Settlement Agreement: Flood's Bar
EEOC Statement on Joint Memorandum on Disability Self-Identification
The U.S. Equal Employment Opportunity Commission (EEOC) is pleased to announce the release of a joint memorandum with the U.S. Office of Personnel Management (OPM) to all federal Chief Human Capital Officers. The joint memorandum highlights revisions to OPM's SF-256 Self-Identification of Disability Form. The revised SF-256 was designed to assist federal agencies in increasing the employment of people with disabilities and particularly employees with targeted or severe disabilities. The revisions make it easier for employees with disabilities to self-identify during on-boarding or when their disability status changes during their career. The revisions also simplify the terminology within the form, better define the medical conditions listed, and allow employees to indicate they have a disability without having to specify their medical diagnosis.
"This memorandum is a result of the ongoing collaboration between the EEOC and OPM to make the federal government a model employer of people with disabilities," said Acting Chair Victoria A. Lipnic. "I want to thank Commissioner Chai Feldblum for her work on this effort and her longtime commitment to people with disabilities. The EEOC looks forward to continued collaboration with OPM and all federal agencies in this work."
The joint EEOC-OPM memorandum also provides additional resources to assist agencies. Of particular note is the Federal Exchange on Employment & Disability, an interagency group managed through the Department of Labor's Office of Disability Employment Policy (ODEP), and its contactor, the Employer Assistance and Resource Network on Disability Inclusion (EARN). ODEP is a key partner with the EEOC and OPM in the effort to increase opportunities for people with disabilities. For more information, please visit the ODEP and EARN websites.
California Employment Law Notes - November 2018
JD Supra
Injured Employee May Have Been "Regarded As" Disabled Under The ADA
Nunies v. HIE Holdings, Inc., 2018 WL 5660625 (9th Cir. 2018)
Herman Nunies was a delivery driver for HIE Holdings who injured his shoulder and wanted to transfer to a part-time, less-physical warehouse job. The requested transfer was approved and was set to go through until Nunies told HIE about his shoulder injury, after which the company allegedly rejected his transfer request and forced him to resign. Nunies sued for disability discrimination under the ADA and state law; the district court granted HIE's motion for summary judgment. The Ninth Circuit reversed the district court's judgment, holding that Nunies established that he may have been "regarded as" having a disability because he had an actual or perceived physical impairment whether or not the impairment limited or was perceived to limit a major life activity. The district court erroneously held that Nunies was required to prove that his employer subjectively believed that he was substantially limited in a major life activity (the superseded definition). The district court also erroneously dismissed Nunies' claim for disability discrimination based upon an actual disability because he did identify two major life activities (working and lifting) that were affected by his impairment.
Accommodating employee disability: Advice for employers from recent court cases
Business Management Daily
Employers must reasonably accommodate disabled workers so they can perform the essential functions of their jobs. But at what point does absenteeism make it impossible for the worker to perform the job?
In fact, regular attendance is an essential function of many jobs. Absenteeism so chronic that it’s clear the employee can’t be counted on to show up regularly may be good reason to terminate.
Simply put, you don’t have to accommodate excessive absences because doing so is unreasonable.
Recent case: Michael worked for the New York City Department of Parks and Recreation as a maintenance worker from April 2013 until January 2014. During that time, he missed 87 days of work. He claimed the reason was that he suffered from a bulging disk in his neck that caused severe migraine headaches that prevented him from getting out of bed in the morning to go to work. He was terminated.
Michael sued, alleging failure to accommodate his disability.
The city argued that it would have been a hardship to keep Michael employed if it had to accommodate his frequent absences. It told the court that the nature of Michael’s job required him on the premises to perform maintenance tasks. It called attendance an essential function of the job of maintenance worker.
The court agreed with the city. It said disabled workers may be entitled to time off for disability-related reasons, but that absences can’t be so frequent that they create an undue hardship. In this case, Michael had been absent 45% of the time. The court tossed out his lawsuit. (Lazzari v. New York City Department of Parks and Recreation, 2nd Cir., 2018)
Advice: Be sure your job description lists attendance as an essential function.
No Adverse Employment Action, No Failure-To-Accommodate Claim, Tenth Circuit Rules
JD Supra
The Americans with Disabilities Act (“ADA”) includes within its definition of “discriminate,” an employer’s failure to provide a reasonable accommodation to a qualified individual with a disability. But, is a failure to accommodate standing alone—absent an adverse employment action—enough to establish an ADA failure-to-accommodate claim? For example, if an employer fails to accommodate a wheelchair-bound employee by refusing to move her office a few feet closer to the entrance, has the employer violated the ADA? In this scenario, assuming the facts show that traveling the extra distance is just a mere inconvenience, the answer likely depends on whether an adverse employment action is a required element of a failure-to-accommodate claim.
Some courts, such as the Seventh Circuit, have stated that an adverse employment action is not a required element of a failure-to-accommodate claim. EEOC v. AutoZone, Inc., 630 F.3d 635 (7th Cir. 2010). Recently, however, in Exby-Stolley v. Bd. of County Commissioners, Case No. 16-1412 (Oct. 11, 2018), the Tenth Circuit disagreed and held that an adverse employment action is a necessary component of all discrimination claims under the ADA, including those based on a failure to accommodate.
In Exby-Stolley, the plaintiff, a health inspector, broke her arm, which limited her ability to conduct inspections and perform other job functions. As a result, she was temporarily given a part-time office job with the same pay (when worker’s compensation benefits were included). When she asked the County to create a new position for her, it denied her request but, according to testimony it presented, the County did not fire her or make any other changes to her employment status. County employees testified that they were planning to continue to look for ways to accommodate the plaintiff, but she resigned before other accommodations could be explored. The plaintiff filed an ADA claim for failure to accommodate, and the County argued to the jury that the plaintiff could not establish an ADA discrimination claim because she did not suffer an adverse employment action. The trial court instructed the jury that the plaintiff had to prove she suffered an adverse employment action to prevail on her failure-to-accommodate claim. The jury returned a verdict for the County after finding the plaintiff did not prove that she suffered an adverse employment action.
On appeal, the Tenth Circuit rejected the plaintiff’s argument that the jury instructions were erroneous and definitively held that an adverse employment action is a component of all ADA discrimination claims—even claims for failure to accommodate. The Tenth Circuit focused on the language of §§ 12112(a)-(b) of the ADA and held that those subsections read together require an adverse employment action to establish any type of ADA discrimination claim.
This holding that an adverse employment action is a required element of failure-to-accommodate claims means plaintiffs litigating in the Tenth Circuit, and potentially elsewhere, have one more hurdle to clear when asserting such claims. However, employers should be mindful of the fact that most courts, including the Tenth Circuit, liberally construe the phrase “adverse employment action,” and whether conduct rises to the level of an adverse employment action is often a fact-intensive inquiry.
100 Percent Healed Policies – One of the EEOC's Enforcement Priorities
JD Supra
The U.S. Equal Employment Opportunity Commission (“EEOC”) is cracking down on employers for maintaining leave policies that the EEOC deems a violation of the Americans with Disabilities Act (“ADA”). These so-called “100 percent healed” policies require an employee returning from medical leave to be fully recovered and to work without any restrictions. According to the EEOC’s 2016 guidance on 100 percent healed policies, an employer will violate the ADA “if it requires an employee with a disability to have no medical restrictions…if the employee can perform her job with or without reasonable accommodation unless the employer can show providing the needed accommodations would cause an undue hardship.” The complete guidance can be found here.
In September, the EEOC filed suit against a national company in the District of Arizona, claiming that the company violated the ADA by discriminating against employees with disabilities through the application of its 100 percent healed policy, among other alleged unlawful practices. According to the EEOC’s complaint, the company refused to engage in the interactive process with employees with disabilities who had exhausted their leave under the company’s 30-day medical leave policy or the Family and Medical Leave Act (“FMLA”). For example, the company allegedly would not approve modified job duties upon an employee’s return from leave, allow more than 12 weeks of leave permitted by the FMLA, allow extended leave past the 30-day medical leave, or allow employees to return to work without being fully healed. The complaint further alleged that employees who required work restrictions upon their return to work, or who did not return at the end of their approved FMLA and/or 30-day medical leave due to medical complications, were either terminated or considered to have voluntarily resigned. The company has not yet filed an answer or otherwise responded to the EEOC’s complaint. The complaint can be found here.
This isn’t the first major lawsuit filed by the EEOC against a national company in regards to these particular policies. A similar case made its way to the District Court for the District of Nevada against a Nevada company on May 24, 2018. The EEOC’s complaint alleged that the defendant company had maintained a well-established 100 percent healed practice which was, according to the complaint, “an unlawful qualification standard that does not allow for reasonable accommodation of qualified individuals with disabilities…” The EEOC also claimed that the defendant company failed to engage in the interactive process and provide reasonable accommodations to employees with a record of disability and/or actual disability and discharged and/or constructively discharged employees the company regarded as disabled and/or had a record of disability and/or actual disability. The case settled by consent decree within one month after its commencement, with the company agreeing to pay $3.5 million, retain an ADA consultant to revise the company’s disability policies, implement ADA training for its employees, develop an accommodation log to document requests for accommodations, establish a record-keeping procedure for the centralized tracking of reasonable accommodation requests and disability discrimination complaints, and to submit regular annual reports to the EEOC verifying the company’s compliance with the consent decree throughout the term of the decree.
And, in yet a third case – but one which did not reach the litigation stage – the EEOC entered into a settlement agreement with another national company to resolve nine charges of discrimination filed against the company. The charges alleged that the company failed to accommodate employees with disabilities, in violation of the ADA, because it maintained a 100 percent healed policy. As part of the settlement, the company will provide $2.25 million to compensate the nine individuals who filed charges, and provide annual financial support to nonprofit companies which help individuals with disabilities find and keep employment. In addition, the company will revamp its policies to better accommodate employees returning to work after disability-related leave and establish an accommodation and leave management team to further assist its employees.
All of the above is a reminder that employers may want to consider kicking 100 percent healed policies to the curb, and instead, engage in the interactive process with an employee who returns to work from a leave of absence with restrictions to determine possible reasonable accommodations that will allow the employee to perform the essential functions of the job. Those reasonable accommodations may include modified work schedules and duties, and yes, even an extension of an employee’s exhausted leave under the FMLA and the employer’s own medical leave policies.See Audrey Chastain, 1 Reminder: Leave Can Be an ADA Reasonable Accommodation – Due in: Now (2018), linked here. In addition, employers may want to have ADA-compliant policies in place, effective employee training, and document the interactive process to ensure an accommodating workplace environment, because 100 percent healed policies may lead to 100 percent liability.
EEOC Issues Reminder on Pregnancy Discrimination Laws
FEDweek
Pregnancy discrimination involves treating a woman (an applicant or employee) unfavorably because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth.
Pregnancy Discrimination & Work Situations
The Pregnancy Discrimination Act (PDA) forbids discrimination based on pregnancy when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, such as leave and health insurance, and any other term or condition of employment.
Pregnancy Discrimination & Temporary Disability
If a woman is temporarily unable to perform her job due to a medical condition related to pregnancy or childbirth, the employer or other covered entity must treat her in the same way as it treats any other temporarily disabled employee. For example, the employer may have to provide light duty, alternative assignments, disability leave, or unpaid leave to pregnant employees if it does so for other temporarily disabled employees.
Additionally, impairments resulting from pregnancy (for example, gestational diabetes or preeclampsia, a condition characterized by pregnancy-induced hypertension and protein in the urine) may be disabilities under the Americans with Disabilities Act (ADA). An employer may have to provide a reasonable accommodation (such as leave or modifications that enable an employee to perform her job) for a disability related to pregnancy, absent undue hardship (significant difficulty or expense). The ADA Amendments Act of 2008 makes it much easier to show that a medical condition is a covered disability. For more information about the ADA, see http://www.eeoc.gov/laws/types/disability.cfm. For information about the ADA Amendments Act, see http://www.eeoc.gov/laws/types/disability_regulations.cfm.
Pregnancy Discrimination & Harassment
It is unlawful to harass a woman because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth. Harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). The harasser can be the victim’s supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.
Pregnancy, Maternity & Parental Leave
Under the PDA, an employer that allows temporarily disabled employees to take disability leave or leave without pay, must allow an employee who is temporarily disabled due to pregnancy to do the same.
An employer may not single out pregnancy-related conditions for special procedures to determine an employee’s ability to work. However, if an employer requires its employees to submit a doctor’s statement concerning their ability to work before granting leave or paying sick benefits, the employer may require employees affected by pregnancy-related conditions to submit such statements.
Further, under the Family and Medical Leave Act (FMLA) of 1993, a new parent (including foster and adoptive parents) may be eligible for 12 weeks of leave (unpaid or paid if the employee has earned or accrued it) that may be used for care of the new child. To be eligible, the employee must have worked for the employer for 12 months prior to taking the leave and the employer must have a specified number of employees. Seehttp://www.dol.gov/whd/regs/compliance/whdfs28.htm.
Pregnancy & Workplace Laws
Pregnant employees may have additional rights under the Family and Medical Leave Act (FMLA), which is enforced by the U.S. Department of Labor. Nursing mothers may also have the right to express milk in the workplace under a provision of the Fair Labor Standards Act enforced by the U.S. Department of Labor’s Wage and Hour Division. Seehttp://www.dol.gov/whd/regs/compliance/whdfs73.htm.
For more information about the Family Medical Leave Act or break time for nursing mothers, go tohttp://www.dol.gov/whd, or call 202-693-0051 or 1-866-487-9243 (voice), 202-693-7755 (TTY).