Tag: Americans with Disabilities Act

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EEOC releases guidance on the COVID-19 vaccine

COVID-19, vaccine, flu

Yesterday, the EEOC published its guidance on the COVID-19 vaccine under the ADA and GINA, in the form of nine Q&As. You can read them in their totality here.

The TL;DR: yes, you can force employees to receive the COVID-19 vaccine as a condition of employment (although the should is an entirely different issue), subject to limits on reasonable accommodations for employees’ disabilities and sincerely held religious practices or beliefs and subject to limits on pre-vaccination medical questions.

That’s more or less aligned with everyone’s collective conventional wisdom on this issue. What is new in this guidance is the agency’s position on what to do with employees who refuse the vaccine for medical or religious reasons.

If an employer requires vaccinations when they are available, and an employee indicates that he or she is unable to receive a COVID-19 vaccination because of a disability, the employer must accommodate that request unless the employer can show that “an unvaccinated employee would pose a direct threat due to a ‘significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation’ … with a “determination that an unvaccinated individual will expose others to the virus at the worksite.” Even then, an “employer cannot exclude the employee from the workplace—or take any other action—unless there is no way to provide a reasonable accommodation … that would eliminate or reduce this risk so the unvaccinated employee does not pose a direct threat.” Moreover, a direct threat determination and an exclusion of an unvaccinated employee from the workplace does not necessarily equate to termination. An employer must in this case consider alternative accommodations, including remote work or an unpaid leave of absence.

Sincerely held religious practices or beliefs present a different problem for employees since Title VII does not offer a similar direct threat defense to an accommodation request. According to the EEOC, “If an employee cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief, practice, or observance, and there is no reasonable accommodation possible, then it would be lawful for the employer to exclude the employee from the workplace.” As is the case under the ADA, however, this lawful exclusion does not necessarily equate to termination, and alternative accommodations should be considered.
The bottom line for employers? The COVID-19 vaccine is here and will be available within months for your employees. Now is the time to figure out how you will handle it for your employees. Will you require it or recommend it? Will you offer it on-site or send employees elsewhere for the vaccine? What will you do when an employee objects for medical or religious reasons? Planning is everything, and with an issue this important there is no reason to be caught unprepared.
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Best Practices for ADA Compliance

employee compensation

This summer marked the 29th anniversary of the original Americans with Disabilities Act.

I have Type 1 Diabetes, which makes me a beneficiary of the ADA (as amended). The ADA protects my right to wear my insulin pump on a plane, eat a snack when my glucose is low and bring needles when I go to court. As an individual, I rely on ADA protections on a daily basis.

As an attorney, I regularly counsel employers who feel overwhelmed by administering such a technical law.

Put succinctly, Title I of the ADA requires employers to make certain reasonable accommodations for otherwise qualified individuals with disabilities. This is easier in theory than practice. Even a letter-perfect ADA policy might be insufficient if management is not properly trained or if employees are not given guidelines for how to raise the need for a potential accommodation. There are, however, some steps employers can take to protect themselves and their employees.

The ADA requires employers to engage in an “interactive process” with an employee who signals a potential need for an accommodation.

If a company doesn’t know about the problem, it’s difficult to address the issue or provide the accommodation. Clear policies outlining how employees should request an accommodation are essential. This typically includes specific direction on whom to contact and how. Employees at all levels should be educated on how to address a possible accommodation need.

By contrast, policies that are silent on this point or that direct employees to an “immediate supervisor” or “management” could foster dead-end conversations with someone who inadvertently misinforms an employee or ventures to make his or her own determination of whether the individual has a legally protected disability, creating significant liability for the company.

The corollary is training management at all levels on how to respond to an employee’s remark that “the fluorescent lights give them migraines” or that they “can’t stand at the register for the whole shift.” If the employee’s communication could indicate a need for a medical accommodation, liability could arise for the company even if the individual to whom it is disclosed is not serving in an official HR role.

Also read: A Textbook Lesson on the ADA’s Interactive Process

Consider the company that recently landed in hot water when a well-intentioned but misinformed supervisor unequivocally informed an employee that she could not miss work or take a leave of absence to treat her anxiety. The employee subsequently resigned. By failing to direct the issue through the proper channels, the supervisor misinformed the employee, failed to fulfill the company’s legal obligations, caused the employee to resign and led to costly litigation that could have been avoided with an ADA-compliant response.

Well-intentioned employers may also miss the mark determining whether the individual has a “disability.”

While it may seem straightforward, ADA protections extend to conditions that may not be visible, and the determination is highly fact-specific. For example, migraines, irritable bowel syndrome and mental health issues may be considered disabilities in the right circumstances.

While employers may request certain medical information under appropriate circumstances, it should be handled with care to avoid legal violations for mishandling medical information. This, again, makes it essential to direct employees to the appropriate recipient for such a disclosure.

Even if an individual has a legally protected disability, the ADA does not require that an employer automatically provide the requested accommodation. It does, however, require an accommodation that is reasonable, i.e., one that does not pose an undue hardship for the employer.

Reasonableness is a fact-specific determination that should be made through an interactive process between the employer and the individual. Depending on the circumstances, it could include anything from a modified work schedule to providing accessible workplace equipment, or even a leave of absence from work. The fact that it would cost the company money, or that co-workers will be jealous, or that you’ve always scheduled shifts for specific eight-hour windows, does not automatically mean that the accommodation is unreasonable.

Returning to the example above about the employee with anxiety, the company was not under an obligation to give the employee precisely what she requested. What was not permissible, however, was her supervisor’s immediate rejection of the accommodation that she requested without further dialogue about what she needed to do her job.

Also read: An Expensive Lesson on Disability Harassment

To avoid liability, employers should position employees to navigate complicated medical issues when they arise. At a minimum, everyone should be trained to direct inquiries to the same, central location, such as HR or a member of upper management. Finally, legal advice should be sought when the answer is in doubt; it is cheaper to resolve an issue on the front end than to clean up in litigation.

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The 16th Nominee for the “Worst Employer of 2019” Is … the Shameful Wall Builder

Jon Hyman The Practical Employer

worst employer 2019If you’re a health care facility whose employees erect a “wall of shame” of disabled patients, and then you drag your feet when an employee, who was also a patient, reports the misconduct, you might be the worst employer of 2019. From the Bangor (Maine) Daily News:

Employees at St. Mary’s Regional Medical Center in Lewiston created a “wall of shame” where they displayed confidential medical records of patients with disabilities detailing issues with their genitalia and bodily functions, according to an investigation by the Maine Human Rights Commission that found the exhibit had contributed to a hostile work environment.

In addition, at least two employees looked at the private medical records of a fellow coworker, MyKayla McCann, whom the hospital had previously treated. She ultimately reported her suspicions about their actions, in addition to the wall of shame, to the hospital’s administration. When she did, it took three to four months for the hospital to remove the display, investigate and punish her coworkers, according to the investigation. …

A human rights commission investigator found there are reasonable grounds to believe that St. Mary’s hospital discriminated against McCann, who is a member of a protected class because she has a disability, when it subjected her to a hostile environment created by her coworkers’ conduct. …

McCann discovered the “shame wall” on the inside of a cabinet door on her first day of work as a laboratory technician assistant at St. Mary’s in June 2015. It had been labeled a “wall of fame,” with the word “fame” crossed out and replaced by “shame.” Portions of medical records had been cut and taped to the door. They “included information detailing patients’ sexual activity, genital dysfunction, bowel movements, bodily odors, and other personal maladies,” according to the investigator’s report.

McCann also provided pictures of the wall in her complaint. In one place, someone had attached strips of paper with diagnoses on them: “cramps/bloated/things to do w/intercourse,” stated one. “Drooping eyelids,” “butt wounds,” “unable to insert tampon,” “sour smell of vagina with occasional itching,” stated others.

For its part, the hospital’s parent company publicly apologized to McCann.

Public apology or not, if you permit a working environment in which this “wall of shame” could exist, you might be the worst employer of 2019.

Previous Nominees:

The 1st Nominee for the Worst Employer of 2019 Is … the Philandering Pharmacist

The 2nd Nominee for the Worst Employer of 2019 Is … the Little Rascal Racist

The 3rd Nominee for the Worst Employer of 2019 is … the Barbarous Boss

The 4th Nominee for the Worst Employer of 2019 is… the Flagrant Farmer

The 5th Nominee for the Worst Employer of 2019 is… the Fishy Fishery 

The 6th Nominee for Worst Employer of 2019 Is … the Diverse Discriminator

The 7th Nominee for Worst Employer of 2019 Is … the Disability Debaser

The 8th Nominee for the Worst Employer of 2019 Is … the Lascivious Leader

The 9th Nominee for the Worst Employer of 2019 Is … the Fertile Firing

The 10th Nominee for Worst Employer of 2019 Is … the Exorcising Employee

The 11th Nominee for the Worst Employer of 2019 Is … the ****y Supervisor

The 12th Nominee for the Worst Employer of 2019 Is … the Disguised Doctor

The 13th Nominee for the Worst Employer of 2019 Is … the Excoriating Executives
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Complications From Postpartum Depression

 

Postpartum depression can cause problems for employees — and painful lawsuits against employers.

In 2008, Congress passed amendments to the Americans with Disabilities Act — the ADA Amendments Act, or ADAA — greatly expanding what impairments are covered as disabilities under the statute. The ADA has always covered both mental and physical disabilities that interfered with a major life activity.

Prior to 2009, however, the U.S. Supreme Court took a very restrictive view of what facts constituted interference with a major life activity, in particular finding that impairments that were episodic or of short duration did not qualify for coverage under the Americans with Disabilities Act. In enacting the amendments, Congress explicitly rejected the approach. Now, under the newly amended ADA, courts are instructed to give the definition of disability a broad interpretation, which means that many conditions — even ones of short duration — enjoy protection under the ADA.

There have been numerous decisions since passage of the amendments in which courts have found that postpartum depression can be a disability under the amended ADA.

One recent example is Seema Nayak, M.D. v. St. Vincent Hospital and Health Care Center. In Nayak, the plaintiff was a medical doctor employed by St. Vincent as a resident in the OB/GYN program. Following a difficult multiple pregnancy in which one of her twins died, Nayak returned to her residency program where she, according her supervisors, experienced numerous performance problems. The program director, in raising this concerns with Nayak, said that others on her team were concerned because she “appeared distracted, sad and tearful.” When the director later declined to renew Nayak’s contract, he notified the American Board of Obstetrics and Gynecology that, “Due to a medically complicated pregnancy and significant concerns regarding her academic progress, our program decided not to extend her contract beyond this academic year.”

Nayak sued the hospital on numerous grounds, including that it had discriminated against her because, among other things, it regarded her as depressed and therefore having a disability. (Nayak had in fact been diagnosed with postpartum depression but did not tell her supervisors, claiming that she was afraid to do so.)

When St. Vincent later filed a motion asking the court to kick out Nayak’s disability claim, the court declined finding that the statements about her mood and the hospital’s admission that it fired her because of “a medically complicated pregnancy” were sufficient to support this claim. The court further found the fact that, according to the hospital, Nayak had performance problems before her pregnancy was not sufficient for the hospital to establish that it fired her for performance reasons.

However, it is important for employers and employees to note that a diagnosis of depression — postpartum or otherwise — does not insulate an employee from lawful termination. The case Eisner v. New York City Law Department, et al. provides employers an example of both the potential liabilities under the Americans with Disabilities Act as well as an example of how to successfully handle a termination under the statute.

In this case, plaintiff Susan Eisner, who worked as an attorney for the city in its appellate division, filed an EEOC charge in 2009 when she received a negative performance review after being diagnosed with “major depression, severe, single episode … induced postpartum following the birth of a child.” Eisner claimed that her supervisor at the time had said that Eisner was “not high-functioning” and that “no magic pill can fix you.” The city settled the case with Eisner, who remained in the appeals division.

Citing performance reasons, the city terminated Eisner in 2013. Eisner sued claiming discrimination based on disability and retaliation. In denying all of Eisner’s claims, the court found that she had to prove that her disability was the “but for” cause of her termination.

The Supreme Court in two cases Gross v. FBL Financial Services Inc. and University of Texas Southwestern Medical Center v. Nassar found that the appropriate standard of proof under the Age Discrimination in Employment Act and Title VII of the Civil Rights Act is the “but for” standard rather than the arguably lower “motivating factor” test. The Supreme Court, however, has not opined on the proper standard of proof under the Americans with Disabilities Act. The court in Eisner reasoned that the language in the act is sufficiently similar to both the ADEA and Title VII to warrant applying the same standard. (Eisner has appealed the court’s ruling.)

Though, given the court’s analysis of her Americans with Disabilities Act claim, it appears the court would have dismissed her claim regardless. As the court noted, “Eisner has failed to adduce any facts that would give rise to an inference of disability discrimination. She contends that ‘every single adverse action against [her] flows from her initial disclosure of her disability.’ Such a temporal argument is unavailing.” The court noted that her initial request for accommodation occurred in 2009, some four years earlier.

The lesson of these two cases is that postpartum depression can be covered by the Americans with Disabilities Act, so employers need to be prepared to provide reasonable accommodations when requested. However, just because an employee suffers from postpartum depression does not mean she is immune from lawful termination. Still, in those situations an employer needs to proceed with extreme caution and strong evidence that the disability was not the factor driving the termination decision.

Tom Spiggle is author of “You’re Pregnant? You’re Fired: Protecting Mothers, Fathers, and Other Caregivers in the Workplace.” He is founder of the Spiggle Law Firm with offices in Arlington, Virginia, and Nashville, Tennessee. To comment, email editors@workforce.com.

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Testing Employees for Legally Prescribed Medications Must be Done Carefully

A recent settlement announced by the Equal Employment Opportunity Commission points out the risks that exist if you include lawfully prescribed medications in your drug testing programs.WF_WebSite_BlogHeaders-11

According to the EEOC’s lawsuit, Dura Automotive Systems drug-tested all of its Lawrenceburg, Tennessee, plant employees in May 2007 for 12 substances—five that were illegal controlled substances, and seven that were legal medications lawfully prescribed for the individuals taking them. The EEOC alleged that Dura required those employees who tested positive for legally prescribed medications to disclose their underlying medical conditions, made it a condition of employment that the employees cease taking their prescription medications, and either suspended employees until they stopped taking the medications or fired those who were unable to perform their job duties without the benefit of their medications. For these transgressions, Dura will fund a $750,000 settlement.

You might be thinking to yourselves, “I have read lots of medicine bottles that caution against operating motor vehicles or heavy machinery. Why can’t I take steps to guarantee my employees’ safety against these dangers?” The answer is that you can, but only in limited circumstances defined by the Americans with Disabilities Act.

Asking questions about whether an employee currently is taking, or has taken, any prescription drugs or medications, or monitoring an employee’s taking of such drugs or medications is a “disability related inquiry” under the ADA. Testing for whether an employee currently is taking any prescription drugs or medications is a medical examination under the ADA. Disability-related inquiries and medical examinations made during employment must be job-related and consistent with business necessity. Thus, an employer can only inquire about an employee’s prescription medications under these limited circumstances.

In the words of the EEOC:

May an employer ask all employees what prescription medications they are taking?

Generally, no. 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 the Dura Automotive case, the employer tested all of its employees for prescription medications, regardless of their job duties. This across-the-board testing runs afoul of the ADA. If you have safety-sensitive positions, in which employees will pose a direct threat by performing their essential job functions while impaired, then you may be able to test those employees for legally-prescribed medications. These issues, however, are highly sensitive, and employers must tread carefully to avoid violating the ADA.

Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.