain employers may be able to demonstrate that it is job-related and consistent with business necessity to require employees in positions affecting public safety to report when they are taking medication that may affect their ability to perform essential functions. Under these limited circumstances, an employer must be able to demonstrate that an employee’s inability or impaired ability to perform essential functions will result in a direct threat. For example, a police department could require armed officers to report when they are taking medications that may affect their ability to use a firearm or to perform other essential functions of their job. Similarly, an airline could require its pilots to report when they are taking any medications that may impair their ability to fly. A fire department, however, could not require fire department employees who perform only administrative duties to report their use of medications because it is unlikely that it could show that these employees would pose a direct threat as a result of their inability or impaired ability to perform their essential job functions.

In other words, it is the rare case in which an employer is justified in asking about prescription meds, or disqualifying from employment one who tests positive.

How is an employer supposed to to maintain a safe workplace in light of these limitations? Here are four thoughts.

Blanket prohibitions are illegal. The ADA imposes on employer an obligation to make individualized inquiries about implications such as reasonable accommodations and direct threats. A blanket prohibition against on-the-job use of prescriptions medications violates this obligation.
Drug testing. Drug testing programs can include legally prescribed drugs. An employer cannot, however, have a blanket policy excluding from employment any employee testing positive for a prescribed drug. Instead, following a positive test, the employer should ask if the employee is taking any prescribed drugs that would explain the positive result.
Drug-free workplace policies. It is permissible to include prescription drugs in drug-free workplace policies. These policies can require employees to disclose prescription drugs that may adversely affect judgment, coordination, or the ability to perform job duties. After disclosure, an employer must, on a case-by-case basis determine whether it can make a reasonable accommodation that will enable the individual to remain employed.
Post-disclosure handling. After an employer learns that an employee is taking a prescription drug that may affect job performance, it should request a medical certification regarding the effect of the medication on the ability safely to perform essential job functions. That certification will enable the employer to engage the employee in the interactive process and making the individualized determination of whether a reasonable accommodation is even possible.

“What about medical marijuana,” you ask? How do these ADA concerns impact its impending legality? I’ll have more to say about this in a future post, but, most of the courts that have examined the issue of workplace drug testing for states in which medical marijuana is legal have concluded that the ADA does not protect medical marijuana because the drug remains illegal under federal law.

Stay tuned, however, as the issue of medical marijuana under the ADA is nuanced and certainly developing and subject to change.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.

August 30, 2016June 29, 2023

What Employers Can Learn from EEOC’s New Enforcement Guidance on Retaliation

The EEOC on Aug. 29 published its final Enforcement Guidance on Retaliation and Related Issues. It’s the agency’s first formal guidance on this issue since 1998, and was long overdue.

After all, according to EEOC Chair Jenny R. Yang, “Retaliation is asserted in nearly 45 percent of all charges we receive and is the most frequently alleged basis of discrimination.” She adds, “The examples and promising practices included in the guidance are aimed at assisting all employers reduce the likelihood of retaliation.”

The lengthy guidance addresses retaliation under each of the statutes enforced by EEOC, and includes a discussion of the separate “interference” provision under the ADA, which prohibits coercion, threats, or other acts that interfere with the exercise of ADA rights.

In addition to the enforcement guidance, the EEOC also simultaneously published a summary Q&A and a short Small Business Fact Sheet.

The guidance offers in depth discussions of protected activities, adverse actions, and causation, and is required reading for all employers. I’d like to focus on the document’s coda, titled, “Promising Practices,” which discusses policies, training, and organizational changes employers can implement to reduce the likelihood of retaliation.

A. Written Employer Policies
Employers should maintain a written, plain-language anti-retaliation policy, and provide practical guidance on the employer’s expectations with user-friendly examples of what to do and not to do. The policy should include:

Examples of retaliation that managers may not otherwise realize are actionable, including actions that would not be cognizable as discriminatory disparate treatment but are actionable as retaliation because they would likely deter a reasonable person from engaging in protected activity;
Proactive steps for avoiding actual or perceived retaliation, including practical guidance on interactions by managers and supervisors with employees who have lodged discrimination allegations against them;
A reporting mechanism for employee concerns about retaliation, including access to a mechanism for informal resolution; and
A clear explanation that retaliation can be subject to discipline, up to and including termination.

Employers should consider any necessary revisions to eliminate punitive formal or informal policies that may deter employees from engaging in protected activity, such as policies that would impose materially adverse actions for inquiring, disclosing, or otherwise discussing wages. Although most private employers are under no obligation to disclose or make wages public, actions that deter or punish employees with respect to pay inquiries or discussions may constitute retaliation under provisions in federal and/or state law.

B. Training

Employers should consider these ideas for training:

Train all managers, supervisors, and employees on the employer’s written anti-retaliation policy.
Send a message from top management that retaliation will not be tolerated, provide information on policies and procedures in several different formats, and hold periodic refresher training.
Tailor training to address any specific deficits in EEO knowledge and behavioral standards that have arisen in that particular workplace, ensuring that employees are aware of what conduct is protected activity and providing examples on how to avoid problematic situations that have actually manifested or might be likely to do so.
Offer explicit instruction on alternative proactive, EEO-compliant ways these situations could have been handled. In particular, managers and supervisors may benefit from scenarios and advice for ensuring that discipline and performance evaluations of employees are motivated by legitimate, non-retaliatory reasons.
Emphasize that those accused of EEO violations, and in particular managers and supervisors, should not act on feelings of revenge or retribution, although also acknowledge that those emotions may occur.
Include training for management and human resources staff regarding how to be responsive and proactive when employees do raise concerns about potential EEO violations, including basics such as asking for clarification and additional information to ensure that the question or concern raised is fully understood, consulting as needed with superiors to address the issues raised, and following up as soon as possible with the employee who raised the concern.
Do not limit training to those who work in offices. Provide EEO compliance and anti-retaliation training for those working in a range of workplace settings, including for example employees and supervisors in lower-wage manufacturing and service industries, manual laborers, and farm workers.
Consider overall efforts to encourage a respectful workplace, which some social scientists have suggested may help curb retaliatory behavior.

C. Anti-Retaliation Advice and Individualized Support for Employees, Managers, and Supervisors

An automatic part of an employer’s response and investigation following EEO allegations should be to provide information to all parties and witnesses regarding the anti-retaliation policy, how to report alleged retaliation, and how to avoid engaging in it. As part of this debriefing, managers and supervisors alleged to have engaged in discrimination should be provided with guidance on how to handle any personal feelings about the allegations when carrying out management duties or interacting in the workplace.

Provide tips for avoiding actual or perceived retaliation, as well as access to a resource individual for advice and counsel on managing the situation. This may occur as part of the standard debriefing of a manager, supervisor, or witness immediately following an allegation having been made, ensuring that those alleged to have discriminated receive prompt advice from a human resources, EEO, or other designated manager or specialist, both to air any concerns or resentments about the situation and to assist with strategies for avoiding actual or perceived retaliation going forward.

D. Proactive Follow-Up

Employers may wish to check in with employees, managers, and witnesses during the pendency of an EEO matter to inquire if there are any concerns regarding potential or perceived retaliation, and to provide guidance. This provides an opportunity to identify issues before they fester, and to reassure employees and witnesses of the employer’s commitment to protect against retaliation. It also provides an opportunity to give ongoing support and advice to those managers and supervisors who may be named in discrimination matters that are pending over a long period of time prior to reaching a final resolution.

E. Review of Employment Actions to Ensure EEO Compliance

Consider ensuring that a human resources or EEO specialist, a designated management official, in-house counsel, or other resource individual reviews proposed employment actions of consequence to ensure they are based on legitimate non-discriminatory, non-retaliatory reasons. These reviewers should:

Require decisionmakers to identify their reasons for taking consequential actions, and ensure that necessary documentation supports the decision;
Scrutinize performance assessments to ensure they have a sound factual basis and are free from unlawful motivations, and emphasize the need for consistency to managers;
Where retaliation is found to have occurred, identify and implement any process changes that may be useful; and
Review any available data or other resources to determine if there are particular organizational components with compliance deficiencies, identify causes, and implement responsive training, oversight, or other changes to address the weaknesses identified.

While many of these tips seem like common-sense HR practices, the guidance serves a good reminder to review and, if necessary, update policies, train management and employees, and stay current with the law. While we, as employers and their advocates, tend to beat on the EEOC for its pro-employee advocacy, the proactive advice set forth in its retaliation guidance is solid and should not be ignored.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.

July 14, 2016June 29, 2023

Adopt an A-E-I-O-You Method for Medical Leaves

Consider the following example. ABC Co. has a policy that states that an employee is entitled to a 12-week leave of absence for any medical reason, and thereafter the company cannot guarantee a job upon an employee’s ability to return to work. Does this policy pass muster under the Americans with Disabilities Act?

Opinions differ sharply on whether an employer can satisfy its obligations under the ADA by implementing a neutral leave of absence policy that caps a maximum allowable leave (for example, a policy that says, “Employees who do not return to work following a maximum of six months leave will be presumed to have resigned,” or “Employees will be entitled to a maximum of six months of unpaid medical leave in appropriate circumstances, and thereafter the company cannot hold the employee’s position open or guarantee a position to which the employee can return.”).

One opinion that is clear, though, is that of the EEOC. According to the commission, in its recently published guidance titled “Employer-Provided Leave and the Americans with Disabilities Act,” the answer is likely “no.” According to the EEOC, “the prevalence of employer policies that deny or unlawfully restrict the use of leave as a reasonable accommodation,” which the agency believes “serve as systemic barriers to the employment of workers with disabilities.”

In my experience, employers deny leaves because they are simply trying to do the best they can to balance the operational needs of their business against the medical needs of an employee. Sometimes the business wins. The EEOC is trying to level the playing field by making sure that employers consider leaves in all cases when appropriate.

The guidance is broken down into six key areas, which highlight various issues for employers to consider when employees need medical leaves of absence not covered by, or in addition to, the Family and Medical Leave Act.

Equal access to leave under an employer’s leave policy. Employers must provide employees with disabilities access to the same leaves of absence rules as employees without disabilities.
Granting leave as a reasonable accommodation. An employer must consider providing unpaid leave to an employee with a disability as a reasonable accommodation if the employee requires it, and so long as it does not create an undue hardship for the employer.
Leave and the interactive process generally. After an employee requests leave as a reasonable accommodation, the employer should promptly engage in an “interactive process” with the employee, a discussion that focuses on the reasons for the leave, whether it’s blocked or intermittent, and its expected duration, which may include confirming information from the employee’s health care provider.
Maximum leave policies. Policies that place a hard cap on an employee’s leave of absence, without consideration of modifications or extensions as reasonable accommodations, are unlawful under the ADA.
Return to work and reasonable accommodation (including reassignment). Avoid “100 percent healed” policies, which mandate that an employee must be fully recovered before returning to work. They are unlawful. Instead, consider reasonable accommodations that will enable an employee to return before 100 percent healed, which might include transfer to a vacant position.
Undue hardship. Depending on the duration and frequency of the leave and the effect on the employer’s business, the leave of absence might be an undue hardship that an employer need not offer. An open-ended, indefinite leave is always an undue hardship.

Employers need to be practical and tread very lightly around the issue of leaves of absences until the EEOC softens its position. The agency is aggressively pursuing businesses that enforce these neutral leave policies to the detriment of employees with disabilities. Unless you want to end up in the EEOC’s crosshairs, I recommend adopting the following “A-E-I-O-You” approach to employee medical leaves:

Avoid leave policies that provide a per se maximum amount of leave.
Engage in the interactive process with an employee who needs an extended leave of absence.
Involve your employment counsel to aid in the process of deciding when an extended leave crosses the line from a reasonable accommodation to an undue hardship.
Open your workplace to employees with disabilities to demonstrate to the EEOC, if necessary, that you take your ADA obligations seriously.
You should document all costs associated with any extended unpaid leaves to help make your undue hardship argument, if needed.

Remembering “A-E-I-O-You” will help you avoid the defense of a costly disability discrimination lawsuit.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. To comment, email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.

September 7, 2011June 29, 2023

Intergenerational “Humor” Has Its Risks in Age Discrimination

Issue: Following a bitter proxy battle, X Corporation is taken over by Jim Smith, a 30-year-old entrepreneur who made $500 million by developing violent video games.

On his first day as CEO, Jim calls into his office all persons over the age of 50, all of whom have been superb workers, and says: “My old dad told me I was nuts wasting my time playing with computer games. Hah! I really don’t believe people that old have any sense. You will have a tough time proving to me that you can fit in with my 21^st century philosophy. Time to get some new blood into this stodgy business!”

For the next few months, Smith constantly made disparaging remarks about the ability of older workers to do the job. At one meeting, he presented the 55-year-old supervisor of the loading dock with a cane and a walker, called another older executive “Methuselah,” and suggested an afternoon nap time for all of the “old codgers.” In addition, the younger employees and supervisors, egged on by Smith, regularly taunted the older workers with ageist remarks. At the end of four months, all the workers over the age of 50 had quit. Was the Age Discrimination in Employment Act (ADEA) violated?

Answer: Obviously. The work environment at X Corporation made it very difficult for older workers to perform their duties with skill and dignity. The constant harassment by Smith and the younger employees and supervisors resulted in the constructive discharge of every employee over the age of 50. A constructive discharge is when an employee quits in order to escape illegal and intolerable employment practices or conditions.

As an HR professional, you know that the ADEA protects individuals who are 40 years of age or older from discriminatory conduct based on their age. While courts have held that isolated remarks by supervisors might not rise to the level of discrimination, any employer who permits or encourages—even in jest—conduct similar to that related above is actively seeking a lawsuit. More importantly, however, employers who do not implement procedures to prevent harassment because of age or correct any harassment that occurs are also at risk of being found in violation of the ADEA.

Source: This egregious example is taken from “Age Discrimination,” part of the United States Equal Employment Opportunity Commission Technical Assistance Program. May 1999 (Revised).

Source: CCH Incorporated is a leading provider of information and software for human resources, legal, accounting, health-care and small-business professionals. CCH offers human resource management, payroll, employment, benefits, and worker-safety products and publications in print, CD, online and via the Internet. For more information and other updates on the latest HR news, check our Web site at http://hr.cch.com.

The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion.