When a medical or mental condition prevents an employee from working at full capacity, the situation can quickly become complicated for everyone, including the employee, human resources leaders, and well-intentioned supervisors. Such scenarios often trigger obligations under the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), workers’ compensation statutes, and other state laws. In fact, distinct legal duties may arise under all of these laws at the same time. Depending on the circumstances, the Pregnancy Discrimination Act (PDA) could also bubble up in this statutory alphabet soup.
For employers, flu season is a great time for a checkup – not with your doctor, but with your policies and procedures related to employee sick leave. Below are some common questions employers may have about how to handle employee sick leave during this flu season.
What are the benefits and risks of letting employees work from home while sick?
Situations vary, so employers should be mindful of whether the employee even has the ability to do meaningful work while under the weather. If an employee is in a position that allows for telecommuting, feels up to it, and the employer’s policies provide for the option, there may be benefits to allowing remote work, including:
- Keeping the office healthy and germ-free.
- Improving morale if employees feel like they can recuperate and work from home while not losing paid time off or increasing their own workload or the workloads of their colleagues.
- Keeping projects on track and meeting deadlines.
On the other hand, potential downsides may include:
- A limited ability to monitor hours worked.
- The quality of work product may be affected by medication, symptoms, etc.
- The potential to open up potential arguments for unfair treatment if telecommuting assignments are not permitted for everyone.
An important thing to remember is that under the Fair Labor Standards Act, any employee who performs productive work must be compensated. If an exempt employee only performs one hour of work remotely, he or she must be paid for the entire day. Employers may deduct the non-working hours from a paid sick leave program, if applicable; however, pay may not be reduced, even if the employee does not have enough vested paid sick leave hours. Non-exempt employees need only be paid for actual hours worked and then the employer can count the unworked hours as paid sick time, if applicable, and adjust pay as necessary.
Given the menagerie of terms, it is easy to see why some business owners are quite confused about what to do when they are asked to permit an animal in their places of business. Part of the confusion comes from the multitude of federal laws on the topic (not to mention laws passed by some state and local governments). There is one for housing providers, another for those providing goods and services, yet another for airlines, and finally, one for employers. Another reason for the confusion is that these laws often use similar terms that have slightly different meanings.
In order to dispel the confusion under federal law, let’s examine a hypothetical scenario. Imagine that Acme Apartments, a business that leases apartments, has a no-pet rule for its tenants and an office policy prohibiting pets in the workplace. Acme also operates a fitness center for tenants and the general public with a no-animal policy. In this situation, Acme will need to follow the Fair Housing Act (FHA), Title I of the American Disabilities Act (ADA), and Title III of the ADA. How each of these laws apply to Acme—and your business—is described below.
An ever-present concern when building new structures is assuring compliance with the accessibility requirements of the American with Disabilities Act of 1990 (“ADA”), the Fair Housing Act (“FHA”), and Section 504 of the Rehabilitation Act of 1973 (“Section 504”). To address this concern, some property owners include provisions in their contracts with designers and contractors requiring them to certify the properties comply with all applicable federal building codes, including these statutes, or to cure any defects resulting from failure to comply. Thus, should an issue arise in the future regarding these statutes, the property owner could then theoretically recoup any resulting losses from those originally responsible for the design or construction of the property. But, the prevailing view among courts is that a party may not seek indemnity or otherwise seek to delegate duties under these statutes to a third party. Even though there is some disagreement among courts as to whether contribution claims should be treated the same as indemnity claims, property owners should know that such contractual provisions likely offer little protection for any losses resulting from a failure to comply with the ADA, the FHA, or Section 504.
Critical Issues for Employers in the Hiring Process: I-9 Compliance, Disability Inclusion, and Interview Questions
Disability Inclusion and ADA Compliance in Hiring
Employers covered by the Americans with Disabilities Act as amended (“ADA”) are prohibited from discriminating against qualified individuals based on disability during all stages of employment, including during the application and hiring process. The ADA, among other things, requires employers to provide reasonable accommodations for the known disability of a qualified applicant or employee, barring undue hardship. This requirement implicates several practical issues.
For example, the ADA prohibits or restricts disability-related inquiries and medical exams during various stages of employment: pre-offer of employment, post-offer of employment, and during employment. Employers generally may not require applicants to disclose information about their disability or medical impairment prior to an offer of employment. However, an applicant will need to disclose certain information, pre-offer, to receive a disability accommodation if needed to complete an online application, participate in a job interview, or take an employment test. Different rules apply to disability and medical inquiries during the post-offer and employment stages, so employers should be aware of which inquiries they are making and when, and whether such inquiries are permissible. Additionally, certain employers with government contracts may also ask applicants to voluntarily disclose their disability status for affirmative action purposes under federal laws, such as Section 503 of the Rehabilitation Act.
Covered employers’ application and recruiting materials should also be accessible to individuals with disabilities. One way employers can ensure equal access is to provide recruitment and application information through means other than the Internet when an applicant with a disability cannot access information on the computer. Another option is to make online information accessible to people with disabilities by designing webpages that meet the needs of individuals with motor, sensory, and neurological impairments. Examples of accessible web design features include:
- Designing large graphics that mark hyperlinks so that people with tremors have more room to activate the links;
- Keeping screens organized and uncluttered for individuals who are easily distracted;
- Providing brief descriptions of short sounds for individuals with hearing impairments; and
- Removing refresh options so that screen readers for visually impaired applicants do not repeatedly restart while scrolling through a webpage.
In recent years, businesses have been targeted with lawsuits where job applicants have argued that websites are inaccessible to individuals with disabilities. Fortunately, there are numerous online resources available to assist employers with designing more accessible websites.
Q: Are employees who wish to disclose their condition to their employer protected by the Americans with Disabilities Act?
Hinshaw: “The Americans with Disabilities Act (ADA) says that discrimination of people with physical or mental disabilities is illegal in our country in the workplace or in public. But does that mean if you are applying for a job that you tell the prospective employer with whom you are interviewing? Before you are employed, there is no guarantee that you are protected at that time if you are not an employee in that workplace yet. So, the disclosure of mental health in the workplace becomes a big issue.
If I am an employee, does that mean I carry a sign that says “I have depression”? Maybe I don’t want everyone to know that about myself before they’ve even been introduced to me. Disclosure is a matter of timing, rehearsal, and support. What we can’t have the default be in workplaces is where you are not allowed to talk about it. So maybe I’m strategic and I’m not disclosing my mental health condition during the job interview, but if I get the job and I’m realizing I need accommodations, then I should be able under the ADA to get reasonable accommodations.
Here’s the paradox of paradoxes. Until fairly recently under the ADA, the vast majority of claims were from people with physical disabilities and led to costs to employers like widening ramps, installing elevators, etc., yet very few people with mental health conditions were creating claims. Accommodations for mental health would be things like flex time, work from home days, more vacation days, etc. The cost to organizations by in large for accommodating mental health is relatively trivial compared to physical health, but the self-stigma is so great that people don’t want to be known as morally right, or have poor character because they “can’t cope like everyone else can.” These are some of the likely experiences those with mental health conditions in the workplace will face.”
The Americans with Disabilities Act was passed by Congress in 1990. Today, this civil rights law contains some areas of exception that come to many as a surprise.
According to its informational website, the ADA “guarantees equal opportunity for individuals with disabilities in public accommodations, employment, transportation, state and local government services, and telecommunications.”
Over the years, numerous organizations have been sued for not meeting all or some portion of ADA compliance guidelines. For instance, according to the law firm Seyfirth Shaw, which runs awebsite on ADA Title III litigation, the number of lawsuits filed in the U.S. has more than tripled between 2013 and 2018, from 2,722 to 10,163 respectively.
The Regulatory Review
Amusement parks are filled with disappointed children who do not meet the minimum height requirements necessary to ride rollercoasters. Unlike most children who can find comfort in knowing that one day they will be tall enough to ride, for the disabled, “no” typically means “never.”
In a recent paper, William Moorer, a law student at theUniversity of Mississippi School of Law, argues that even though manufacturer ride restrictions are legitimate safety requirements for the disabled, amusement park owners should find safe ways to increase rider accessibility.
The federal Americans with Disabilities Act (ADA) requires places of public accommodation to provide patrons with reasonable opportunities for the “equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.” The ADA’s “safe operation exception” permits owners to create restrictions that exclude disabled individuals as long as the restrictions are driven by legitimate safety requirements or the disabled individuals would pose a threat to the health or safety of others.
Scarlet and Black
Most students have probably visited the third floor of the Joe Rosenfield ’20 Center at least once in their time at Grinnell, whether they were picking up their room key, gaining permission to have a guest stay over or visiting one of the many resource offices housed on that floor. One of those offices is the Office of Accessibility and Disability Resources, which provides assistance to students with disabilities in many different facets of their lives at Grinnell.