Tag Archives: Americans with Disabilities Act

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.

 

EEOC Lawsuit Reminds Employers That Pre-Employment Health Inquiries Are Off-Limits

Contributed by Steven Jados, June 15, 2016

A recent consent judgment entered against Grisham Farm Products, in a lawsuit brought by the EEOC, Case No. 6:16-cv-03105 (W.D. Mo.) (June 8, 2016), provides an important reminder to employers that job application questions directed at medical histories are generally off-limits.

The case arose from an EEOC Charge filed by a man who did not even submit a job application. Instead, after seeing the application’s medical history questions, he headed to the EEOC and filed a Charge of Discrimination alleging violations of the Americans with Disabilities Act, as amended (“ADA”), and the Genetic Information Non-Discrimination Act of 2008 (“GINA”).

two insurance forms on a clipboard with a pen.

The job application included a three-page health history that asked 43 questions. The top page of the history stated: “All questions must be answered before we can process your application or change authorization”—potentially indicating that applications would be rejected for failure to provide a complete medical history. The history sought information on virtually any condition an applicant might have, from allergies to varicose veins. For each “yes” response an applicant gave, indicating a current or past medical diagnosis, the history sought additional information, including the dates symptoms presented, whether hospitalization was necessary, and the name and address of the applicant’s doctors and hospital.

It did not stop there. The history inquired about current medications, including dosage, the reasons for prescription, and the name and address of the prescribing doctor. The history concluded by asking applicants to disclose—again in complete detail—whether any surgery or medical testing had been recommended, and to provide recent blood sugar and blood pressure testing results.

Considering the ADA generally prohibits employers from conducting pre-offer medical examinations or inquiring into the existence or severity of an applicant’s disabilities, it was clear that this application violated the ADA. The fact that the man had not actually applied for a job was of no consequence. The ADA affords protection to persons who are deterred from applying for a job because of discriminatory practices or policies.

Additionally, because the health history required disclosure of consultations with “‘a doctor, chiropractor, therapist or other health care provider within the past 24 months’” and identification of “whether ‘future . . . diagnostic testing . . . has been recommended or discussed’ with [a] medical provider,” the application violated GINA by soliciting information that might reveal an applicant’s family history or other risk factors for certain medical conditions.

The consent judgment included a permanent prohibition from requiring any pre-offer medical examinations or pre-offer medical inquiries and a payment of $10,000.

This case serves as a reminder that an employer may not ask a job applicant medical questions before making a job offer. An employer may ask a job applicant if they can perform the essential functions of the job. The essential job functions should be listed in a job description that is provided or made available to the applicant.

Universally Applied Seniority-Based Bidding System Trumps ADA Accommodation Says Seventh Circuit – Though Dissenter Disagrees

Contributed by Suzanne Newcomb

On December 3, the Federal Court of Appeals for the Seventh Circuit (Illinois, Indiana and Wisconsin) affirmed dismissal of a failure to accommodate claim brought by an employee bumped from a job assignment that accommodated his disability after his employer opened that assignment to seniority-based bidding pursuant to the terms of the collective bargaining agreement (CBA).

After a series of injuries and several extended leaves of absence, the employee was released to return to work with permanent restrictions that prevented him from performing many of the physically demanding essential functions of his position. The employer accommodated his restrictions by placing him into the fairly sedentary “Matrix position.” The CBA allowed employees to bid on their desired work assignments and required the employer place them in their selections according to seniority. The Matrix assignment, however, was reserved for employees with permanent restrictions and was not subject to seniority-based bidding.

The employee had held the Matrix position for years when the employer decided the position should be included in the seniority-based competitive bidding scheme. The employee did not have enough seniority to hold the position. He inquired about several no-bid positions, but none were available at the time. Ultimately he was placed on extended leave and sued.

Office PeopleThe employee claimed his employer failed to accommodate his disability by refusing to allow him to remain in the Matrix position and by failing to place him in a no-bid position. Relying on U.S. Supreme Court precedent, the Court held that the employer was not required to violate a uniformly enforced seniority system in order to accommodate an employee’s disability. The employee’s argument with respect to the no-bid positions failed because he could not show a vacancy existed at the relevant time, reaffirming that the Americans with Disabilities Act (ADA) does not require an employer to create a vacancy or “bump” other employers in order to provide an accommodation.

Notably, however, a dissent was filed. The dissenting judge pointed out that the prior precedent on which the majority relied, specifically allowed that “special circumstances” can warrant a finding that the requested accommodation is reasonable under the particular facts despite the existence of a seniority system. He concluded that evidence that the employer excluded the Matrix position from the seniority system for years could warrant such a finding. Whether the employee will ask the United States Supreme Court to review the decision remains to be seen.

Bottom line: Although this decision is a win for the employer and welcomed guidance for employers who regularly find themselves balancing individual employee’s ADA rights and its obligations under a CBA, the dissent highlights the fact that, as with all things ADA, there are no clear answers. Careful analysis of all accommodation options and a review of available positions must be conducted on a case by case basis.

Are You Prepared for Medical Cannabis?

Contributed by Noah A. Frank

Medical marijuana (MMJ) is now permitted in 23 states and Washington D.C. Out of those 23 states four of them permit recreational use. Though it remains illegal on the Federal level, the U.S. Department of Justice recently announced the release of over 6,000 inmates convicted of nonviolent drug charges. This begs the question – are you prepared for medical cannabis in the workplace?

Nondiscrimination Policies

Most states with MMJ prohibit discrimination on the basis of a worker or applicant being a registered patient. However, employers should also carefully consider that a registered patient’s underlying medical condition is likely a disability under the Americans with Disabilities Act. As a result, employers that discriminate against (or refuse to provide reasonable accommodations for) a MMJ user could face unanticipated exposure under the ADA and other equal employment opportunity laws. Therefore, employers may regulate use and impairment in the workplace, but not discriminate against the underlying condition or status as a registered patient.

19261587_sSignificantly, employers will also have to carefully scrutinize their background check process to ensure compliance with the Fair Credit Reporting Act, EEOC guidance, and “Ban the Box” laws to avoid any unintentional discrimination. This is especially true with the impending release of inmates with actual conviction histories. In general, a background check policy should be tailored to the position(s) being applied for, and employers should have a bona fide basis for disqualifying those with a criminal history (i.e., a nurse with access to controlled substances versus a groundskeeper). If there is no bona fide reason for excluding those with certain types of crimes, then do not do so.

Drug (In)Tolerance & Testing

Employers need to determine what they will and will not tolerate. Zero tolerance policies and discipline for impaired work (especially resulting in injury or damage) are permitted. Use by a non-registered user is not protected conduct (the same as using another’s codeine).

Take a close look at drug testing policies to ensure that they are based on reasonable suspicion: lack of agility, dexterity, and coordination could be the result of impairment from MMJ or other intoxicating substances, or could be the physical manifestation of the underlying protected disability. A good faith basis for considering discipline and providing the employee with the opportunity to explain will help mitigate risk of a discrimination claim.

How to Prepare for MMJ

Employers should take proactive steps today to ensure compliance with the various laws now to avoid bigger problems later. This includes:

  • Reviewing the company’s philosophy towards medical marijuana and other controlled substances in the workplace, and ensuring that managers and supervisors are training in the company’s policies.
  • Determining which positions are safety-sensitive, and updating job descriptions accordingly (side note: with impending updates to the DOL’s FLSA regulations, it is not a bad time to consider which positions are non/exempt).
  • Updating handbooks and manuals to reflect drug testing, workplace search, disability, and other related policies.
  • Engaging employment counsel to audit policies and practices to ensure compliance prior to there being an incident.

The Risks of Email Communications

Contributed by Carlos Arévalo

Martin Lomasney, an early 20th Century Boston politician, once said “never write if you can speak, never speak if you can nod, never nod if you can wink.” Just last week, the United States Court of Appeals for the Seventh Circuit issued a decision illustrating the dangers of email communications and gave new life to a plaintiff’s claims that the reasons for her termination were the result of discrimination on the basis of her military service and disability.

In 2012, LuzMaria Arroyo, a United States Army Reservist and Veteran, sued her former employer Volvo Group of North America, LLC in federal court for discrimination, retaliation, and failure to provide reasonable accommodations in violation of the Uniform Services Employment and Reemployment Act (“USERRA”) and the Americans with Disabilities Act (“ADA”). In granting summary judgment, the district court found that Arroyo failed to show that her military service was a motivating factor for her termination. To meet the “motivating factor” standard, a direct admission from the employer is not required. Rather, a plaintiff can rely on circumstantial evidence that creates a “convincing mosaic” from which a reasonable jury could infer a discriminatory motive.

17103126_sIn its decision, the Seventh Circuit highlighted emails between members of management where they often complained about the burden placed on Volvo by Arroyo’s frequent use of military leave for training and/or deployments. One email made reference to “the undue hardship [Arroyo’s military leaves] were causing to [Volvo’s] operation.” Other emails questioned the need to extend Arroyo travel time plus the additional eight hour rest period before reporting to work following her military leave. Yet another contained an exchange between supervisors discussing disciplining, suspending or possibly firing Arroyo for her absences, but noting that Volvo likely had no recourse due to Arroyo’s military service. An email recommended that Arroyo be offered a severance package upon her return from deployment, which Arroyo rejected.  When Arroyo later requested accommodations related to her diagnosis of PTSD after her second Iraq tour, a supervisor reported in an email that “[Arroyo was] really becoming a pain with all this.” Her accommodation request was followed by progressive disciplinary steps, which standing alone were minor in nature, but cumulatively led to her termination. Ultimately, the Seventh Circuit noted that a jury could reasonably conclude that Volvo was looking for reasons to discharge Arroyo based on absences from work due to her military service, reversed summary judgment and sent the case back to the district court for trial.

So what can be learned from this decision?  At least one thing is certain:  members of management should heed Lomasney’s advice and not trade emails criticizing employees’ rights pursuant to USERRA, ADA or any other statutory provision.  While Volvo might still succeed at trial – even the Court acknowledged that Volvo granted Arroyo a considerable amount of military leave and did not directly discipline her for those absences – those critical comments will still have an impact and potentially undermine Volvo’s arguments that Arroyo’s military service was not a motivating factor in her termination.

Employers Do Not Have to Allow Unacceptable Workplace Behavior Due to a Disability

Contributed by Michael Wong

The Americans with Disabilities Act (ADA, ADAAA) and Rehabilitation Act, which incorporates most of the ADA standards, prohibit discriminating against employees based on their disabilities.  Indeed, with the ADAAA amendment, recent court decisions have broadened the scope of what is considered a disability, as well as what steps an employer must take in order to comply with the law.

In doing so, employers may feel that their hands are tied behind their back in dealing with employees who perform poorly and/or act out at work.  However, just because an employee is disabled does not mean that they should be given carte blanche freedom in what they say and do in the workplace. Recently, the Eastern District of Wisconsin dismissed a former Wisconsin Department of Transportation employee’s claims under the Rehabilitation Act (which incorporates most of the ADA standards) and Family Medical Leave Act, finding that the employee’s conduct was unacceptable.  In doing so the court followed the Seventh Circuit case, Brumfield v. City of Chicago, 735 F.3d 619 (7th Cir. 2013) and held that an employer may terminate an employee for engaging in unacceptable workplace behavior without violating the ADA (or Rehabilitation Act), even if the behavior was precipitated by a mental illness.

Specifically, the court held that the employee’s hysterical screaming and suicidal behavior in front of co-workers and members of the public was simply not behavior that an employer generally has to tolerate or accommodate. Indeed, the court recognized that absent a disability, an employer would otherwise be entirely justified in immediately terminating an employee who engaged in such behavior.

While this may be an extreme example, employers should understand that their hands are not tied when it comes to dealing with employees who blame their poor performance or unacceptable workplace behavior on a disability. However, since this is a sensitive subject that can very easily lead to a discrimination claim, employers should make sure to understand the current case law and consult with legal counsel before taking disciplinary steps that may include termination.

 

EEOC Publishes Proposed Rules for Employer Wellness Programs

Contributed by Suzanne Newcomb

The EEOC officially published proposed rules applying the Americans with Disabilities Act (ADA) to employer wellness programs on April 20, 2015. The public comment period ends June 19, 2015.

Wellness programs, often offered as part of group health plans, are programs designed to improve employee health and reduce health care expense.  Wellness programs vary widely and may include incentives encouraging employees to participate in smoking cessation or weight loss programs, or undergo health risk assessments or biometric screenings.

Despite rules applicable to wellness programs issued under HIPAA and the ACA, the EEOC filed high profile lawsuits in recent years, arguing employer wellness plans amounted to disability-related inquiries or medical examinations, both of which are prohibited by the ADA.

The proposed rule, which can be found here, provides guidance and a measure of certainty for employers who have wellness programs in place or who wish to implement them.

The proposed rule permits employers to offer incentives to employees who participate in wellness programs or who achieve certain health outcomes as long as:

  • the program is truly voluntary (i.e. employees cannot be required to participate, denied coverage if they choose not to participate, or subjected to adverse employment actions for choosing not to participate or for failing to achieve certain goals or health outcomes);
  • the program is designed to promote heath or prevent disease and therefore must generally provide useful feedback to the employee or assist the employer in offering programs matched to the needs of its workforce;
  • any incentives offered (financial or in-kind) do not exceed thirty percent of the total cost (employee-paid plus employer-contributed) of employee-only insurance coverage (this is consistent with the maximum allowable incentives under HIPAA and the ACA);
  • the employer provides reasonable accommodation to allow employees with disabilities equal opportunity to participate in the programs and to earn incentives;
  • medical information is kept confidential and shared with the employer only in an aggregate form not reasonably likely to disclose information specific to any individual employee; and
  • the employee receives notice of what medical information will be obtained, who will receive the information, how the information will be used, the restrictions on disclosing the information, and the methods in place to prevent improper disclosure.

Although not yet final, the proposed rules provide much needed clarification and helpful guidance to employers and benefits professionals.