The HR Cafe

ADA: Medical leave as accommodation? EEOC thinks so

Dear HR Executive,

It seems entirely reasonable for an employer to terminate employees who exceed a certain amount of medical leave. After all, you can’t be expected to carry people who're unable to work on the payroll indefinitely.

But if the EEOC has its way, you might be violating the ADA if you did get rid of such employees.

‘Arbitrary, inflexible’

The federal employment law watchdog recently filed lawsuits against two employers that applied policies calling for the termination of employees after one year’s absence on medical leave.

The EEOC said “arbitrary deadlines” for returning to work after medical treatment unfairly keep disabled employees from working.

And just last month, another employer, Sears Roebuck, settled a similar suit against it for $6.2 million -- the biggest settlement ever of an ADA lawsuit by the EEOC. The Sears suit was about what the agency called an "inflexible" policy on the exhaustion of workers comp leave.

ADA revisionism

Maybe the EEOC is right on this point. Or maybe the EEOC is reinterpreting and unilaterally extending the scope of the ADA, which specifies that its protection extends only to employees who are able to fulfill their job duties with or without accommodation.

Are employees who can’t work due to long illness or effects of injury “able to fulfill their job duties”? It looks as if we’ll have to wait for the courts to say. We’ll keep you posted on these cases.

Meantime, you may want to check your disability leave policies and see whether they give you and line managers some flexibility to negotiate employees’ return-to-work dates.

Dave Clemens

Editor-in-Chief

HR Rapid Learning Center

UPCOMING AUDIO CONFERENCE: Don't miss B21’s upcoming audio conference , "How to Curb FMLA Intermittent Leave Abuse: New Tools."  It’s no secret that a few bad apples exploit the complexity of the Family and Medical Leave Act, taking advantage of employers who fear they’ll get sued if they try to stop abuse. And you know all too well what happens when you fail to confront abuse: productivity and morale suffer. On Tuesday, November 3, our speaker, Linda Hollinshead, Esq., will show you how to attack this nagging problem with confidence, rein in abuses, and prevent FMLA malingerers from hurting your company’s bottom line.

ADA: Drug testing must be carefully targeted

Dear HR Executive,

If you test employees for illegal drug use, you probably have good reason. But be careful you don’t cast your net too wide.

A Michigan-based auto parts maker did, and got itself sued by the EEOC.

The company, Dura Automotive, tested employees for five controlled substances. But the test also detected seven more classes of legal prescription drugs.

Forbidden medical inquiries

Worse, the EEOC claimed, the employer forced employees to disclose the medical conditions for which they were taking the legal drugs, and agree to stop using them. The EEOC argued that there was no evidence any of these drugs were affecting job performance.

The EEOC suit accuses the employer of violating the Americans With Disabilities Act, which bars certain medical exams and inquiries.

Of course, testing for illegal drugs is not considered a violation of the ADA. Neither is asking employees about any current illegal drug use.

But if you do such tests or ask such questions, make sure your inquiries don't stray outside the legal framework. For more information on what's legal and what's not, check the EEOC's web page on medical inquiries and the ADA.

Dave Clemens

Editor-in-Chief

Human Resources Rapid Learning Center

UPCOMING AUDIO CONFERENCE: Don't miss B21’s upcoming audio conference , "The Pandemic H1N1 Flu: How to Plan for it – and Protect Your Company." H1N1 (formerly know as “Swine Flu”) is highly communicable and potentially deadly. The White House just issued a statement saying 50% of the U.S. population could get sick and 1.8 million could be hospitalized. This illness WILL affect your company in the coming weeks and months. Are you ready? Do you have a plan to protect both your employees and your business operations? If not, you could get caught flat-footed – which could have serious short-term and long-term consequences. Don’t let it happen. Attend this Webinar and hear crisis management consultant Jan Decker explain what you need to do BEFORE the pandemic hits.

Disability discrimination: Is it ADHD or just poor work performance?

Dear HR Executive:

A  Brooklyn, NY, employer has just paid $70,000 to settle a disability discrimination claim because it didn’t know how to handle an employee with ADHD.

Anywhere between 5% and 16% of the adult population exhibits at least some symptoms of ADHD (attention deficit-hyperactivity disorder). ADHD symptoms – e.g., distractibility, lack of attention to detail, impulsivity, restlessness – can look an awful lot like plain old performance problems.

Of course, if ADHD symptoms interfere with worker's ability to get the job done, then the employer can take action. But if the company disciplines when it could accommodate, it could be risking a lawsuit for disability discrimination.

The key question to ask to avoid a disability discrimination claim: Can the employee do the job, with or without a reasonable accommodation? In the Brooklyn case, the employer apparently concluded that ADHD was too big a liability, even though there was plenty of evidence that the worker could do the job. (EEOC  v. Starrett City Inc., No. 06-CV-3230, E.D. N.Y.)

In the case, a housing complex refused to promote an apprentice mechanic with ADHD to a permanent job and ended up firing the apprentice. But the worker had performed well for four years and was the senior apprentice to apply for the position. The EEOC filed a disability discrimination lawsuit on his behalf, and the employer settled it for $70,000. 

With greater attention being paid to adult ADHD, and with the EEOC considering rules that would offer greater ADA protection for such learning disabilities, you may want to review the accommodations your company can offer employees or applicants with ADHD.

The right accommodation will depend in part on which of three kinds of symptoms the person presents: 

Inattention. The person seems not to listen, loses concentration, or fails to follow through on tasks. Try giving the person more structure through explicit deadlines and frequent performance check-ups.  

Hyperactivity. The person is fidgety, restless and overly talkative. Try reducing the distraction in the work environment – noise, co-worker chatter, etc.
 
Impulsivity. The person interrupts or intrudes on others, and/or makes frequent impulsive comments. Try moving the employee’s work station away from others and/or closer to the supervisor’s.

Dave Clemens
Editor-in-Chief
The HR Café Newsletter

UPCOMING AUDIO CONFERENCE: Don't miss B21’s upcoming audio conference , "Insider Info on the Healthcare Reform Bill: What HR REALLY Needs to Know." Confused about healthcare reform? You’re not alone. Most media coverage is about what reform means to consumers of health care. But what’s it going to mean to your company? And what’s it mean to you as an HR professional?  On Wednesday August 12, our speaker Ashley Gillihan,  has been following the debate up close. He’s been talking to insiders in the government and has prepared a presentation that will help you understand which aspects of the proposed health care reform have no chance of happening, which might happen, and which will almost certainly come to pass. He’ll continue covering the reform bill right up until the August 12 presentation and give you the latest perspective so you can start preparing for change.

Discrimination in the workplace: “Ick. You look gross. You can’t work here.”

Dear HR Executive:

“You’re too ugly for this job.”

According to the EEOC, that’s more or less what a manager at Extra Space Management, a storage facility in Gaithersburg, MD, said.

The EEOC, which sued the company for disability discrimination in the workplace, said an area manager met with the employee – who'd been scarred by a house fire – and noticed he was “handicapped, deformed, or something.” It was clear, the manager sagely opined, that the employee, a maintenance worker, “can’t get the job done.”

Obviously this ended badly for the company. It paid $95,000 to settle the suit, and agreed to institute comprehensive ADA training for employees and managers.

You might want to pass along this case to your managers, as a reminder that disability discrimination doesn’t just involve job candidates who are in a wheelchair, or blind, or deaf, or other obvious disabilities. And it doesn’t even turn on the question of whether something like facial scarring is even a “real” disability.

The key issue in these discrimination in the workplace cases, of course, is “perceived disability.” This area manager perceived that the candidate was disabled, and concluded (without any real evidence) that the disability would prevent the worker from doing the job.

Michael Boyette
Editor
HR Café Training Center

UPCOMING AUDIO CONFERENCE: Don't miss B21’s upcoming audio conference , "Exempt or Nonexempt? Prepare for More Aggressive Wage & Hour Enforcement Under Obama."  On Thursday, July 2, our speaker, Edward Bergmann will lay out for HR executives a detailed overview of the white-collar exemptions, providing specific, practical examples showing how they’re applied. The course will also highlight the “hot spots” -- those areas where employers are prone to make classification mistakes, and offer advice for conducting audits.

ADA Restoration Act

Dear HR Executive:

You've probably heard about the ADA Restoration Act (ADARA, S. 1881, H.R. 3195). Just when you were thinking, "FMLA intermittent leave really makes my day," it could get even better if Congress passes this law. Opponents are saying you could end up spending hours every week trying to accommodate "disabled" employees with neck strains, headaches and sore feet. A House committee held hearings on the topic on Tuesday, January 29.

I'm going to point you to a lengthy article from The Heritage Foundation that explains why it's a big mistake for Congress to tell companies they have to accommodate people with minor ailments. The gist of the HF's argument is that the ADARA will be prohibitively expensive and -- worse yet -- will hurt people who really are disabled under the current ADA definition (which says a disability is something that "limits a major life activity"). Please note the SHRM has asked all its members to oppose the legislation.

To be fair, I'm including a link that discusses the ACLU's position, which is that recent court decisions have eroded the protections provided by the ADA and made it necessary to restore its original intent. Here's an article stating the position of the ACLU and many organizations that represent the disabled. 

I encourage you to tell us what YOU think. Do you agree/disagree with Heritage and SHRM? Do you think they're being mean spirited? Is there a compromise? What would the ADARA mean at your company? Go to the "comments" link below and share your thoughts.

Stephen Meyer
B21 Publisher

RISK-FREE TRIAL -- ONLINE TRAINING LIBRARY FOR HR AND MANAGERS: Want to learn about an amazingly effective and affordable way to train yourself, your HR staff and your managers and supervisors? Sign up for a risk-free trial to the HR Cafe Training Center Online. It's a powerful resource that allows HR executives to deploy high-impact training modules effortlessly throughout their organizations. Want to see what it's about before you sign up for a trial? Check out just one program from the huge library of content in the HR Cafe. It's a six-minute "Quick Take" training module called "Why 95% of Training Doesn't Stick."

ADA and Accommodations

Dear HR Executive:

Here's a piece from B21's newsletter Human Resources 21 about how technology is allowing disabled people to excel in the workplace. We ran it right after a company got hit with an $8 million lawsuit because hiring managers assumed a blind person couldn't possibly function as a customer service rep. That's an assumption a lot of sighted people would make, and it happens to be completely false. Read on.

Stephen Meyer
B21 Publisher

Employers need to be aware of how technology 'enables' disabled employees

Clever entrepreneurs have come up with devices that help all sorts of disabled people function normally. The more HR executives and line managers are aware of these sorts of devices, the less likely you are to fall victim to your biases about people you perceive as disabled. And the less likely you are to provoke lawsuits. Some examples:

Arm Amputees
Imagine you’re interviewing a one-armed person for a job in a mailroom. Impossible, right? How can you open envelopes with one hand? Easy.

Turns out there’s an inexpensive device called a “one-handed envelope opener” (check it out at sammonspreston.com). There’s also a one-handed nailing hammer and a one-handed button hook.

Hearing impaired
TTY devices and visual alerts allow deaf people to do many things hearing people do. For the hearing impaired, a headset device called HATIS (www.hatis.com) connects a hearing aid to a telephone. This $200 accommodation allows a hearing-impaired person to function normally in customer service and other jobs requiring phone work.

Visually impaired
A product called JAWS (Job Access With Speech) translates text into speech. A customer service rep, for example, wears a split headset, in which they hear the JAWS voice in one ear and the customer’s in the other. This allows reps to process written language at 400 to 700 words per minute, faster than many sighted people.

Microsoft also has a product called BrailleNote, a portable computer device that allows blind people to function just like sighted employees in the workplace.

RISK-FREE TRIAL -- ONLINE TRAINING LIBRARY FOR HR AND MANAGERS: Want to learn about an amazingly effective and affordable way to train yourself, your HR staff and your managers and supervisors? Sign up for a risk-free trial to the HR Cafe Training Center Online. It's a powerful resource that allows HR executives to deploy high-impact training modules effortlessly throughout their organizations. Want to see what it's about before you sign up for a trial? Check out just one program from the huge library of content in the HR Cafe. It's a six-minute "Quick Take" training module called "Why 95% of Training Doesn't Stick."