TOP TAKEAWAYS FROM THE NEW EEOC ENFORCEMENT GUIDANCE ON PREGNANCY DISCRIMINATION

TopTakeaway2Our team of labor and employment attorneys has reviewed and summarized the EEOC’s new guidance from every angle. Of course, in this blog, I primarily focus on the guidance’s implication as to the ADA/ ADAA. But for completeness, here are our key takeaways from the guidance, including important points not directly relating to the ADA:

 

#1 Employers Must Accommodate Pregnant Employees With “Disabilities” Under the ADA

Prior to enactment of the ADAAA, many courts and employers took the view that pregnancy and medical conditions related to pregnancy were not “impairments” within the meaning of the ADA and therefore could not qualify as “disabilities.” The law remains that pregnancy itself is not an impairment within the meaning of the ADA and thus is never on its own a disability.

However, many women suffer from impairments related to their pregnancy which will qualify as a disability under the ADA/ADAAA. Some examples of pregnancy-related impairments qualifying as “disabilities” include:

  • Impairments of the reproductive system making a pregnancy more difficult
  • Disorders of the uterus and cervix, e.g., cervical insufficiency requiring bed rest
  • Pregnancy-related anemia (affecting normal cell growth)
  • Pregnancy-related sciatica (affecting musculoskeletal function)
  • Pregnancy-related carpel tunnel syndrome (affecting neurological function)
  • Gestational diabetes (affecting endocrine function)
  • Pelvic Inflammation
  • Symphysis pubis dysfunction
  • Abnormal heart rhythms
  • Preeclampsia
  • Depression

The EEOC identified additional pregnancy-related impairments which they believe would qualify as disabilities under the ADA. These impairments previously would have been considered as a part of a normal, run-of-the-mill pregnancy and would not have reached the level of a “disability” because they would not have substantially limited a major life activity. Therefore, according to the EEOC’s new guidance, the following pregnancy-related impairments might also constitute “disabilities,” fitting within the EEOC’s expansive view of what constitutes as a “disability” under the ADAAA:

  • Nausea causing dehydration
  • Swelling of the legs
  • “High Risk” pregnancies without an identified impairment
  • Back pain
  • Complications requiring bed rest
  • Cesarean section
  • Aftereffects of a delivery
  • Lactation

Like other pronouncements by the EEOC on accommodating disabled employees, the EEOC instructs employers they should not engage in “exhaustive analysis” of whether an impairment is a covered disability and instead construe the definition of “disability” broadly—fitting with EEOC’s advice to skip the “disability” analysis entirely and instead focus exclusively on providing reasonable accommodations.

#2 Non-Disabled Pregnant Employees Also Must Receive Reasonable Accommodation

The EEOC’s guidance dictates employees who are not “disabled” under the ADA/ ADAAA definition of “disability” are nonetheless eligible to receive the same reasonable accommodations as “disabled” employees. In this way, the EEOC is applying the “reasonable accommodation” and “undue hardship” standards on non-disabled employees, thus expanding and extending the reach of the ADA/ ADAAA to non-disabled employees. The EEOC explains: “[I]f a pregnant worker requests a change that the employer is providing as a reasonable accommodation to a coworker with a disability, the employer may evaluate the pregnant employee’s request in light of whether the change would constitute an ‘undue hardship,’ since this would amount to treating the pregnant employee the same as an employee with a disability whose accommodation request would also be subject to the defense of undue hardship.”

Therefore, employers are expected to offer benefits to pregnant workers on the same terms as they offer benefits to other workers, similar in their ability or inability to work.   In plain language—the EEOC expects employers will accommodate pregnant employees with the same accommodations offered to employees with disabilities under the ADA/ ADAAA and/or who are injured on the job. A pregnant employee is to receive the same accommodation as a disabled employee, despite the fact the pregnant employee may not be in fact “disabled” under the ADA.

#3 The PDA Protects Pregnant Employees From Negative Stereotypes

The PDA prohibits adverse treatment of pregnant women arising from stereotypes or assumptions about their job capabilities or commitment to the job. For instance, an employer might refuse to hire a pregnant woman based on an assumption that she will have attendance problems or leave her job after the child is born; this is an adverse decision based on a stereotype or assumption and thus violates Title VII.

Based on this reasoning, the EEOC likewise concludes an employer cannot require an employee to take a leave of absence even out of genuine concern for the fetus. While the EEOC acknowledges that is some “rare” circumstances an employer may claim excluding pregnant or fertile women from a certain job is lawful because non-pregnancy is a bona fide occupational qualification (BFOQ), the EEOC warns that BFOQ defense is an “extremely narrow exception . . . .” The defense cannot be based on “fears of danger to the employee or her fetus, fears of potential tort liability, assumptions and stereotypes about the employment characteristics of pregnant women such as their turnover rate, or customer preference.”

#4 The PDA Protects Past and Future Pregnancies

An employee does not have to be currently pregnant to have a viable claim under the PDA. For instance, an employee may claim she was subjected to discrimination based on past pregnancy, childbirth, or related medical conditions. The EEOC’s position is a causal connection between a claimant’s past pregnancy and the challenged action will likely be found when there is close timing between the two, e.g., an employee is discharged during her pregnancy-related medical leave. The EEOC maintains even without a close timing, an employee can maintain a claim of pregnancy discrimination; a lengthy time difference between a pregnancy and the challenged action will not foreclose a finding of pregnancy discrimination when there is evidence that pregnancy, childbirth, or related medical conditions motivated the action.

Likewise, women cannot be discriminated against with regard to job opportunities and benefits because they might become pregnant. Title VII prohibits an employer from discriminating against an employee because of her intention to become pregnant, infertility treatments, and use of contraceptives.

#5 The PDA Protects Abortion

Title VII protects women from adverse employment actions for having an abortion or contemplating having an abortion. Title VII would similarly prohibit adverse employment actions against an employee based on her decision not to have an abortion.

#6 EEOC’s Health Insurance Mandates

The EEOC’s position is an employer would violate Title VII by providing health insurance that excludes coverage of prescription contraceptives but otherwise provides comprehensive coverage. To comply with Title VII, an employer’s health insurance plan must cover prescription contraceptives on the same basis as prescription drugs, devices, and services that are used to prevent the occurrence of medical conditions other than pregnancy. For example, if an employer’s health insurance plan covers preventative care for medical conditions such as vaccinations, physical examinations, prescription drugs preventing high blood pressure or to lower cholesterol levels, and/or preventative dental care, then prescription contraceptives must also be covered.

#7 Best PracticesBestPractices

The EEOC issued a list of suggested “best practices” for employers, including:

  • Developing a written policy addressing the PDA and ADA
  • Training managers regarding the rights and responsibilities under the PDA
  • Drafting written job descriptions containing specific, job-related qualification standards, duties, functions, and competencies to minimize the potential for gender stereotyping and discrimination on the basis of pregnancy, child birth, and related medical conditions
  • Revising workplace policies limiting employee flexibility, such as fixed hours of work and mandatory overtime, to ensure they are necessary for business operation
  • Reviewing hiring procedures to give the same weight to cumulative relative experience that would be given to workers with uninterrupted service
  • Ensuring employees who are on leaves of absence due to pregnancy, childbirth, or related medical conditions have access to training, if desired, while out of the workplace
  • Monitoring compensation practices and performance appraisal systems for patterns of potential discrimination based on pregnancy, and ensuring compensation and performance appraisals are based on employees’ actual job performance and not on stereotypes
  • Reviewing light duty policies to ensure any light duty policy can be accessed by pregnant employees

Questions about the new guidance, its requirements, implications or enforceability? Please do not hesitate to contact us.

IS THE NEW EEOC PREGNANCY GUIDANCE ENFORCEABLE?

The EEOC’s new pregnancy enforcement guidance is controversial.  PregnantWorker

The guidance pushes and expands the boundaries of the law in several important respects. For instance, the EEOC now requires employers to make the same reasonable accommodations available for non‑disabled pregnant employees as it does for disabled employees under the ADA/ ADAAA. Applying the “accommodations” and “undue burden” standards outside of the context of employees who are actually “disabled” under the ADA/ ADAAA is unprecedented and clearly marks an expansion of the law. Likewise, the EEOC dictates an employer must offer prescriptive contraceptive coverage if it offers comprehensive health insurance which includes coverage for preventative care for medical conditions such as vaccination and prescription drugs that prevent high blood pressure or lower cholesterol levels. The EEOC’s position is an abrogation and departure from an Eighth Circuit case holding otherwise. See Union Pac. R. R. Employment Practices Litig., 479 F.3d 936 (8th Cir. 2007). In a footnote, the EEOC simply states it “disagrees with the conclusion” of the Eighth Circuit case. The EEOC’s position on mandatory contraceptive coverage may also run afoul of the recent Supreme Court case, Burwell v. Hobby Lobby Stores, Inc., et.al, 134 S.Ct. 2751 (2014); this critical issue is only given brief mention in a footnote.

If there is any doubt of the controversy surrounding the new pregnancy guidance, just look to the Commission itself. The final vote on the guidance was 3-2 in favor. Commissioners Lipnic and Barker issued public statements disapproving of the EEOC guidance. In particular, Commissioner Lipnic questioned the timing of the guidance (right before the Supreme Court is set to rule on a PDA case, Young v. United Parcel Service, Inc., 707 F.3d 437 (4th Cir. 2013), cert. granted, 86 USLW 3602 (U.S. July 1, 2014)), and without first making the EEOC’s Guidance available for public comment.

ISSUE: Are all of the provisions of the guidance enforceable, especially the EEOC’s new mandates?

Consider the recent Supreme Court case of Vance v. Ball State, 133 S.Ct. 2434, 2449-50 (2013), wherein the Supreme Court rejected the EEOC’s “nebulous” definition of “supervisor” as outlined in its enforcement guidance. In Vance, the Court characterized the EEOC’s guidance as a “study in ambiguity.” The Court held it would not defer to the EEOC guidance because the guidance did not have the “power to persuade,” which “depend[s] upon the thoroughness evident in its consideration, the validity of its reasoning, [and] its consistency with earlier and later pronouncements.” Simply put, the EEOC did not find the EEOC Guidance persuasive and thus was not bound to it.

The EEOC reached the same conclusion in another employment case issued last year, University of Texas Southwestern Medical Center v. Nassar, 133 S.Ct. 2517 (2013). Again the Court rejected the EEOC’s enforcement guidance as to the causation standard to be applied to a Title VII retaliation case. The Court reasoned the guidance at issue lacked the “persuasive force” to be afforded deference under the standard set forth in Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944). The Court specifically found the guidance did not address the interplay between the specific statutes at issue and its reasoning was circular and unsupported.

TakeAway

The Takeaway:  The controversial aspects of the EEOC’s guidance will likely be challenged in Court, and may not be afforded deference as indicated by the Supreme Court’s recent hostility toward the EEOC’s guidances.

 

ACCOMMODATING PREGNANT EMPLOYEES EEOC ENFORCEMENT GUIDANCE ON PREGNANCY DISCRIMINATION – PART 2

Pregnancy_Workplace

PART 2

1.   Pregnant Employees With a “Disability” Under the ADA/ADAAA Receive Reasonable Accommodation

This concept is not new. The guidance reiterates a pregnant employee may be entitled to reasonable accommodation under the ADA for limitations resulting from: (1) pregnancy-related conditions that constitute a disability or (2) the interaction of the pregnancy with an underlying impairment.

The EEOC lists the types of possible accommodations, absent undue hardship:

  • Redistributing marginal functions (nonessential job duties)
  • Altering how an essential or marginal job function is performed
  • Modifying workplace policies
  • Purchasing or modifying equipment or devices
  • Modifying schedule
  • Granting additional leave
  • Reassigning employee to open, available position for which the employee is qualified

Again, nothing new or earth shattering as to this list—they are the same as the accommodations listed under the ADA guidance.

Here are selected examples provided in the guidance:

1.  Pregnancy-Related Impairment Constitutes a Disability (Regardless of Duration) Requiring Accommodation

A clerk responsible for receiving and filing construction plans for development proposals was diagnosed with a pregnancy-related kidney condition that required that she maintain a regular intake of water throughout the workday. She was prohibited from having any liquids at her workstation due to the risk of spillage and damage to the documents. Her manager arranged for her to have a table placed just outside the file room where she could easily access water

2.  Limitations Resulting From Interaction of The Pregnancy With Underlying Impairment/ Disability

An employee with depression found that her condition worsened during her pregnancy because she was taken off her regular medication. Her physician provided documentation indicating her symptoms could be alleviated by a counseling session each week. Since appointments for the counseling sessions were available only during the day, the employee requested that she be able to work an hour later in the afternoon to cover the time. The manager concluded that, because the schedule change would not adversely affect the employee’s ability to meet with customers and clients, and that some of the employee’s duties, such as sending out shipments and preparing reports, could be done later in the day, the accommodation would not be an undue hardship.

The Takeaway: If a pregnant employee has an impairment which limits a major life activity either caused by or related to the pregnancy, or an underlying impairment exacerbated by the pregnancy and meets the definition of “disability” under the ADA/ ADAAA, the employee would be eligible for a reasonable accommodation, absent undue hardship. The pregnant employee’s request for special treatment linked to her medical condition begins the interactive process. The employer should follow all normal steps for processing the accommodation request (e.g., employee completes Medical Questionnaire; healthcare provider completes and certifies Medical Questionnaire; contact JAMS for ideas for accommodations; consider alternative accommodations; meet with employee to discuss all available accommodations; select effective accommodation and communicate decision to employee).

 

2.  Non-Disabled Pregnant Employees Also Receive Reasonable Accommodation

The controversial and far reaching aspect of the new guidance is the EEOC’s dictate requiring employers to treat pregnant workers “the same as other employees who are similar in their ability or inability to work.” The EEOC reasons Title VII requires individuals affected by pregnancy, childbirth, or related medical conditions be treated the same for all employment-related purposes as other persons not so affected but similar in their ability or inability to work.   See 42 U.S.C. § 2000e(k).

Based on this statement of the law, the EEOC concludes: “[I]f a pregnant worker requests a change that the employer is providing as a reasonable accommodation to a coworker with a disability, the employer may evaluate the pregnant employee’s request in light of whether the change would constitute an ‘undue hardship,’ since this would amount to treating the pregnant employee the same as an employee with a disability whose accommodation request would also be subject to the defense of undue hardship.” That is to say, the EEOC’s position is that pregnant employees who are not “disabled” under the ADA/ ADAAA definition of “disability” are nonetheless eligible to receive the same reasonable accommodations as “disabled” employees. In this way, the EEOC is applying the “reasonable accommodation” and “undue hardship” standards on non-disabled employees, thus expanding and extending the reach of the ADA/ ADAAA to non-disabled employees.

Under the new guidance, an employer is expected to offer benefits to pregnant workers on the same terms it offers benefits to other workers, similar in their ability or inability to work.   In plain language—the EEOC expects employers will accommodate pregnant employees with the same accommodations offered to employees with disabilities under the ADA/ ADAAA and/or who are injured on the job. That is to say, a pregnant employee is to receive the same accommodation as a disabled employee, despite the fact the pregnant employee may not be in fact “disabled” under the ADA.

The EEOC particularly focuses on the duty to accommodate pregnant employees with a light duty position. The EEOC’s light duty example:

          Employer Does Not Provide Equal Access to Light Duty

An employer has a policy or practice of providing light duty, subject to availability, for any employee who cannot perform one or more job duties for up to 90 days due to injury, illness, or a condition that would be a disability under the ADA. An employee requests a light duty assignment for a 20-pound lifting restriction related to her pregnancy. The employer denies the light duty request, claiming that pregnancy itself does not constitute and injury, illness or disability, and that the employee has not provided any evidence that the restriction . . . constitutes a disability under the ADA. The employer has violated the PDA [Pregnancy Discrimination Act] because the employer’s policy treats pregnant employees differently from other employees similar in their ability or inability to work.

The EEOC further states: “An employer does not violate the PDA when it offers benefits to pregnant workers on the same terms that it offers benefits to other workers similar in their ability or inability to work. Therefore, if an employer’s light duty policy placed certain types of restrictions on the availability of light duty positions, such as limits on the number of light duty positions or the duration of light duty assignments, the employer may lawfully apply those restrictions to pregnant workers, as long as it also applies the same restrictions to other workers similar in their ability or inability to work.”

However, the employer’s restrictions have to be equally applied, as demonstrated in this example:

Employer Does Not Apply Restrictions Equally

An employer makes six light duty positions available to workers unable to perform one or more job duties due to an on-the-job injury, pregnancy, or an injury, illness or condition that would constitute a disability under the ADA. A pregnant worker applies for a light duty assignment as a result of work restrictions imposed by her pregnancy. The employer denies the request, claiming that all six positions are currently filled. The employee produces evidence that in the past, the employer has provided light duty assignments to workers injured on the job even when all six assignments were filled. The employee has provided evidence that the policy’s restrictions were not applied equally to the pregnant worker’s request for a light duty position.

 The Takeaway: Under the new guidance, employers are expected to accommodate a pregnant employee, even if she does not qualify as “disabled” under the ADA/ ADAAA, by offering the same accommodations provided to other employees who are either “disabled” under the ADA/ ADAAA or who receive accommodations as a result of a work place injury or accident (worker’s compensation). Therefore, to comply, when a pregnant employee requests accommodation, follow the regular steps for accommodating ADA/ ADAA disabilities but keep in mind a pregnant employee still would be eligible for an accommodation previously provided to a disabled or injured employee, even if the pregnant employee is not disabled. To determine what accommodations fall within this category, an employer will need to take inventory and keep accurate records of all accommodations provided to employees, including accommodations provided to disabled employees, employees injured on the job, and pregnant employees.

Takeaway II: The guidance allows for restrictions to accommodations (or at least light duty accommodation), as long as the restriction is equally enforced as to disabled employees, employees injured on the job, and pregnant employees. Therefore, employers are advised to review its accommodations and light duty policies in light of this guidance and consider adding restrictions to ensure light duty is not over utilized. However, what remains unclear is how the EEOC will reconcile such restrictions in light of the ADA/ ADAAA’s expectations that such restrictions may need to be reasonably accommodated as well.

There’s still more to discuss on this guidance. Next week will consider whether the guidance is enforceable.

 

 

 

EEOC ISSUES NEW GUIDANCE ON PREGNANCY DISCRIMINATION AND ACCOMMODATION – PART 1

Pregnancy_Workplace

PART 1

“EXTREMELY FAR REACHING” EEOC GUIDANCE ON PREGNANCY DISCRIMINATION AND ACCOMMODATION

That’s David Fram’s (NELI ADA Guru Extraordinaire) characterization of the EEOC’s latest “Enforcement Guidance: Pregnancy Discrimination and Related Issues” issued on Monday.

ISSUE No. 1: Is pregnancy an actual “disability” as defined by the ADA (i. e., a mental or physical impairment that substantially limits one or more major life activity)?

We’ll closely examine the guidance and its implications on the ADA over a series of posts, but for now let’s tackle the initial issue. The starting place for every accommodations issue—does the employee have an actual “disability” as defined by the ADA?

Human Resources professionals have been accustomed to automatically dismiss a pregnancy as not being a disability under the ADA, and with reason—a pregnancy is a temporary condition and normally doesn’t involve a mental or physical impairment substantially limiting a major life activity.

Not so fast! As you will see below, the EEOC now suggests many pregnancy-related conditions constitute a “disability” and thus require accommodation.

•  The EEOC guidance confirms the longstanding interpretation that “pregnancy itself is not an impairment within the meaning of the ADA, and it is never on its own a disability.”

•  However, the guidance notes many women suffer from impairments related to their pregnancy which will qualify them as disabled under the ADAAA. Some pregnancy-related impairments would obviously qualify as a “disability,” such as:

  • Impairments of the reproductive system making a pregnancy more difficult
  • Disorders of the uterus and cervix, e.g., cervical insufficiency requiring bed rest
  • Pregnancy-related anemia (affecting normal cell growth)
  • Pregnancy-related sciatica (affecting musculoskeletal function)
  • Pregnancy-related carpel tunnel syndrome (affecting neurological function)
  • Gestational diabetes (affecting endocrine function)
  • Pelvic Inflammation
  • Symphysis pubis dysfunction
  • Abnormal heart rhythms
  • Preeclampsia
  • Depression

• The EEOC also included pregnancy-related impairments that previously would have been considered as a part of the run-of-the-mill pregnancy and would not have reached the level of a “disability,” thus marking the EEOC’s continued expansive view of what now constitutes a “disability.” These impairments now may be considered a disability, including:

  • Nausea causing dehydration
  • Swelling of the legs
  • “High Risk” pregnancies without an identified impairment
  • Back pain
  • Complications requiring bed rest
  • Cesarean section
  • Aftereffects of a delivery
  • Lactation

• The EEOC instructs employers should not engage in “exhaustive analysis” of whether an impairment is a covered disability and instead construe the definition of “disability” broadly—fitting with EEOC’s advice to skip the “disability” analysis entirely and instead focus exclusively on providing reasonable accommodations.

The Takeaway:    Don’t dismiss a pregnant employee’s request outright. When a pregnant employee requests a reasonable accommodation (modification of a workplace rule, leave, altering job functions, temporary assignment to light duty, change in work schedule) because of any pregnancy-related medical issue (even if undefined by the employee), take the following steps:

  • Treat the request as if it is a request for accommodation under the ADA
  • Engage in (and document) the interactive process
  • Provide the employee with an ADA/ ADAAA compliant questionnaire (also compliant with HIPAA and GINA) to determine whether the employee has a “disability”
  • Ensure the pregnant employee’s healthcare provider validates the impairment, the major life activity limited, the need for an accommodation, and the requested/ effective accommodations.
  • Consider other accommodations—remember the employer chooses an effective accommodation.
  • Communicate accommodations decision to employee.

Stay tuned . . . next post on specific accommodations for pregnant employees—including the controversial reassignment to light duty!

TENTH CIRCUIT TAKES AIM AT EEOC’S POSITION ON “NO FAULT” ATTENDANCE POLICIES

wowIn a surprising, almost shocking turn of events, the Tenth Circuit issued a published opinion on May 29th, turning the status of ADA leave accommodations on its heels. The case is Hwang v. Kansas State University, and the full opinion is here.

Let’s start with the opening line of the opinion, cogently stating the issue: “Must an employer allow employees more than six months’ sick leave or face liability under the Rehabilitation Act?”

If you would have asked this question to me, or any employment lawyer knowledgeable on the ADA and ADAAA, our answer (before May 29th) would have been: “Maybe, Probably Yes—No fault leave policies are subject to modification as a reasonable accommodation, and the exemption is if the employer can demonstrate it would suffer a demonstrable, convincing undue hardship by extending the leave—a tough burden since the employee has already been on leave.” See my earlier article on no fault leave policies here.

The Tenth Circuit’s recent answer: “Unsurprisingly, the answer is almost always no.”

Wait, what?!?! Unsurprisingly? This answer is very surprising! Unexpected! Startling!

The Facts: By all accounts, Ms. Hwang “was a good teacher suffering a wretched year.” She signed a contract with Kansas State to be an assistant professor over three academic terms (fall, spring and summer). Before the fall term began, Hwang was diagnosed with cancer. Kansas State provided Hwang with a six month paid leave of absence. At the end of the six months, Hwang requested an extension of the leave, stating she could return for the summer session. Kansas State refused, citing its “inflexible policy allowing no more than six months’ leave.” Hwang sued under the Rehabilitation Act, the same legal standard regarding accommodations as the ADA. The District Court dismissed Hwang’s claim on a motion to dismiss.

The Holding: Tenth Circuit affirmed, holding Rehabilitation Act does not require an employer to extend its six months’ leave or modify its “inflexible leave policy” as a reasonable accommodation.

Oh, but this decision has so much more to offer than just that holding.

Take the fact the Tenth Circuit outrightly rejected the EEOC’s guidance regarding modifying no fault attendance policies as a reasonable accommodation:

 “ . . . the EEOC manual commands our deference only to the extent its reasoning actually proves persuasive. . . . And the sentence Ms. Hwang cites [requiring modification of no fault leave policy as a reasonable accommodation] doesn’t seek to persuade us of much.”

Ouch. Smack-down.

The Tenth Circuit then cites to another portion of the same EEOC Guidance and used it against the EEOC:

“[F]lipping through the EEOC manual reveals that when it turns more directly to the question presented in our case it speaks in a way distinctly unhelpful to Ms. Hwang. A few pages later the agency expressly states that an employer does not have to retain an employee unable to perform her essential job functions for six months just because another job she can perform will open up then. An employer doesn’t have to do so much, the EEOC says, “because six months is beyond a reasonable amount of time.” . . . Here then the EEOC seems to agree with our conclusion that holding onto a non-performing employee for six months just isn’t something the Rehabilitation Act ordinarily compels.”

Double ouch. Double smack-down.

Further sealing the deal, the Tenth Circuit found an “inflexible leave policy,” also called a “no fault” leave policy, actually benefits and is good for disabled employees. Here’s the rationale:

“Neither is there anything inherently discriminatory in the fact the University’s six-month leave policy is “inflexible,” as Ms. Hwang would have us hold. To the contrary, in at least one way an inflexible leave policy can serve to protect rather than threaten the rights of the disabled—by ensuring disabled employees’ leave requests aren’t secretly singled out for discriminatory treatment, as can happen in a leave system with fewer rules, more discretion, and less transparency.“

So, we now have an appellate court endorsing no fault leave policies—the same policies the EEOC has been condemning (and suing employees over).

Finally, this opinion is just chock-a-block full of quotable jewels. Consider this:

“After all, reasonable accommodations—typically things like adding ramps or allowing more flexible working hours—are all about enabling employees to work, not to not work.”

Or this beauty:

“Ms. Hwang’s is a terrible problem, one in no way of her own making, but it’s a problem other forms of social security aim to address.”

And this:

“The Rehabilitation Act seeks to prevent employers from callously denying reasonable accommodations that permit otherwise qualified disabled persons to work—not to turn employers into safety net providers for those who cannot work.”

Simply put, this opinion is too good to be true! Let’s see if it sticks or other circuits adopt it.

SECOND–GUESSING EMPLOYEE’S DOCTOR

Here’s a common scenario: In the course of the interactive prCrazyDoctor_300x200ocess, while evaluating an employee’s ADA request for accommodation and/or FMLA medical certification, you have reason to doubt the treating physician’s diagnosis, prognosis, or recommendations for intermittent leave and reasonable accommodation. Maybe you think the doctor is “fudging” to help her patient receive more generous leave than what is truly medically necessary. Perhaps the doctor is a friend of the employee. Or maybe you think the doctor is just plain wrong. Whatever leads you to doubt and second guess the treating physician’s certification, simply disregarding it is a dangerous choice.

This issue was recently demonstrated in Spurling v. C& M Fine Pack, Inc., ___ F.3d____, 2014 WL 107968 (7th Cir. Jan. 13, 2014).

Relevant Case Facts: An employee worked the night shift, “began to exhibit a pattern of decreased consciousness and alertness” (legal speak for she fell asleep on the job), and was disciplined accordingly. Following the final written warning for the offense, the employee met with her supervisors and told them her sleep issues were caused by medication her doctor had prescribed; she produced a doctor’s note stating: “[Patient] was recently asked to discontinue medicine related to her passing out—please excuse symptoms [at] work.” The employer correctly surmised this was a request for accommodation under the ADA.

Employer responded by providing the employee with the ADA documentation for her doctor to complete. (Check!) Her doctor timely did so, indicating the employee had a mental or physical disability covered by the ADA; recommending periods of scheduled rest during her shift as an accommodation; and indicating “[additional] medical work up” was in progress. (Check!)

The employer elected not to engage in the interactive process with the employee to discuss reasonable accommodations (Oh, no—trouble ahead!). Instead, the employer terminated her (Trouble indeed!!).

The reason? The HR team did not believe the employee’s doctor. The HR Manager testified the doctor’s notation stating the employee was suffering from a condition covered by the ADA was “insufficient to establish that she had a disability.” Likewise, the Vice President of HR testified: “I don’t believe that a doctor is in a position to make that determination. It is his opinion.” (This is the proverbial kiss of death and nail in the coffin in this case!)

The result? The Seventh Circuit held the employer knew of the plaintiff’s medical condition and request for accommodation before the termination decision had been made and yet took an “aggressive approach” by terminating her before accommodating her, or at least engaging the interactive process. Here’s what the Court said:

  • Rather than collaborate with [the employee] or her doctor to find a reasonable accommodation, [the employer] chose to turn a blind eye and terminate her. It did not seek further clarification from either [the employee] or her doctor and disregarded the medical evaluation altogether. This is hardly engaging with [the employee] to determine if a reasonable accommodation could be made. . . . The evidence suggests that a reasonable accommodation was readily available; [the employee] simply needed further medical testing and prescription to control her narcolepsy. . . . [The employer] properly began the interactive process as envisioned by the ADA, but failed to carry it through.

THE TAKEAWAY:

NEVER ignore or disregard a doctor’s certification and recommendations in an ADA interactive questionnaire, even if you think the doctor’s opinion is absurd, outlandish, rubbish and ludicrous!

Instead, take (and document) these steps:
1. Meet with the employee as a part of the interactive process. Ask the employee specifics on the requested accommodation. In this case, at minimum ask how many rest breaks she anticipating needing per shift; how long each break would last; the anticipated timeline for the additional medical workup mentioned in the certification.

2. Have the employee sign a Medical Authorization so that you contact the treating physician with follow up questions about the disability and accommodations.

3. If it wasn’t already covered on the ADA questionnaire, ask the doctor about the general nature of the mental or physical impairment; whether the employee is limited in a major life activity; how long the impairment has or is expected to last; clarification regarding the recommended rest periods; whether the employee presents a risk of danger to herself or others working while prone to narcolepsy; the timeline for the additional medical workup; the probable duration of the disability and/or recommended accommodations.

4. Still don’t believe the doctor’s diagnosis and recommendations? Can you require a second opinion? Probably not. Unlike the FMLA, the ADA regulations do not explicitly provide for a second opinion process. However, the EEOC stated in its enforcement guidance (Insert link): “The ADA does not prevent an employer from requiring an employee to go to an appropriate health professional of the employer’s choice if the employee initially provides insufficient information to substantiate that s/he has an ADA disability and needs a reasonable accommodation.” The EEOC’s caveat suggests an employer may not send the employee to the employer’s health care professional until the employee is first given the change to bring in documentation from his/her personal health care professional, and only if the employee’s documentation from his or her health care professional is insufficient to document a disability. But once the employee’s doctor provides sufficient information to substantiate the disability and need for reasonable accommodation, it appears the EEOC does not allow for a second opinion, and, instead the employer must accept the opinion of the employee’s physician.

5. Make a decision regarding the requested accommodation(s)—and then communicate it to the employee and document it for the file! In this case, the Court concluded: “The evidence suggests that a reasonable accommodation was readily available; [the employee] simply needed further medical testing and a prescription to control her narcolepsy.” The Court’s statement doesn’t provide guidance as to what exactly the reasonable accommodation would be, e.g., allow rest periods during the period of medical testing and until the narcolepsy was controlled by medication, leave of absence while the medical testing was being conducted, or a reassignment of shift? However, the takeaway is the employer must participate in the interactive process and make a determination regarding the requested accommodation(s)—even if the ultimate determination is the accommodation is not reasonable or creates an undue hardship (a topic for another day).

One Last Thought: This case touches on the related topic of what to do when an employee claims a disability and requests an accommodation for the first time in response to discipline—exactly what happened here. We’ll cover that important issue in an upcoming post!

YES, VIRGINIA, EMPLOYEES STILL NEED TO BE “DISABLED” TO TAKE ADVANTAGE OF THE ADA

  Since the ADA Amendments Act, the EEOC has been instructing employers to “skip over” the analysis of whether an employee is  “disabled” under the ADA (e.g., has a mental or physical impairment substantially limiting a major life activity), and instead go straight to the interactive process and offering accommodations.  Indeed, in crafting and enacting the ADA Amendment Act, Congress specifically intended “the primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations [ ] and . . .  that the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis.” 42 U.S.C. § 1201 (note).

In Neely v. PSEG Texas, Limited Partnership, 735 F.3d 242 (5th Cir. 2013), the plaintiff adopted the EEOC’s position and argued the Court erred in submitting a jury question regarding disability—“Was [plaintiff] a qualified individual with a disability?”—as a predicate to a finding of discrimination regarding his termination claim and failure to accommodate claim under the ADA.   Plaintiff suggested under the textual changes to the ADA by the ADA Amendments Act, it is now unnecessary for a plaintiff to prove, and the jury to find, the plaintiff was “disabled” under the ADA.

In what seems an obvious but nonetheless an important and positive clarification for employers, the Fifth Circuit disagreed and held in order for employees to avail themselves of the ADA, they must in fact be “disabled.”  The Fifth Circuit ruled that although the ADA Amendments Act expresses Congress’s intention to broaden the definition and coverage of the term “disability,” it  “in no way eliminated the term from the ADA or the need to prove a disability on a claim of disability discrimination” or a claim of failure to accommodate.  The Court states:

[B]ecause the jury instruction definition of “disability” and “qualified individual” properly conform to the ADAAA (and because the term “disability,” even in its broadest sense, remains to be proved in claims under the ADA), there is no abuse of discretion—or even error—in the use of the terms in the . . . verdict question.

Id. at 246-47.

THE TAKEAWAY:

Employers should still examine whether an employee meets the “disability” definition before engaging in the interactive process and offering accommodations.   Litigators should continue to argue plaintiffs do not meet the definition of “qualified person with a disability,” and thus do not have the protection of the law.