Category Archives: Americans with Disabilities Act

Opioids in the Workplace

Contributed by Michael Wong, November 3, 2017

One of the first questions I ask when providing drug and alcohol training to managers, supervisors and employees is “What is the most commonly used illegal drug?” Typically, the response that I get will be alcohol (albeit not illegal) or marijuana. What most do not realize until the training is that prescription drugs, in particular opioids, are the most commonly abused illegal drug. Prescription opioids include hydrocodone, oxycodone, morphine, codeine and fentanyl, while illegal opioids include heroin.

J0337282Opioid use in the United States has started to take on a whole new form and is now commonly referred to as the opioid epidemic. Illinois has not escaped the opioid epidemic; in 2016 there were 2,278 drug overdose deaths of which over 80% (1,826) were opioid related. The number of opioid related deaths in 2016 was an increase of over 30% of the opioid related deaths in 2015 and an increase of over 70% of the number of opioid related deaths in 2013.

In looking at these numbers, it is important to understand that these are only the deaths – not the actual number of individuals using or abusing opioids. In a recent study by the National Safety Counsel, over one in three Illinois residents (35%) reported being impacted by opioid/heroin use by knowing someone (self, family/friend, co-worker/co-workers’ family, or neighbor/neighbor’s family) that started using opioids/heroin, became addicted to opioid/heroin, survived an opioid/heroin overdose or had died from an opioid/heroin overdose. Indeed, one issue with the opioid epidemic is that the gateway to opioid use does not always come from illegal activities, but can start out with a legitimate legal prescription. When there is a valid use for a prescription drug, an individual can feel like they are not doing anything wrong and their use can quickly turn into a slippery slope of addiction, activities that negatively impacts their work performance and potentially illegal activities. As a result of this, the opioid epidemic does not discriminate and can be found across all demographics, industries and positions.

One of the concerns with opioids for employers is that it is more difficult to tell if someone is under the influence or using opioids or heroin than other more traditional drugs. For instance, opioids and heroin do not come with symptoms or indicators that are easy to perceive like with alcohol – a smell, shaking hands and movements, and behavior changes; or with marijuana – a smell, red eyes, delayed reaction time, anxiety, and lack of coordination. With opioids, it is often difficult for employers to make the connection between an employee appearing groggy, sleepy or forgetful in the workplace to being linked to drug use. Indeed, what employers will typically see, if anything at all, is a gradual decline in an employee’s attendance and performance, until the employee loses their job or stops coming to work altogether.

The traditional tool of employers to identify and prevent drug and alcohol use within the workplace is drug testing. Pre-hire drug testing can be effective in preventing illegal opioid users from joining the workforce. However, drug testing is not always effective where the opioid user has a legal prescription or where the individual is not yet an opioid user. Reasonable suspicion drug testing can also be effective, but first requires reasonable suspicion of opioid use which can be difficult to identify.

So what does this leave? First and foremost, employers should re-evaluate their drug policies and testing procedures and understand the potential legal implications. For example, drug testing can be modified to test for legal prescription medications, but in order to avoid a violation of the ADA the applicant or employee must be able to provide an explanation for the positive drug test, such as a prescribed medication. Additionally, employers must realize that even if the employee is using prescription medication, there may be an underlying medical condition that they need to be aware of to avoid any kind of disability discrimination claim.

Next, employers should consider questioning its health care benefit carrier and workers’ compensation carrier on what actions they are taking to address the opioid epidemic and collaborating with them on any specialized programs or options for addressing. This can include learning about whether the carrier has programs for the conservative use and risk of prescription opioids, an opioid management program and/or a prescription benefit management program, which can help in preventing prescription medication abuse and identify the abuse of prescription medications. In doing so, employers should also consider investing in an employee assistance program (EAP), which can help employees avoid or address addiction.

Another investment that can pay dividends is management and employee education. Better training and education for not only management, but also employees regarding the impacts of opioids, how to identify opioid use and how to address opioid abuse. Management training can help make management more aware of how to identify potential issues before they occur and get employees help before it escalates to more serious problems. This includes not only taking into consideration the symptoms of opioid and other drug use, but also recognizing changes in how employees are acting, their performance, their attendance, any recent injuries they have had and any other issues that could indicate drug abuse. Employee training can help employees understand the danger of opioids, how the use of legal use of prescription opioids can lead to addiction, and what steps can be taken to seek assistance. Of course, any training should be tailored to include information regarding the Company’s policies, drug testing, benefit programs and reassurances regarding the Company’s commitment to providing confidential and accessible help and treatment.

Finally, one thing to remember is that despite the high numbers of deaths in 2016 in Illinois, Illinois is still behind many states in its exposure to the opioid epidemic. Indeed, in some places manufacturing employers have found using pre-hiring drug testing was not effective. The reason for this is it significantly increased the number of applicants they have had to go through in order to hire for a position or was making it near impossible to fill their staffing needs due to applicants not returning after learning there was drug testing or applicants consistently failing the drug test.

 

Seventh Circuit Holds that Multiple-Month Extended Leaves Are Not Reasonable Accommodations Under the ADA

Contributed by Allison P. Sues, September 27, 2017

Because not all recoveries from medical conditions come in neat twelve-week packages, employers commonly need to address employees’ requests for additional leave after they have exhausted all leave afforded under the Family Medical Leave Act (“FMLA”) or company policy.

Clock and StethoscopeThe U.S. Equal Employment Opportunity Commission has long taken the position that terminating an employee who has exhausted FMLA leave, but is still not able to return to work, may violate the Americans with Disabilities Act (“ADA”). For instance, the EEOC guidance, issued on May 9, 2016, opined that providing additional leave may be necessary as a reasonable accommodation.

The Seventh Circuit Court of Appeals recently issued a decision running contrary to this EEOC guidance and the prevailing precedent in other circuits, holding in Severson v. Heartland Woodcraft, Inc., that an employee is not entitled to extended leave as a reasonable accommodation under the ADA.

In this case, employee Severson took a twelve-week medical leave from work under the FMLA to deal with serious back pain (the statutory maximum). Shortly before this leave expired, Severson notified his employer that he was scheduled to undergo back surgery, and requested an additional two to three months of leave to recover from surgery. The company denied Severson’s request to continue his medical leave beyond the FMLA entitlement, terminated his employment, and invited him to reapply when he was medically cleared to work.  Instead, Severson sued, alleging a failure to reasonably accommodate his disability—namely, a three-month leave of absence after his FMLA leave expired.

The Seventh Circuit affirmed the district court and clarified that a medical leave spanning multiple months is beyond the scope of a reasonable accommodation. Finding that the employer did not violate the ADA by refusing to provide the additional leave, the Seventh Circuit explicitly stated that an employee, who cannot not work or perform their job’s essential functions, is not a “qualified individual” under the ADA.  Further highlighting its position, the Court distinguished between the FMLA, which it held was intended to provide long-term medical leave for those who cannot work, while the ADA is meant to require accommodation only for those “that can do the job.”

Before employers in Illinois, Wisconsin and Indiana reinstate strict Maximum Leave Policies and No-Fault Termination policies, whereby employees are automatically terminated if they cannot return to work when FMLA or other awarded leave is exhausted, several limitations to Severson should be noted.

Severson’s holding is limited to “medical leave[s] spanning multiple months.” The Court acknowledged that finite extensions of leave for shorter durations – described as “a couple of days or even a couple of weeks”, but less than multiple months – may still be deemed a reasonable accommodation.

The Court further acknowledged that intermittent leaves of short duration may constitute reasonable accommodations in the same way a part-time or modified work schedule may be a reasonable accommodation for employees dealing with medical flare-ups. Moreover, employers should be cautious about maintaining 100% Healed Policies, whereby an employer requires employees to have no medical restrictions whatsoever when their leave ends.

At any time employees have exhausted their leave, but are not fully cleared to return to work, the employer should engage in the ADA’s interactive process and consider the following before deciding to terminate employment:

  • Whether the employee’s current medical restrictions affect the employee’s ability to perform the essential functions of the position;
  • If the restrictions do impact the employee’s ability to perform the essential functions, are reasonable accommodations available that would enable the employee to perform these functions;
  • Whether vacant positions exist that the employee would be qualified to perform and could be reassigned into;
  • Whether the employer has a policy of creating light-duty positions for employees who are occupationally injured and whether this benefit could be extended to the employee without posing an undue hardship; and
  • Whether the employee’s request for additional leave is definite in time and of a short duration, and if this extended leave could be provided without posing an undue hardship.

 

Responding to Violence in the Workplace – A “Catch 22” for Employers

Contributed by Michael Wong, August 10, 2017

Workplace investigation

The recent instances of violence in the workplace remind us of the complex task facing employers. Employers must maintain a safe work environment for employees while operating within the parameters of the many federal and state laws that may protect certain employee conduct. More importantly, because an employer has no objective “litmus test” for predicting which employee may become violent under particular triggering circumstances, there is no foolproof way to effectively eliminate the hazard.

Employers today can find themselves in a seemingly untenable dilemma when they have violence threaten to invade their workplace, as disciplining or terminating the problem employee can result in a legal claim as well.

In Mayo v. PCC Structurals, Inc., 795 F.3d 941, 942 (9th Cir. 2015), the employer, PCC, terminated the plaintiff, Thomas Mayo, after he made threatening comments to three co-workers that he was going to bring a gun to work and start “shooting people.” After the threats were reported, the employer took the proper precautions by immediately suspending the plaintiff, barring him from company property, and notifying the police. The police took him to the hospital for medical treatment on the basis that he was an imminent threat to himself and others.

After taking three months of leave under the FMLA and Oregon’s equivalent state law, a treating psychologist cleared Mayo to return to work, but recommended a new supervisor assignment. Instead, the employer terminated Mayo. Plaintiff then sued PCC alleging he was terminated because of his disability in violation of the Americans with Disabilities Act (ADA) and state law.

In Mayo v. PCC, the United States Court of Appeals for the Ninth Circuit held that an employee who made serious and credible threats of violence against coworkers is not a qualified individual with a disability under the ADA or Oregon’s disability discriminatory law. In granting summary judgment to the employer, the Court held that an essential function of almost every job is the ability to appropriately handle stress and interact with others, and that an individual is not qualified and cannot perform the essential functions of the job if he or she threatens to kill co-workers – regardless of whether such threats stem from a mental condition or disability.

What should employers do?

Against this potential liability minefield, an employer should develop an effective written workplace violence preventative policy. For those who already have policies in place, it would be a good idea to review your policies and practices with your legal counsel to make sure that these issues and any potential concerns are properly addressed.

Ask yourself the following questions to see if your policy needs to be modified in light of the recent lawsuits:

  1. Do your policies advise employees that they will be subject to discipline (up to and including termination) if they “fail to foster collegiality, harmony, positive attitude, and good relations in the workplace?”
  2. Do you have a statement that there is “zero tolerance” regarding threats or acts of violence?
  3. Do your managers/supervisors know what steps should be taken if there is a threat, complaint of bullying or violence?
  4. Have your managers, supervisors and employees been trained on identifying signs and symptoms of behavior which may predict potential violence (erratic behavior; comments regarding violence, homicide or suicide; provocative communications; disobedience of policies and procedures; presence of alcohol, drugs or weapons on the worksite; evidence of violent tendencies or abuse of alcohol or drug use)?
  5. Have your managers and supervisors been trained and regularly reminded about the importance of good documentation and dangers of bad documentation?

An Employer’s Guide on Service Animals and the ADA

Contributed by Amanda Biondolino, July 17, 2017

Under the Americans with Disabilities Act (ADA) it is unlawful for an employer to discriminate against a qualified individual on the basis of disability, and this includes not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual. A qualified individual is a person with a disability who can perform the essential functions on the job with or without a reasonable accommodation. A reasonable accommodation includes making existing facilities used by employees readily accessible to individuals with disabilities. If an employee with a disability can perform the essential functions of the job utilizing a reasonable accommodation, they fall within the protections of the ADA.

guide dog silhouettes

Silhouettes of a blind man with his guide dog

There are no bright-line limitations on what is reasonable or what is not. What if your employee asks to bring a service animal to the worksite?  Must an employer allow dogs or other animals on the premises alongside their employees if an employee claims the animal is needed to assist them in maintaining their employment? Perhaps. Although uncommon, requests for service animals have been litigated, and the courts often allow the issue to proceed through a jury trial, a very expensive process for any employer. Examples include a paraplegic physician utilizing her dog to pull her wheel chair, open and close doors, and retrieve items, and a mechanic with PTSD utilizing a service dog around the shop.

It is important to remember that Title I of the ADA governs employment, while Title II and Title III of the ADA govern places of public accommodation. A reasonable accommodation under Title I is not necessarily limited to a service animal as defined for Titles II & III. If an employee with a disability requests a reasonable accommodation to assist in the performance of his or her job, an employer should engage in a good faith interactive dialogue with the employee about his or her request. Failure to do so is a violation of the ADA. The employer should analyze the job purpose and essential functions, and consult with the employee to ascertain the precise job-related limitations caused by his or her disability and how those limitations would be overcome with a reasonable accommodation, such as the service animal or other alternatives. If the disability or need for the animal is non-obvious, an employer can request reliable documentation verifying the employee’s disability and the relationship of the animal to that disability.

Issues to consider include the nature of the worksite (i.e., office setting versus production facility), the relationship between the animal’s function and the employee’s disability, how well the service animal will improve the employee’s ability to perform his or her job, and the temperament and behavior of the animal. If an employee shows their request is reasonable, the employer is required to provide a reasonable accommodation unless the accommodation would impose an undue hardship on the operation of the business. It is important to keep an open mind and evaluate every request on a case-by-case basis. Although the employee’s preference should always be considered, an employer is not required to grant the specific request simply because it is the employee’s preference. The employer should implement the accommodation that is most appropriate for both the employee and the workplace.

For a refresher on the obligations of a business to accommodate its customers’ needs for services animals, read this article on service animals and the ADA.

Save the Date! Complimentary Webinar on May 11th: Are You Compliant with the ADA’s Current Guidelines?

Join Michael Wong on Thursday, May 11 at 12:00 PM CT for the latest installment of our Labor & Employment Quarterly Series as he discusses ADA compliance for businesses and in the workplace. Over the past few years the courts, EEOC and U.S. Department of Justice have broadened the scope of the Americans with Disabilities Act (ADA) to increase the expectations on business owners, HR professionals, and supervisors – including through the broad interpretation of what is a disability, what information puts supervisors and businesses on notice of an employee’s disability, and the requirement that private businesses have accessible websites.

What does this mean for HR professionals and business owners? Join Michael Wong as he covers:

  • The ADA Interactive Process and reasonable accommodations
  • ADA website compliance
  • How to limit exposure and liability

Click here to register for this webinar!

Website Accessibility

Contributed by Debra Mastrian, February 21, 2017

Website accessibility continues to be a hot topic. Hundreds of businesses throughout the country have been sued in the past few years for failing to have accessible websites.  Retail businesses have been the primary target; however, financial institutions and now, the healthcare industry, are receiving threatening letters from high profile law firms, alleging that the businesses’ websites are not “accessible” and in violation of the Americans with Disabilities Act (ADA). The law firms threaten to file suit if the businesses do not make their websites compliant with the Web Content Accessibility Guidelines Version 2.0 Levels A and AA (“WCAG 2.0 AA”), created by the World Wide Web Consortium, and demand a settlement, including payment of attorneys’ fees.

The ADA does not currently have an accessibility standard that private companies must comply with regarding websites. However, the federal agency charged with ADA enforcement – the United States Department of Justice (DOJ) – has stated its position that Title II and Title III of the ADA requires public and private entities that have websites to make their websites accessible to individuals with disabilities. Although no final regulation has been issued, and none is expected until 2018 at the earliest, the DOJ has initiated a number of enforcement actions against private companies and public entities.  In settling enforcement actions, the DOJ has generally required compliance with WCAG 2.0 AA. It remains to be seen if the enforcement actions will continue under President Trump’s administration, however, businesses must still take heed because of the threat of lawsuits by private law firms.

cloud-computer-tablet-phoneThere are steps businesses can take to reduce the risk of being sued or having liability, including:

  • Educate yourself and IT employees regarding WCAG 2.0 AA standard
  • Retain a website accessibility consultant/vendor to review your website using the WCAG 2.0 AA standards
  • Redesign and/or update your website to conform with WCAG 2.0 AA
  • Set up regular monitoring of your website for compliance with WCAG 2.0 AA and ensure that all new content is reviewed for accessibility before being added to the website
  • Adopt an internal website accessibility policy that includes a reporting mechanism for any complaints, issues or suggestions about accessibility to your website and online banking services
  • Distribute your website accessibility policy to technical support staff and vendors
  • Train employees on accessibility and current WCAG 2.0 AA standard
  • Put a statement on the homepage of your website (or a link to the statement) about your commitment to website accessibility, solicit feedback, and include contact information for reporting problems
  • Add alt-text, captions and other features that make your website more accessible  to individuals using screen reader or other assistive technology
  • Require vendors providing website, apps, online banking, advertising or other services, to make their products and services “accessible” in conformance with the ADA and WCAG 2.0 AA
  • Have a written agreement with vendors, who are providing website redesign, updates or monitoring, which includes compliance with WCAG 2.0 AA accessibility standards in the scope of the work being performed and request a rep and warranty regarding accessibility
  • Review indemnification provisions in vendor agreements to determine if the vendor agrees to indemnify you for claims resulting from the vendor’s negligence or failure to comply with WCAG 2.0 AA or ADA website accessibility standards

If you receive a demand letter, you should promptly report the demand letter to your insurance agent or applicable insurance companies. Employment practices liability (EPL) policies may provide coverage for website ADA claims brought by third parties. Media liability or cyber security policies may also apply, depending upon the policy coverage and exclusions.  Additionally, since the demand letter is a threat of litigation, you should implement a legal hold to preserve and protect all potentially relevant documents and information. Importantly, demand letters must be taken seriously. Failing to appropriately address may result in costly litigation. That being said, it is important to understand that settling with a private litigant does not insulate the business from litigation by the DOJ or other private litigants.

Website accessibility is an evolving area of law. Businesses should be aware of the issues and understand their potential exposure to threats of litigation.

Website Accessibility Lawsuits Under Title III of the ADA – Are you Exposed?

Contributed by Michael Wong, October 18, 2016

The Americans with Disabilities Act (ADA) not only provides employment protections and accommodation rights to qualified individuals with disabilities in the workplace, it also requires reasonable accommodations in “places of public accommodation.” Places of public accommodation include businesses that are open to the public and fall within one of 12 categories listed in the ADA, such as restaurants, movie theaters, schools, day care facilities, recreation facilities, and doctors’ offices. The ADA’s mandate extends to newly constructed or altered places of public accommodation including privately owned, nonresidential commercial facilities such as factories, warehouses, and office buildings.

17103126_sTraditionally, Title III has meant that businesses with brick and mortar locations had to remove physical barriers to provide equal access and opportunities to individuals with disabilities (i.e. installing wheelchair ramps or elevators, accessible restrooms, and handicap parking spaces). However, courts and the U.S. Department of Justice (DOJ) over the past few years have interpreted Title III to also require accessible public websites.

Even though the DOJ has not issued guidelines or standards for web accessibility for private businesses, it has been seeking to enforce Title III against private businesses. Moreover, over the past few years, more and more private litigants have been sending demand letters and filing lawsuits against businesses. Indeed, several have become “professional litigants” in this area, much like we have seen with the Fair Credit Reporting Act (FCRA). The number of cases filed alleging violations of Title III has more than doubled over the past few years.

While relief under Title III of the ADA is limited to injunctive relief (i.e. business is ordered to shut down website or make it accessible), successful litigants can recover their attorneys’ fees and costs. Additionally, some state laws provide for additional monetary damages. For example, in California the damages are up to three times the amount of actual damages, but not less than $4,000, plus attorneys’ fees and costs. It is noteworthy that California has taken some steps to address “high-frequency litigants” and exempted certain businesses from the full minimum $4,000 statutory damages. However, the potential exposure and liability for a Title III website accessibility claim is real.

What do businesses need to know and do?

First and foremost, check whether your websites are accessible. Though the DOJ has not issued formal regulations, it has recognized Version 2.0 of the Web Content Accessibility Guidelines (WCAG 2.0) published by the World Wide Web Consortium (W3C) as an appropriate standard. Next, promptly remediate any deficiencies identified in your websites. Note that sometimes it is more cost effective to create a new website than to make an old website accessible. Third, be on the lookout for further guidance. The DOJ has indicated its intent to issue a proposed rule regarding website accommodation. Finally, consult with qualified counsel on ways to limit exposure to potential accessibility lawsuits and how to respond to a demand letter or lawsuit alleging a violation of Title III.