Category: Archive

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ADA and Injury Toolkit

Inside, you’ll find the following items to help you in managing ADA, workers’ comp and return-to-work issues:


  • The importance of disability management


  • An overview of the major players and major issues you’ll deal with in the event of an injury


  • A short checklist of steps to take in the event of an injury


  • “Light duty” article


  • Six forms related to the accommodation process

You can find more information through the Research Center’s section on disabilities. Also, experts from the Job Accommodation Network (a federally funded consulting group) are available to answer your ADA-related questions by e-mail. Contact them at jan@jan.icdi.wvu.edu. A consultant who specializes in the area you inquire about will get back to you.


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

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Where in the World Are You

Going global isn’t just a matter of deciding, “OK — we’re going to branch out.” Naturally, there are degrees of global business that you’ll fit into as you grow.


So where are you along the “globalization continuum”? Here are some definitions provided by the consultants at Arthur Andersen.


International
This is an organization that is predominately domestic and has some international business activity. The company’s business strategy is generally centralized at the headquarters, while its international businesses are often managed independently of the domestic organization, using separate resources and technology.


Multinational
This is an organization that has business activities in multiple countries. Each country’s operations are managed as separate entities by local employees, with a corporate headquarters coordinating the strategy, resources and technology among these entities.


Global
This is an organization that has operations around the world, and has strategies, resources, and technology that are shared and leveraged around the world, regardless of geographic boundaries.


SOURCE: “The Globalization of Human Resources,” a study by The Human Capital Services of Arthur Andersen, 1999.


Workforce, April 2000, Vol. 79, No. 4, p. 74.


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HR 101 Global

This special monthly section gives you information you need to know about important HR topics, including articles, tips and charts, as well as links to product information.

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Surveying the HR Landscape

One of the great contradictions of our time is that in the Age of Information, many companies still don’t have a clue how their workforce thinks and feels. HR directors — and CEOs for that matter — muddle through an endless array of choices based only on a partial understanding of how a given decision, directive or program affects the mentality and productivity of workers. The 1997 UPS strike and last February’s American Airlines pilots’ walkout are perfect examples of a disconnect between management and the workforce.


Of course, most outcomes aren’t so traumatic, but without soliciting feedback from employees, ongoing problems can chip away at productivity and profits. All too often, corporate programs and HR initiatives — ranging from strategic alliances to a new benefits package — begin with trumpets blaring. Then, weeks or months later, they fade quietly into oblivion. Executives tick off a number of reasons for the failure. But, in the end, it almost always boils down to the human element. If workers don’t understand or accept a new program, even the best execution won’t produce positive results.


That might not seem like rocket science, but filling the gap between corporate expectations and reality might make you feel as though you need a booster engine. Though companies, and particularly human resources departments, have used employee feedback and surveys for years to design and refine programs, the capabilities now exist to build surveying into a powerful enterprise tool — one that can help craft policy and programs on the fly, and deal with the fast-changing business conditions of today.


Now may be the time to renovate your survey process.
Consider the HR department at MindSpring Enterprises Inc., an Atlanta-based Internet service provider. The 1,900-employee company used to conduct surveys manually by tabulating responses and importing them into a spreadsheet — a costly and time consuming process, says Cindy Buell, director of leadership and organization development.


Earlier this year, the HR department began using Saja Software’s Survey Select software to gain feedback about core values. After drafting the questions, the software converted the survey into HTML. Buell sent it to the Webmaster, who placed it on the firm’s intranet. Five weeks later, corporate executives were discussing results — and showing off PowerPoint® presentations with elaborate charts to employees at nine locations around the country. “The software has renovated the entire survey process. It has allowed us to do the job faster, cheaper and better,” Buell explains. Team-effectiveness surveys and 360-degree evaluations are now in the works, she adds.


Indeed, the power of the PC combined with corporate networks, including intranets, is forever changing the face of surveying. A Web site can now become a research and analysis tool that allows management to put its pulse firmly on workers’ thoughts, ideas and feelings. Specialized survey software along with e-mail or floppy disks can help HR conduct 360-degree assessments, design more effective compensation packages and quickly understand what workers want in retirement benefits, training and more. In fact, by tracking answers over time, it’s possible to measure organizational change.


Surveying tools from companies like Scantron Technologies, Training Technologies Inc., Saja Software and others can automate the entire process. Instead of generating paper, mailing it out and waiting for responses to trickle in — only to have someone in HR manually tabulate results — it’s possible to use pre-loaded templates for survey design, and automated tools for administration and analysis. Instead of spending weeks to gather information that’s nearly obsolete by the time anyone can act on the results, it’s realistic to design a simple survey in the morning and take action the same afternoon.


There’s a right and wrong way to conduct an e-survey.
However, navigating this new electronic frontier is no simple matter. It doesn’t take a genius to figure out that every technological opportunity can easily become a black hole of money and time.


Instead of mining for answers, an HR department can find itself setting off organizational landmines — as people become confused and systems bog down with inefficiency. In fact, even the best and most highly automated survey tools can’t solve the fundamental challenge of asking the right questions and finding the right answers. That requires knowledgeable people who must design systems and structures that make survey solutions work.


It’s also wise to understand a few realities about the new media. Effective surveying is more than the sum of technological capabilities. Just because you can send out a survey with a few clicks of a mouse doesn’t mean you should. Just because you post a survey on your intranet doesn’t mean you’re going to get the desired number of responses. Achieving maximum results means recognizing the nuances of the survey medium — Web, e-mail, floppy disk and more — and tailoring the entire process appropriately.


For example, if you opt to send out an e-mail questionnaire, your odds for success will likely increase if you keep surveys relatively short — usually no more than 25 questions — and create a meaningful subject line. It’s also essential to recognize that e-mail is not confidential, and only those with e-mail addresses can participate. The latter fact can skew results by limiting representation or polling an invalid sampling.


On the other hand, a Web-based survey isn’t a license for prodding and poking into every aspect of a person’s work life. Every time you place a survey on the intranet, you’re competing with reams of other data and information. You might know that the subject of the survey is important, but a worker is likely to tune the survey out if he or she feels inundated by questions. As a result, it’s crucial to market it, advertise it and promote it — with catchy headlines and graphics. It’s also a good idea to provide incentives to participate, whether it’s a raffle for an extra vacation day or a pair of tickets to a performance.


Finally, it’s essential to provide employees with results, whenever possible. At MindSpring, an executive discusses results with groups of employees at their offices. Other companies let employees view a live summary of results from their browser once they’ve voted. Every time they click to the page where they voted, they can view updated results.


All this can make the entire process fun, interactive and interesting. “It can transform surveying from a rigid event into an ongoing method of communication,” says Marcie Levine, president of Saja Software in Longmont, Colorado. But it doesn’t have to stop there. By routing the appropriate data to the appropriate people in the organization — essentially creating different views of the same data — it’s possible to fully leverage the power of information. That can allow different departments, even different teams, to compare and contrast performance and results.


Of course, electronic surveys don’t work for every organization in every situation. Some firms simply have too many people in different locations — with too few of them using PCs. In such instances, paper and snail mail might remain the best solutions. But, more often than not, e-surveys offer tremendous advantages. They can cut costs by as much as 70 percent over traditional methods. They also can speed the surveying process and allow management to understand data far more effectively.


When it comes to reaching across an organization and surveying the landscape, the answer increasingly lies in the questions.


Workforce, August 1999, Vol. 78, No. 8, pp. 100-101.


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Table of Contents April 2000

Cover Story


Employee, Cover Thyself
By Shari Caudron
Employers are absorbing rising health care costs to prevent employees from jumping ship in these lean labor times. There is a solution to controlling the high costs, but employers can’t seem to look it in the eye: health care vouchers — which would leave choice of plan and coverage up to the employee.


Features


Net Gains to HR Technology
By Samuel Greengard
Now that many human resources departments have been introduced to automated bliss, the new step is to conduct HR entirely online: e-HR. Do you know what HR is capable of doing with newer systems, some software, and an Internet connection? The possibilities are endless.


Minority Execs Want an Even Break
By Sharon Davis
Employers may encourage hiring a diverse workforce. But even though there’s been an effort to hire minority executives, companies are doing little to keep them in the door. Learn what minority executives are looking for and how you can create an environment where they can thrive.


Are You Ready to Outsource Staffing?
By Jennifer Laabs
Many HR departments are choosing to outsource day-to-day tasks. Yet with a function as important as staffing, especially when the national unemployment rate is so low, is recruitment something you want to put in the hands of a third party? The key is to know what tasks are “outsource-able” and which vendor will suit you best.


The Hunt for Public Sector IT
By Brenda Paik Sunoo
So you think you have IT recruitment problems? Take a look at public organizations — they can’t even come close to some of the extravagant ways several companies are using to attract tech talent. However, they are discovering alternative ways to stay in the recruiting game. Learn how the public sector is finding and keeping IT workers.


HR 101


Global HR Strategies
In this month’s HR 101, we offer tools you can use to push global HR strategy at your organization. Here you’ll find a monthly checklist of global HR tasks, and data to compare how you’re doing with other growing companies.


Departments


On the Contrary
And the Point Is?


InfoWise
You’ve Been Hacked!


The Buzz
Bullying in the Workplace Often Goes Unnoticed


Forte
Roche Chooses Health By Promoting Prevention


Legal Insight
Internet Recruitment Limits Demographic Scope


Working Wounded
How Do I Connect With an Audience?

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Documenting Applicant_Employee Medical Review

This form is filled out by the physician or medical examiner to provide input to the employer about the employee’s medical condition.


CONFIDENTIAL INFORMATION, ACCESS LIMITED TO:



APPLICANT / EMPLOYEE MEDICAL REVIEW


 


Physician, please complete this form and return to:


Employer: _________________________________
Attention: _________________________________


Address/Telephone:__________________________
__________________________________________


Including any pertinent medical reports by:
______________________.


Thank you.


Medical information may be required to determine if the individual meets the ADA definition of an individual with a disability and is entitled to an accommodation. EEOC TAM 6.6 Additionally, the employer may request medical documentation of functional limitations to support an accommodation request. EEOC TAM 3.6


 


Applicant / Employee Name:
__________________________________________________________


Job Title:
__________________________________________________________


 


Medical Review


I have reviewed the job description for this job title and examined the applicant/employee and it is my opinion that:


Applicant / Employee is currently able to perform all job functions described without posing a direct threat to the safety of self or others.   Yes ____    No _____


IF NO, Applicant / Employee has the following limitations in relation to described job functions.



Functional Limitation(s)  Duration


(Please be specific in your description)   (State period of time)


_________________________________________________   _________________________
_________________________________________________   _________________________
_________________________________________________   _________________________
_________________________________________________   _________________________



Medical Diagnosis:
____________________________________________________________


Additional Comments:
_________________________________________________________________________________________
_________________________________________________________________________________________
_________________________________________________________________________________________


 


 


Please complete the risk assessment portion on Page Two of this form


The assessment of risk must be based on reasonable medical judgment that relies on the most current medical knowledge and/or the best available objective evidence. EEOC TAM 4.5(4).


It is my opinion that the applicant/employee meets the health and safety requirements of this position.   Yes ___    No ____
(If no, complete the following section)


 


DIRECT THREAT RISK ASSESSMENT



The following factors must be considered in respect to the specific aspect of the disability that would pose a direct threat . The risk may not be speculative or temporary. It must be a significant risk of substantial harm. EEOC TAM 4.5(2)


(Please complete the following statements.)


Aspect of disability causing risk is: ____________________________


The type of harm this risk will cause is: __________________________
__________________________________________________________


(Check all statements that apply.)


______ The aspect of disability described will pose a risk for an extended period of time.


______ The resulting harm from this risk will be substantial.


______ It is highly probable that this harm will occur.


______ This significant risk of substantial harm is current or immediate.


Comments:
__________________________________________________________
__________________________________________________________
__________________________________________________________



Optional: Did the applicant and/or can you suggest any accommodations that could reduce or eliminate the health or safety risk and assist the individual to perform the essential functions of the job safely?
__________________________________________________________
__________________________________________________________
__________________________________________________________


Physician Signature
__________________________________________________________


Date _________________________


Medical Specialty
__________________________________________________________


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


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Interview Questions Legal or Illegal (Live Copy)

Employment application forms and pre-employment interviews are the appropriate instruments for eliminating, at an early stage, unqualified or unsuitable persons from consideration for employment.


However, applications and interviews can also be used to restrict or deny employment opportunities for women and members of minority groups.


Court rulings and Equal Employment Opportunity Commission (“EEOC”) guidelines prohibit the use of all pre-employment inquiries that disproportionately screen out members of minority groups or members of one sex and are not valid predictors of successful job performance or which cannot be justified by “business necessity.” See Griggs v. Duke Power Co., 401 U.S. 424 (1971).


The guiding principal behind any questions to a job applicant is: Can the employer demonstrate a job-related necessity for asking the question? Both the intent behind the question and how the information is to be used by the employer are important to determining whether a question is an appropriate pre-employment inquiry. That is to say, an employer should consider whether the answers to the question, if used in making the selection, will adversely effect and screen out minorities or members of one sex.


The following is a representative list of questions with a short analysis of each question to determine whether it is an unacceptable or acceptable question and why. It is not all-inclusive.


  1. How many children do you have?
    This question is inappropriate for two reasons.

    First, questions regarding marital status, number of children and childcare arrangements are not appropriate because they may be seen as being based upon the applicant’s gender. Under Title VII of the Civil Rights Act, it is unlawful to deny a female applicant employment because she has children or is planning to have a child at some future date. Second, this question is an inappropriate way of asking about an otherwise appropriate subject: availability to work.

    Questions asked to availability to work should be job-related. For example: What hours can you work? What shift(s) can you work? Can you work on weekends and/or holidays? Are there specific times that you cannot work? Do you have responsibilities other than work that will interfere with specific job requirements such as traveling?


  2. What country are your parents from?
    You may not ask an applicant where he/she was born or where his/her parents were born. You may ask if the applicant is eligible to work in the United States. Under Title VII pre-employment inquiries concerning national origin are not considered violations of the law in and of themselves.

    However, inquiries that either directly or indirectly disclose such information, unless otherwise explained, may constitute evidence of discrimination prohibited by Title VII. Some state employment practice laws expressly prohibit inquiries on employment applications concerning the applicant’s national origin. In some states, it may also be considered illegal to seek related data, such as the birth, place of birth or citizenship of parents, which could indirectly reveal national origin. 


  3. What is your native language?
    When an English language skill is not a requirement of the work to be performed, and an employer uses an English language proficiency test or requires English language proficiency, an adverse effect upon a particular minority group may result, creating a violation of Title VII.

    It is also inappropriate to inquire how an applicant acquired the ability to read, write or speak a foreign language. However, if the job requires additional languages, an employer may legitimately inquire into languages the applicant speaks and writes fluently. 


  4. What is your height? What is your weight?
    The EEOC and the courts have ruled minimum height and weight requirements to be illegal if they screen out a disproportionate number of minority group individuals or women, and the employer cannot show that these standards are essential to the safe performance of a job in question. See Davis v. County of Los Angeles, 655 F.2d 1334 (9th Cir. 1977), vacated and remanded as moot on other grounds, 440 U.S. 625 (1979); Dothard v. Rawlinson, 433 U.S. 321 (1977). 


  5. Have you ever been arrested?
    Questions relating to an applicant’s arrest record are improper, while questions of an applicant’s conviction record may be asked if job-related. The EEOC and many states prohibit the use of arrest records for employment decisions because they are inherently biased against applicants in minority groups in other protected classes.

    The EEOC has issued a Revised Policy Statement covering the use of conviction by employers in making employment decisions:

    First, the employer must establish a business necessity for use of an applicant’s conviction record in its employment decision. In establishing business necessity, the employer must consider three factors to justify use of a conviction record: (1) nature and gravity of the offense for which convicted; (2) amount of time that has elapsed since the applicant’s conviction and/or completion of sentence; and (3) the nature of the job in question as it relates to the nature of the offense committed.

    Second, the EEOC’s Revised Policy Statement eliminated the existing requirement that employers consider the applicant’s prior employment history, along with rehabilitation efforts, if any. The Revised Policy Statement requires that the employer consider job-relatedness of the conviction, plus the lapse of time between the conviction and the current job selection process.


  6. Do you own your own home?
    An interviewer should not ask if the applicant owns or rents a home or car, or if wages have been previously garnished, or if the applicant has ever declared bankruptcy, unless financial considerations exist for the job in question.

    Any employer who relies on consumer credit reports in its employment process must comply with the Fair Credit Reporting Act of 1970 and the Consumer Credit Reporting Reform Act of 1996.


  7. Did you serve in the military? What type of discharge did you receive?
    You may not ask what type of discharge the applicant received from a military service.

    You may ask whether or not the applicant has served in the military, period of service, rank at time of discharge, and type of training and work experience received while in the service. 


  8. How old are you?
    The Age Discrimination in Employment Act (“ADEA”) prohibits discrimination on the basis of age with respect to individuals over the age of 40. Requests that an applicant state his age may tend to deter older applicants, and may otherwise indicate discrimination based on age.

    Consequently, employment application forms which request information such as age will be closely scrutinized to assure that the request is for permissible purpose and not for purposes prescribed by the ADEA.

    Permissible purposes are limited to when age requirement or limit is a bona fide job application or is based on reasonable factors other than age. Under the EEOC’s Age Discrimination Interpretive Rules, requests for date of birth on the employment application are permissible, provided that an appropriate disclaimer is shown.

    In addition, any recruiting effort that is age-biased, such as seeking “recent graduates” or any question during the interview process that deters employment because of age is unlawful. 


  9. What church do you go to? What religion are you?
    There are no job-related considerations that would justify asking about religious beliefs or convictions unless your organization is a religious institution, in which case you may give preference to individuals of your own religion.

    In addition, inquiries as to the applicant’s religion are also not an appropriate method of determining availability to work. Employers have an obligation to accommodate the religious beliefs of employees and/or applicants unless to do so would cause undue economic hardship.

    The EEOC has determined that the use of pre-employment inquiries that determine an applicant’s availability have an exclusionary effect on the employment opportunities on persons following certain religious practices.

    Thus, questions relating to availability for work on Friday evenings, Saturdays or holidays should not be asked unless an employer can show that the questions have not had an exclusionary effect on its employees or applicants who would need an accommodation for their religious practices, that the questions are otherwise justified, and that there are no alternative procedures which would have a lessor exclusionary effect. EEOC Guidelines on Discrimination Because of Religion, 29 CFR 1605. 


  10. Are you a United States citizen?
    This question is not appropriate as a pre-employment inquiry.

    The EEOC Guidelines on Discrimination Because of National Origin indicate that consideration of an applicant’s citizenship may constitute evidence of discrimination on the basis of national origin.

    The law protects all individuals, both citizens and non-citizens domiciled or residing in the United States against discrimination on the basis of race, color, religion, sex or national origin.

    A person who is a lawfully immigrated alien, legally eligible to work, may not be discriminated against on the basis of his/her citizenship, except in the interest of national security, as determined under a United States statute or a presidential executive order regarding the particular position or premises in question. 


  11. Do you have any disabilities?
    The Americans with Disabilities Act (“ADA”) prohibits employers from asking disability-related questions to employment applicants. A “disability-related question” is any question that is likely to elicit information about disability. Under the ADA, an employer cannot lawfully ask an applicant whether he has a particular disability nor ask questions that are closely related to a disability.

    An employer, for example, generally may not ask an applicant whether the applicant will need reasonable accommodations for the job. An employer may not ask an applicant how many sick days he took with a previous employer; this question directly relates to possible disabilities.

    An employer may not ask an applicant about his worker’s compensation history. A question of this nature is viewed as relating directly to the severity of the applicant’s impairments. An employer may not ask an applicant about his current or prior lawful drug use. For example, an employer cannot ask an applicant, “What medications are you currently taking?”

    An employer may ask an applicant whether he can perform the essential functions of the job for which he is applying, with or without reasonable accommodation. Or ask applicants to describe how they would perform any and all job functions, as long as all applicants in the job category are asked to do this.

    When an employer reasonably believes that an applicant will not be able to perform a job function because of a known disability, the employer may ask the applicant to describe or demonstrate how he would perform the function.

    If the applicant has an obvious disability or voluntarily discloses a hidden disability to the employer, the employer may ask the applicant whether he needs reasonable accommodations and what types of reasonable accommodations he will need.

    For example, an applicant for a receptionist’s position voluntarily discloses that he has diabetes and will need to take breaks to take his medication. The employer may ask the applicant questions about the reasonable accommodations he will need, such as how often he will need to take breaks and how long the breaks must be.

    An employer should inform all applicants of the essential functions of the position and of the employer’s attendance requirements. The employer may then ask whether the applicant will be able to perform these functions and meet the attendance requirements. An employer may also ask about an applicant’s attendance record with a prior employer.

    This question is not considered to be disability-related, because there may be many reasons unrelated to disability why a person may not have met the attendance requirements of a previous job. 


  12. When was the last time you used illegal drugs?
    An employer may ask applicants about current and prior illegal use of drugs. An individual who is currently using illegal drugs is not protected under the ADA. For example, an employer may ask the following of an applicant: “Do you currently use illegal drugs? Have you ever used illegal drugs? What illegal drugs have you used in the last six months?”

    These questions are not likely to tell the employer anything about whether the applicant is addicted to drugs. On the other hand, questions that ask how frequently the applicant has used illegal drugs are likely to elicit information about whether the applicant was a past drug addict. An employer may not ask questions that refer to past drug addiction. 


  13. Do you drink alcoholic beverages?
    An employer may ask an applicant questions about his drinking habits, unless a particular question is likely to elicit information about alcoholism, which is a disability under the ADA. An employer may ask an applicant whether he drinks alcohol, or whether he has been convicted for driving under the influence of alcohol. These questions do not reveal whether someone has alcoholism.

    On the other hand, questions about how much alcohol an applicant drinks or whether he as participated in an alcohol rehabilitation program are not permitted. Questions of this nature are likely to elicit information about whether the applicant has alcoholism. 


  14. Have you ever undergone psychiatric evaluation?
    This is not an appropriate question.

    The EEOC enforcement guidance on psychiatric disabilities limits the questions asked of any applicant about any psychiatric disability.

    Under the ADA, the term, “psychiatric disability,” includes mental impairments, such as any mental or psychological disorder including emotional or mental illness. It includes major depression, bipolar disorder and anxiety disorders such as panic disorder, obsessive-compulsive disorder and post-traumatic stress disorder. A mental impairment also includes schizophrenia and personality disorders.

    As with physical disabilities, an employer is not permitted to ask applicants any questions that are likely to elicit information about a psychiatric disability. A limited exception comes into play when the employer reasonably believes that an applicant has a psychiatric disability for which the applicant will require accommodation.

    Generally speaking, an employer can only reasonably believe that an applicant will need accommodation if the applicant discloses his psychiatric disability to the employer during the hiring process or if the applicant tells the employer during the hiring process that he will need such accommodation. 


  15. Are you dating anyone right now?
    While this question may not be evidence of discrimination, interviewers should avoid questions of a personal nature. Personal questions are generally irrelevant to the hiring process, and may give rise to claims for invasion of privacy or sexual harassment.

    There should be some direct correlation between the information requested and the applicant’s ability to perform the functions of the job for which he is applying. If there is no legitimate business purpose for a question, don’t ask it.  


  16. When did you graduate from high school?
    This type of question can be considered an indirect inquiry as to an applicant’s age and may create an inference of age discrimination. While such a question does not inherently violate the Age Discrimination in Employment Act, a more appropriate approach is to simply ask the interviewee if he or she has a high school diploma or equivalent.

    Further, an employer must consider whether a high school education is necessitated by the duties and functions of the position for which applicants are being interviewed. The United States Supreme Court has found an employer’s requirement of a high school education discriminatory where statistics showed that such a requirement operated to disqualify blacks at a substantially higher rate than whites and there was not evidence that the requirement was significantly related to successful job performance.


    The standard applies to all groups protected under Title VII and to all questions related to educational achievement, if no job-related requirement or business necessity exists. While an employer may generally inquire as to the applicant’s educational background, there must be some degree of relationship between the level of education required for the position and the job duties of the position.


  17. Do you have any family members who work here now or who have worked here in the past?
    Information about friends or relatives working for an employer is generally not relevant to an applicant’s competence.

    Requesting such information may be unlawful if it creates a preference for relatives of current employees in the selection process and the composition of the present workforce is such that this preference reduces or eliminates employment opportunities for members of protected groups.

    As a general rule, however, unless an adverse effect on women or minorities can be shown, nepotism is not illegal. 


  18. What clubs or organizations do you belong to?
    As phrased above, this question is unacceptable because it could be seen as seeking information that is not job-related and which could relate to gender, national origin, religion or other status protected under Title VII.

    It would be more appropriate to ask: “What professional or trade groups do you belong to that you consider relevant to your ability to perform this job?” This question would elicit similar information, but only to the extent that it is relevant to the job in question. 


  19. What is your maiden name?
    This question could be seen as an inappropriate inquiry under Title VII because it indirectly asks a female applicant to disclose information regarding her marital status.

    Questions about marital status are frequently used to discriminate against women and to deny opportunities for female applicants. If you need to contact a former employer, you may, however, ask all applicants if they have ever been known by any other name. 


  20. What is your race?
    Title VII prohibits discrimination based on race and color. Again, pre-employment inquires concerning protected status are not considered violations of the law in and of themselves. However, this inquiry directly asks an applicant to disclose information regarding a protected characteristic, and, unless otherwise explained, may constitute evidence of discrimination prohibited by Title VII.

    An employer may legitimately obtain information needed to create and implement an affirmative action plan, or to meet other government recordkeeping requirements, or even for the employer’s own efforts to recruit minorities and/or women.

    The information should be kept separate from other employee records to ensure that it is not used to discriminate in making personnel decisions. One means of collecting such data that has been approved by the courts is the use of a “tear-off sheet,” which is an anonymous sheet that is separated from the application and used only for purposes unrelated to the selection decision.


If It’s Not Job-Related — Don’t Ask
Data on such matters as marital status, number and age of children, and similar issues, which could be used in a discriminatory manner in making employment decisions, but which are necessary for insurance, reporting requirements or other business purposes can and should be obtained if a person has been employed, not by means of an application form or a pre-employment interview.


It is reasonable to assume that all questions on an application form, or any pre-employment interview are for some purpose, and that selection or hiring decisions are made on the basis of the answers given.


When facing charges of discrimination, the employer bears the burden of proving that answers to all questions on application forms or in oral interviews are not used in making hiring and placement decisions in a discriminatory manner prohibited by the law.


The employer must establish that the questions do not seek information other than that which is essential to evaluation of an applicant’s qualifications for employment. It is, therefore, in an employer’s own self-interest to carefully review all procedures used in screening applicants for employment, eliminating or altering any not justified by business necessity.


This article is prepared in summary form and is not to be construed as legal advice or opinion on any specific fact or circumstance.


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Documenting the Accommodation Consideration_Selection Process Under the ADA

This form is used to note what options the employer considered, what they were able to do/not do, and what the employer reasons were for their decision.


 


CONFIDENTIAL INFORMATION, ACCESS LIMITED TO:




ACCOMMODATION CONSIDERATION / SELECTION


When an individual with a disability is qualified to perform the essential functions, except for functions that cannot be performed because of related limitations and existing job barriers, the employer must try to find a reasonable accommodation to reduce or eliminate these barriers. EEOC TAM 3.2



Applicant / Employee Name:



Reason for Accommodation:



Job Related Limitation:



Direct Threat:



Existing Barrier(s):




An employer should always consult the person with the disability as the first step in considering accommodation. EEOC TAM 3.7



Accommodation(s) Suggested by and/or Discussed with Applicant / Employee:


1.

 

2.

 

3.

 

4.

 

 


If consultation does not identify an appropriate accommodation, technical assistance is suggested. EEOC TAM 3.11(4b)



 

Internal/External Resource(s) Consulted

Date

Outcome

1.

   

2.

   

3.

   

4.

   

 


 

Accommodation(s) Considered:

Cost

Source

1.

   

2.

   

3.

   

4.

   

 


Effective Accommodation(s) Considered Reasonable:


1.

 

2.

 

3.

 

 


The employer is free to choose among effective accommodations; however the individual’s preference should be considered – all things being equal. The accommodation selected should best serve the needs of the individual and the employer. EEOC TAM 3.8(4). The accommodation need not be the best available as long as it is effective. EEOC TAM 3.4



Selected Accommodation:

 

Total Cost:

 

Rationale for Selection:

 

 


Financial Assistance Obtained: (Specify amount next to source) (EEOC TAM 3.11)


Tax Credit for Small Business:

 

Tax Deduction/Barrier Removal:

 

Targeted Tax Credit:

 

Applicant/Employee:

 

Insurance: (Identify type):

 

Other: (Identify source)

 

Net Cost:(Total cost, less amount received from other sources):

 

 


Is this accommodation part of a Vocational Rehabilitation Plan? Yes or No


Accommodation device(s) or equipment is owned by:
Employee ___   Employer ___   Insurance Company ___


Other:
If other, please specify:___________________________________________


 


An individual is not required to accept an accommodation; however, if the individual refuses an accommodation necessary to perform essential job functions and as a result cannot perform those functions, the individual may not be considered qualified.


EEOC TAM 3.8 (III-II)



Applicant / Employee Rejected Accommodation:

 

Reason(s) Given:


 

 


 


Completed By:
 Signature _________________________________________
 Title_________________________________________


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

Posted on

Who and What You’ll Deal With if an Employee is Hurt

The ability to effectively communicate with the various professionals involved with your injured employee’s claim, medical treatment, recovery and return to work is an essential skill of the supervisor. Your primary role in this regard is a source of critical information about the nature of the employee’s job, including any skills and abilities that are essential for successful performance.


To help you understand your responsibilities, it is important that you understand the various roles and perspectives of the professionals that you may be required to deal with during your employee’s illness/injury.


Claims Coordinator
This individual (who may also serve as the Return-to-Work Coordinator) will be your key contact throughout the process. He/she will have the overall responsibility to ensure that your employee receives the workers’ compensation benefits and services that are legally required. In most cases, the Claims Coordinator will serve as a liaison between you and the Insurance Carrier claims adjuster, the treating physician, and the vocational rehabilitation specialist.


Personnel Transactions Specialist
A Personnel Specialist will be involved in requesting and monitoring benefit payments made for IDL and TD. The Personnel Specialist is available to advise employees about benefit levels and payment schedules.


The Insurance Carrier Claims Adjuster
The adjuster is the person who has the responsibility to monitor all payments made directly to the employee or to the employee’s physician, physical therapist, and vocational rehabilitation counselor. The claims adjuster will communicate directly with the employee’s physician and make a determination regarding the appropriateness of the treatment being received by the employee and the general prognosis for the employee’s return to work.


The adjuster may need a variety of different kinds of information from you, including the exact nature of the injury, the names of witnesses, the employee’s duty statement and work history, and opportunities for light duty assignments.


Treating Physician and Medical Examiner
The term “treating physician” here is used to describe anyone who, by law, can render medical treatments to your employee. This may include a medical doctor, a chiropractor, an acupuncturist, a psychologist, or a physical therapist. This doctor will control the primary care of your injured worker.


It is unusual, but not inappropriate, for you to have direct contact with a treating physician. Most of the time, however, your communication to the physician will be through the Claims Coordinator or Claims Adjuster.


There are also physicians who serve as professional medical examiners in workers’ compensation cases. There are three different types of medical examiners: an Agreed Medical Examiner (AME), an Independent Medical Examiner (IME) and a Qualified Medical Examiner (QME). As a supervisor, you do not need to know the circumstances under which each of these specialists may be used in a case.


However, you need to understand that it is not unusual for other physicians and medical specialists, besides the employee’s treating physician, to be involved in making medical assessments about the extent of the employee’s illness or injury. These medical examiners typically are asked for a “second opinion” in cases where there is some dispute over the treating physicians findings or assessment of the prognosis or prescribed treatment of the injured employee.


Vocational Rehabilitation Counselor
The Vocational Rehabilitation Counselor (VRC) is the person at the Insurance Carrier who has the responsibility to coordinate the provision of all vocational rehabilitation benefits for an employee.


Qualified Rehabilitation Representative
Not every case will involve a Qualified Rehabilitation Representative (QRR). Such professionals are generally only involved when the employee is seriously injured and will need some special skills assessment or retraining in order to return to his/her current job or another job. The QRR will be extremely interested in the specific job duties that the employee is expected to perform and any requirements that may be needed to accommodate the employee in order for him/her to resume these job duties.


This information will be needed so that the QRR can develop a comprehensive rehabilitation plan for your employee to return to work. Only if the employee’s disability clearly precludes return to the normal and customary duties, will the vocational rehabilitation plan be directed to other types of employment.


Return-to-Work Coordinator
As indicated, earlier, this individual will work for your employer and may be the same individual as the Claims Coordinator. The role of the Return-to-Work Coordinator is to assist the employee and the supervisor to explore all alternatives for light duty, job restructuring and reasonable accommodation, so that the employee can return to work as soon as it is medically feasible to do so.


Applicant’s Attorney
The “applicant’s attorney” is the injured employee’s attorney. Generally speaking, you will not be communicating directly with the employee’s attorney. When an employee is represented by an attorney, communication becomes very formal and it is handled by the staff at the Insurance Carrier.


Identifying the Essential Functions of the Job


Duty Statement/Job Description
It is unlikely that the duty statements that you currently prepare for your employees will be adequate to assist the workers’ compensation professionals in the event that one of your employees is injured on the job.


General duty statements do not contain the level of detail about the physical/mental requirements of the job that would assist a treating physician or a vocational rehabilitation counselor to determine what, if any, job restrictions the injured employee may have when he/she returns to the job.


For example, the treating physician may need to know how much walking, sitting, lifting, typing, etc., is needed to perform the required duties. If a certain job can be done in various positions (either standing or sitting), then such information may be very helpful to the physician in determining if the employee can return to work.


If a certain task is absolutely essential to performing the duties and no physical variation is possible, then the physician will make a determination if the injury precludes performance of that task.


For example, if a police officer breaks his/her trigger finger and has restriction in the ability to shoot a gun, which is determined absolutely essential to successful and safe performance of the job, then the doctor will conclude that the employee is incapable of returning to duty until the finger is fully healed.


Only the supervisor can “paint a picture” for the treating physician so that he/she has a clear understanding of what it physically and mentally takes to get the job done. Therefore, you may be asked to assist in preparing special, detailed, job descriptions for employees who are injured. Your Claims Coordinator or the Claims Adjuster should be able to provide you with sample job descriptions and assist you to develop them as required.


Knowledge of the Job Demands
It may not surprise you to know that most supervisors have no idea what are the actual physical and mental demands of the jobs performed by their employees unless they have performed those jobs personally.


Therefore, it may be important for you to have your employees identify the physical and mental demands of their jobs BEFORE they are injured. This is especially important for employees who must lift heavy weights in the course of their duties (whether the weight is an object in the stock room, or a patient in a hospital).


Vision, hearing, and physical agility requirements may be equally important to successful job performance. Mental abilities such as good recall or organization skills are critical in some jobs, but not in others. In any event, you should know the demands of each of the jobs in your unit in sufficiently precise terms so that you can describe them with a reasonably high degree of accuracy.


For example … “the employee must be able to walk approximately ten feet, moving (note: not carrying) a 30 pound box, 12-15 times each day” … or … “the employee must be able to type (sitting or standing?), from printed text, for 90 minutes straight without a break” … or … “the employee must be able to concentrate and verbally answer customer information requests, using data from a computer terminal, continuously for periods up to one and one-half hours.”


Responding to Inquiries/Requests


Whether the inquiry related to the accident investigation or the employee’s job duties, you should respond promptly to any inquiry related to a workers’ compensation claim. In many cases, the time frames for response are set in State labor Code statute and delays can result in serious penalties against the employer. Delays can cost the employer many extra dollars in benefits and services that may not be necessary. In all cases, your input is essential to effective claims management.


Working with Employer Workers’ Compensation Experts


As stated early, your employer has expert staff assigned to assist you with every aspect of the workers’ compensation system. Work closely with them and provide them with the information and support that they need to do a good job for you, for your employee and for your department.


Of particular importance is your willingness to cooperate with the Return-to-Work Coordinator in designing a light duty assignment for your injured employee or possibly a permanent restructuring of a job to accommodate the employee’s successful return.


You must attend all Return-to-Work Committee meetings where your employee’s case is scheduled for discussion. It is essential that you maintain an open mind to suggestions that others have regarding ways in which you can modify physical layout or operating procedures in order to increase the probability of a successful injured employee placement.


Keeping the Injured Worker Informed of Progress


The only person who is more “in the dark” about workers’ compensation than you are is your injured employee. Keep him/her informed regarding efforts that are being made to provide benefits and services. Let the employee know that you are working hard to make it possible for him/her to return to work as soon as possible. Keep all communication positive and sincere.


Record-keeping Requirements


At some point, it may become necessary for you to document your efforts regarding accident investigation and/or return-to-work efforts. Make notes regarding contacts with the employee, department staff, other workers’ compensation professionals, physicians and counselors. In the event that you are ever requested to testify before the Workers’ Compensation Appeals Board, your notes regarding dates, contacts, and actions will prove invaluable.


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


Posted on

Request for Reasonable Accommodation

The employee completes this form to make their accommodation needs known to the employer.


CONFIDENTIAL INFORMATION, ACCESS LIMITED TO:


REQUEST FOR REASONABLE ACCOMMODATION


Applicant (     )     Employee (     )


Name: _______________________

Date: ________________

Position: _______________________

Dept.: ________________

This information is voluntary and will in no way influence an employment decision. If you are an individual with a disability who needs an accommodation, _________________ is committed to providing reasonable accommodation to qualified individuals to help them participate in pre-employment testing and/or perform the job satisfactorily and safely. Please assist us by completing this form and specifying any accommodation you may need. Your information will be kept confidential and used in compliance with applicable law and _______________________ policy on Reasonable Accommodation.


Describe the limitation(s) or condition that this request is based on:




Do you require assistance for pre-employment testing?
      Yes or No
If yes, please specify what accommodation you require:




Which essential job task or tasks are you unable to perform without reasonable accommodation?




Which marginal job task or tasks are you unable to perform?




Identify any accommodation that would assist you in performing the essential job tasks in question. (This can include special equipment or methods, changes in the physical layout, etc.)




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