EEOC – Page 4 – Workforce

December 4, 2016June 29, 2023

Prescribed Drugs Blur Policies

There is no doubt that America is in the grips of a prescription drug crisis. You cannot turn on the news without seeing a story about the dangers of opioid addiction.

And prescription medications, including dangerous opioids, provide risk for employers. The ADA’s reasonable accommodation obligations for employee medical conditions extends to the medication prescribed to employees to treat those conditions. Thus, an employer can be liable for failing to accommodate an employee’s use of legally prescribed medications.

For example, the EEOC recently sued a Georgia medical center for disability discrimination after it fired a physician for revealing that he was treating chronic neurological and musculoskeletal problems with legally prescribed narcotics. The lawsuit alleged that the employee supplied a doctor’s note explaining that he was being treated for chronic pain with a prescribed narcotic, and further explaining that he was subject to urine tests and monitoring via the Georgia Board of Pharmacy to ensure compliance with his treatment plan.

The employer, however, allegedly assumed that the medication rendered him unable to meet his job requirements and failed to engage in the interactive process with this employee to determine whether he could perform the essential functions of his job with, or without, reasonable accommodation based on the medical certification.

How is an employer supposed to maintain a safe workplace and lawfully test for legally prescribed drugs that could impair an employee’s performance? Consider these four thoughts.

Blanket prohibitions are illegal. The ADA imposes on employers an obligation to make individualized inquiries about implications such as reasonable accommodations and direct threats. A blanket prohibition against on-the-job use of prescription 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 to 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 to safely 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 marijuana? Currently, medically prescribed marijuana is lawful in 25 states plus the District of Columbia. Does the ADA treat marijuana like any other legally prescribed drug, limiting an employer’s ability to terminate for marijuana use?

Thankfully for employers, every state and federal court that has examined this issue so far (and, granted, the sample size is small), the answer is no, employers have no duty to accommodate disabled employees’ lawful use of medical marijuana.

Why? Because even though the use might be lawful under state law, federal law still criminalizes it. The ADA does not protect an employee currently using illegal drugs as a qualified individual with a disability.

Moreover, the ADA does not consider testing for illegal drugs to be a protected medical examination. Thus, the ADA does not restrict how or when an employer tests for illegal drugs, or what employer chooses to do with the results.

As a result, every court that has examined the issue so far has concluded that an employer can enforce a drug-free-workplace or zero-tolerance policy against off-duty marijuana use.

The bottom line for legal drugs? The ADA is all about engaging in conversations and avoiding assumptions. When dealing with an employee’s medications, silence on an employer’s part equals liability. When an employee presents for duty with a prescription medication, ask, certify, verify and, if possible, accommodate.

If you cannot make a reasonable accommodation after engaging the employee, then, and only then, are you free to consider termination.

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.

November 29, 2016June 29, 2023

‘Perceived’ National Origin Discrimination May not be Illegal, but …

Lost in the maelstrom of the

The guidance, which replaces the EEOC’s older 2002 guidance and covers topic such as citizenship, language issues and English-only policies, and harassment, is recommended reading for all employers, as are the EEOC’s companion Q&A and small business fact sheet.

Let me point out, however, one area of contention—the issue of “perceived” national origin discrimination.

According to the EEOC, “National origin discrimination means discrimination because an individual (or his or her ancestors) is from a certain place or has the physical, cultural, or linguistic characteristics of a particular national origin group,” and “Title VII prohibits employer actions that have the purpose or effect of discriminating against persons because of their real or perceived national origin.”

The federal courts, however, have a different view.

Consider, for example, Longoria v. Autoneum N. Am. (N.D. Ohio 9/13/16), which concerned whether one of American dissent could pursue a Title VII national origin discrimination claim based on his employer’s perception that he was Mexican. The court said no:

Longoria cites no Ohio case law that has validated, or even discussed, this theory of liability. Because Ohio courts generally took to Title VII cases when applying O.R.C. § 4112.02, I conclude that the Ohio courts would not recognize a perceived-national-origin discrimination claim, given its widespread failure in the federal district courts.

Also consider Burrage v. FedEx Freight, Inc. (N.D. Ohio 3/29/12) (about which I’ve previously blogged), which makes it clear that Title VII does not protect one from discrimination based on perceived characteristics, only actual characteristics.

Thus, if an employee sues you based on claim of perceived national origin discrimination, it is highly likely that I will be able to win that case (EEOC guidance notwithstanding).

Legal or illegal, however, the issue of perceived inclusion in a protected class raises a deeper issue. What kind of employer do you want to be? Do you really want to be the employer who condones calling a Mexican employee a wetback, yet wins in court because she’s really American? Or, the employer who win the lawsuit brought by your Indian-American employee who was repeatedly called “ISIS”?

Racism and xenophobia are still racism and xenophobia, and legal technicalities do not justify them having place in your workplace, period.

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.

October 20, 2016June 29, 2023

Is Recruiting Via Social Media Discriminatory?

Yesterday, I noted that the EEOC is examining the impact of big data on how employers reach employment decisions.

Looking at an issue and doing something about it, however, are two entirely different animals. I wonder what business the EEOC has looking at this issue at all. The EEOC’s mission is to eliminate discrimination from the workplace. Certainly, there is no claim that neutral data points intentionally or invidiously discriminate based on protected classes.

In that case, the only purpose the EEOC could hope to serve by looking at the impact of big data on employment practices is to determine whether its use disparately impacts a protected group.

“What is disparate impact,” you ask? A disparate impact claim involves an employment practice that is neutral on its face, but, as applied and to a statistical significance, it falls more harshly on one group over another. It has significant implications in race and sex discriminate claims. One federal appellate court recently and notably, however, called into question its application in age claims.

Unless big data has a disparate impact, the EEOC has no business examining this issue. So, what says the data? For purposes of this post, consider the use of social media as a recruiting tool. If an employer is relying primarily on LinkedIn to source and recruit candidates, does its use disparately impact one race or sex over another?

According to the most recently available data (c/o the Pew Research Center), the answer is no.

If men vs. women, or whites vs. blacks, or whites vs. Hispanics, are using LinkedIn in similar percentages, then, based on the data, it will be difficult to make a disparate impact claim on this big-data issue. Granted, the EEOC examined issues much more broadly than just social recruiting, but at least on this issue, and at least according to the available actual data, it looks like employer should be free to use LinkedIn to source candidates without fear of a discrimination claim.

Kudos to the EEOC for thinking outside of the box in trying to discover new paths of discrimination to address. I wonder, however, if when the EEOC gets around to opening that box, instead of finding Pandora’s evils, it will find a whole bunch of nothing.

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 28, 2016June 29, 2023

The Most Expensive Bottle of Orange Juice Ever

I bring you a first for the blog. A magic trick. Read along as the EEOC transforms a $1.69 bottle of OJ into $277,565.

I’ll let the EEOC explain its own magic:

A federal jury has found in favor of the EEOC in a federal disability discrimination lawsuit against the retail giant Dollar General…. EEOC had charged Dollar General with firing a cashier at its Maryville, Tenn., store because of her need to treat her diabetes.

According to EEOC’s suit, the cashier, an insulin-dependent diabetic, told her supervisor she was a diabetic and requested on several occasions that her supervisor allow her to keep juice near the register to prevent a hypoglycemic attack. At trial, the cashier testified that her supervisor told her that Dollar General did not allow employees to keep food or drink near the register. …

While alone in the store one day, the cashier drank orange juice prior to purchase, in violation of Dollar General’s “grazing” policy, in response to symptoms of a hypoglycemic attack and to protect the store. As soon as the medical emergency passed, the cashier paid for the bottle of orange juice that cost $1.69 plus tax. Later, the district manager and loss prevention manager appeared in the store to address inventory shrinkage and fired the cashier after she admitted to drinking orange juice prior to purchase. The store fired the employee even though it knew she drank the orange juice because of her diabetes and that she had requested to keep juice near the register. …

The jury returned a verdict … for EEOC and the victim, awarding the former cashier $27,565 in back pay and $250,000 in compensatory damages.

When an employee requests an accommodation that costs a grand total of $1.69, make the accommodation. Never mind that the employee’s manager was ignorant of the company’s accommodation policy that would have permitted the employee to keep a drink near her register.

Truthfully, there is no magic here, just a stunning failure of common sense, not to mention legal obligation.

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 27, 2016June 29, 2023

Can You Require Flu Shots for Your Employees?

As the calendar winds its way into autumn, and as the temperature starts to trend downward, we move into flu season. Which is why should pay special attention to this story from Employment Law 360:

A … hospital was sued by the U.S. Equal Employment Opportunity Commission in Pennsylvania federal court Friday, over allegedly firing six employees after it denied their request for a religious exemption from the flu vaccine.

According to the complaint, Saint Vincent Health Center maintained a policy that provided exemptions for medical or religious reasons, which allowed employees to wear face masks instead of receiving the violation. But it denied the exemptions in the case of the six employees, who were fired in January 2014.

So, can you require your employees to receive a flu shot as a condition of employment?

According to same EEOC that is suing the Pennsylvania hospital over this very issue, the answer is a qualified yes.

An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII (“more than de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA).

Thus, at least as far as the EEO laws are concerned, a private employer can require flu shots as long as you are willing to accommodate employees’ disabilities and religions.

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 12, 2016June 29, 2023

Forced Retirement Is an Age Discrimination No-no

The EEOC has sued a Colorado hospital for age discrimination. The key allegation? That it forced employees to resign because of their age. The lawsuit claims hospital managers made ageist comments, including that younger nurses could “dance around the older nurses” and that they preferred younger and “fresher” nurses.

According to Phoenix District EEOC Regional Attorney Mary Jo O’Neill, “Research shows that pervasive stereotypes about older workers still persist — for example, there are widespread stereotypes that older workers are less motivated, flexible, or trusting and that a younger workforce is preferable. These stereotypes are flatly untrue and must be recognized for what they are — prejudice and false assumptions.”

While not necessarily on point, this case does segue into an important issue — mandatory retirement. It’s still a fairly popular misconception that businesses can force employees to retire at a certain age.
In truth, with the exception of a few limited circumstances, mandatory retirement ages are about as close to a slam dunk case of illegal age discrimination you can find. The exceptions permit — but do not require — mandatory retirement:

At age 65 of executives or other employees in high, policy-making positions.
At age 55 for publicly employed firefighters and law enforcement officers.

Forcing an employee out is the same as requiring an employee to retire. While lessening duties and responsibilities, demotions, and reductions in pay could cause an older employee to retire, it could also cause that same employee to claim a constructive discharge. However, there is no law that says that an older employee does not have to meet the same legitimate expectations of the job as any other employee. If an older worker is not performing as needed or required, document and treat as you would any other employee.

Treat the employee’s performance, not the employee’s age.

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.

July 12, 2016June 29, 2023

The EEOC on Paternalism Vs. Pregnancy Discrimination

Paternalism and pregnant workers do not mix. Case in point? According to this EEOC press release, the agency has sued a North Carolina retail-furniture franchise for pregnancy discrimination.

According to EEOC’s complaint, the company hired Chantoni McBryde on June 1, 2015, and assigned her to work as a shop apprentice at the company’s temporary training facility in Dunn, North Carolina. The job required the use of various chemicals to repair furniture. On June 3, McBryde informed the company’s shop trainer that she was pregnant. Later that same day, McBryde was pulled into a meeting with the company’s shop trainer, shop manager and regional shop manager and was asked to confirm that she was pregnant. EEOC said that during the meeting, the regional shop manager showed McBryde a can of lacquer thinner that contained a warning that the contents could potentially pose a risk to a woman or her unborn child, and discussed the warning with McBryde. EEOC said that McBryde was then told that because she was pregnant, she could no longer work at the facility.

It appears that this employer was acting out of good intentions. It feared (reasonably or unreasonably) for the safety of this employee’s unborn child. That concern, however, does not excuse pregnancy discrimination. EEOC Charlotte District Office regional attorney Lynette Barnes puts it best: “Pregnant women have the right to make their own decisions about working while pregnant, including the risks they are willing to assume. Companies must not impose paternalistic notions on pregnant women as doing so can result in unlawful discrimination.”

Fears or outdated paternalistic notions about pregnancy (and the limits it may, or may not, impose on an employee) are off limits for employers. An employer has zero business trying to protect a pregnant worker or her fetus. Those decisions are left to the employee, and, as this case illustrates, the EEOC will not hesitate to help prove that point.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com.