COMMON EMPLOYER QUESTION: ARE WE REQUIRED TO CREATE “LIGHT DUTY” POSITIONS AS A REASONABLE ACCOMODATION?

QuickAnswerQuick Answer: No—an employer is never required to create a “light duty” position for a disabled employee as a reasonable accommodation.  But this shouldn’t end the discussion and the duty to engage in the interactive process.

Blog_LightDuty3

Although the employer is not required to create a “light duty” position, it may be required to make other reasonable accommodations to permit the disabled employee to work, e.g., “restructuring” a job by modifying the way in which the job can be performed or eliminating, reallocating and redistributing non-essential functions (but never truly essential functions).

The other consideration is whether the employer already has existing “light duty” jobs the employee could be reassigned to work.  As will be explained below, such existing “light duty” positions (usually reserved for employees returning from an on the job injury covered by workers’ compensation laws) would be a reasonable accommodation to disabled employees.

The EEOC’s Position on “Light Duty” Positions

On September 3, 1996, the EEOC issued “Enforcement Guidance: Workers’ Compensation and the ADA.”  The EEOC defines the term “light duty” to mean positions created specifically for the purpose of providing work for employees who are unable to perform some or all of their normal duties.

The EEOC’s position is an employer cannot reserve existing, vacant light duty jobs for on-the-job injuries; rather, the employer must consider reassigning any disabled employee (including disabled employees without on-the-job injuries) to such an existing light duty job if it is vacant and if it is needed by the employee as a reasonable accommodation.  However, the EEOC also takes the position an employer may create light duty solely for employees who are injured on the job.

Therefore, to the EEOC the critical distinction is whether the light duty position is created or already exists at the time of the request for accommodation.  If the employer has existing, vacant light duty positions, all disabled employees are eligible for it as an accommodation, regardless of the cause or location of the disability, e.g. whether employees are deemed disabled because of an occupational injury or disabled for any other reason.  On the other hand, if the employer creates a light duty position, the created position can be reserved for employees who are injured on the job; there would be no duty to create a light duty position for disabled employees not injured on the job.

QuickAnswer

The EEOC explains its position regarding “light duty” as an accommodation in three questions and answers as follows:

27. Does the ADA prohibit an employer from creating light duty position for an employee when s/he is injured on the job?

No, in most instances. An employer may recognize a special obligation arising out of the employment relationship to create a light duty position for an employee when s/he has been injured while performing work for the employer and, as a consequence, is unable to perform his/her regular job duties.  Such a policy, on its face, does not treat an individual with a disability less favorably than an individual without a disability . . ..

*  * *

An employer need not create a light duty position for a non-occupationally injured employee with a disability as a reasonable accommodation.  The principle that the ADA does not require employers to create positions as a form of reasonable accommodation applies equally to the creation of light duty positions.  However, an employer must provide other forms of reasonable accommodation required under the ADA. . . . Accordingly, an employer may not avoid its obligation to accommodate an individual with a disability simply by asserting that the disability did not derive from an occupational injury.

In some cases, the only effective reasonable accommodation available for an individual with a disability may be similar or equivalent to a light duty position. The employer would have to provide that reasonable accommodation unless the employer can demonstrate that doing so would impose an undue hardship.

Example: R creates light duty positions for employees when they are occupationally injured if they are unable to perform one or more of their regular job duties.  CP can no longer perform functions of her position because of a disability caused by an off-the-job accident.  She requests that RO create a light duty position for her as a reasonable accommodation. R denies CP’s request because she has not been injured on the job.  R has not violated the ADA.  However, R must provide another reasonable accommodation, absent undue hardship.  If it is determined that the only effective accommodation is to restructure CP’s position by redistributing the marginal functions. And the restructured position resembles a light duty position, R must provide the reasonable accommodation unless it can prove that it imposes an undue hardship.

28.  If an employer reserves light duty positions for employees with occupational injuries, does the ADA require it to consider reassigning an employee with a disability who is not occupationally injured to such positions as a reasonable accommodation?

Yes.  If an employee with a disability who is not occupationally injured becomes unable to perform the essential functions of his/her job, and there is no other effective accommodation available, the employer must reassign him/her to a vacant reserved light duty position as a reasonable accommodation if (1) s/he can perform its essential functions, with or without a reasonable accommodation; and (2) the reassignment would not impose an undue hardship.  This is because reassignment to a vacant position and appropriate modification of an employer’s policy are forms of reasonable accommodation required by the ADA, absent undue hardship.  An employer cannot establish that the reassignment to a vacant reserved light duty position imposes an undue hardship simply by showing that it would have no other vacant light duty positions available if an employee became injured on the job and needed light duty.

Example: R has light duty positions which it reserves for employees in its manufacturing department when they are unable to perform their regular job duties because of on-the-job injuries. CP, an assembly line worker, has multiple sclerosis (MS) which substantially limits a number of major life activities. Eventually CP is unable to perform the essential functions of her position, with or without a reasonable accommodation, because of the MS.  As a reasonable accommodation, CP requests that she be reassigned to a vacant light duty position for which she is qualified.  R says that the vacant light duty position is reserved for employees who are injured on the job and refuses to reassign CP, although it would not impose an undue hardship to do so.  R has violated the ADA by refusing to reassign her to the vacant light duty position.

29If an employer has only temporary light duty positions, must it still provide a permanent light duty position for an employee with a disability-related occupational injury?

Blog_LightDutyNo. The ADA typically does not limit an employer’s ability to establish or change the content, nature, or functions of its positions.  So, for example, an employer is free to determine that a light duty position will be temporary rather than permanent. Thus, if an employer provides light duty positions only on a temporary basis, it need only provide a temporary light duty position for an employee with a disability-related occupational injury.

Jurisprudence Regarding Light Duty Positions and the ADA

JurisdicationThe Fifth Circuit has routinely held an employer has no obligation to create a new “light duty” position for a disabled employee.  Burch v. City of Nacagdoches, 174 F.3d 615 (5th Cir. 1999) (holding city did not need to create light duty job for firefighter to return to work; “because of the small size of the Fire Department, it has no permanent light-duty positions.”); Foreman v. Babcock & Wilcox Co., 117 F.3d 800 (5th Cir. 1997) (“An employer is not required to create “light duty” jobs to accommodate.”); Turco v. Hoechst Celanese Corp., 101 F.3d 1090, 1094 (5th Cir.1996); see also Bailey v. Napolitano, 2012 WL 1658790, * 9 (N.D. Tex. May 11, 2012) (employer articulated a legitimate, nondiscriminatory reason for denying plaintiff’s request for limited or light duty; the employer did not have limited or light duty assignments available at the time of plaintiff’s request, and its policy was limited and light duty assignments were dependent upon work being available and the available duty functions the employee was capable of performing).

Although not directly challenged under the ADA, there are several Fifth Circuit cases in which courts have tacitly honored an employer’s policy of reserving light or limited duty positions for employees injured on the job.  See Hernandez v. Aldine Independent School District, 1999 WL 33659718 (5th Cir. March 18, 1999) (Enforcing policy providing: “light duty work is reserved for employees that have been injured on the job, and who have been restricted to light duty work by a doctor. The work assignment is based on the restrictions on the light duty slip received from the doctor”); Urbano v. Continental Airlines, Inc., 138 F.3d 204, 206 (5th Cir. 1998) (Employer’s policy of reserving light duty program exclusively for employees suffering from work-related injuries did not violate the Pregnancy Discrimination Act); Randall v. Methodist Hospitals of Dallas, 1997 WL 446437, * 3 (N.D. Tex. July 15, 1997) (Plaintiff was temporarily reassigned to light duty work in accordance with Methodist’s policy for employees injured on the job). Again, to date there do not seem to be any Fifth Circuit (or district court cases within the Fifth Circuit) opinion on the EEOC’s requirement regarding existing light duty jobs or otherwise commenting on the EEOC’s enforcement guidance.

One federal court of appeals to address the issue did not adopt the approach taken by the EEOC.  In Dalton v. Subaru-Isuzu, 141 F.3d 667 (7th Cir. 1998), the court considered whether the employer could reserve light-duty positions for employees recuperating from recent injuries who had temporary disabilities. The employer’s program limited the light duty positions to 90 days; they were temporary positions. Plaintiffs argued they should be allowed to permanently occupy the light duty positions as an accommodation under the ADA.  The court stated these positions could be reserved for employees with on-the-job injuries who were temporarily disabled. The court stated:

The ADA does not compel an employer to reduce the number of bona fide temporary jobs it has set aside in conjunction with a program like the one contemplated by the state worker’s compensation statute and to convert them to permanent positions for its disabled employees. The ADA does require that [Defendant] make its light-duty program available to disabled employees who are recuperating from temporary restrictions and are otherwise qualified to participate.

However, the court in Stephenson v. United Airlines, Inc., 9 Fed.Appx. 760, 765 (9th Cir. 2001), suggested a policy limiting light duty job to work-related injuries might be illegal. United relied on a per se policy prohibiting light or modified duty for non-occupational injuries or illnesses as a justification for not conducting an interactive individualized inquiry into the facts of plaintiff’s disability.   Without ruling on the merits of the ADA claim, the Ninth Circuit found that employers must engage in an interactive, individualized dialogue with employees to identify potential options which might serve as a reasonable accommodation.  Id. at 766.  Furthermore, it found employers may not unilaterally adopt or apply policies in a manner that circumvents their obligations under the law.  Therefore, the Stephenson court held “employers may not apply policies in a manner that discriminates against individuals otherwise qualified as disabled under the ADA.”  Id. The court further stated United’s “argument that its light or modified duty was non-discriminatory because it applied equally to all employees neglects to consider its duties under the ADA.  An employer may not unilaterally adopt a policy exempting it from its obligations under the ADA even if the policy is otherwise uniformly applied to all employees.”

TakeAway
The Takeaway:  An employer would be well advised to consider reassigning existing “light duty” positions to a qualified, disabled employee as a reasonable accommodation, even if the employee was not injured on the job or a part of a workers’ compensation program.  That said, even disabled employees who are transferred to the existing “light duty” as a reasonable accommodation must abide by the policies creating the “light duty” position; as such, if there are limitations to the “light duty” position (e.g., the light duty position is only available for a finite period of time or when the employee reaches maximum medical improvement), such restrictions would also apply to disabled employees. If the employer expects the “light duty” job to be temporary, they should clearly state so in writing during the interactive process.

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SAMPLE SHORT FORM ADA POLICY FOR HANDBOOKS

americans-with-disabilities-act

I have advocated each employer with 15 or more employees should have a policy addressing and affirming its obligations under the ADA.  Here is the sample policy I recommend:

 

AMERICANS WITH DISABILITIES ACT

It is the Company’s policy not to discriminate against qualified individuals with a disability with regard to any aspect of employment.  The Company is committed to complying with the American with Disabilities Act, as amended.

The Company recognizes  some individuals with disabilities may require reasonable accommodations.  If you are disabled or become disabled (meaning you have a mental or physical impairment substantially limiting one or more of the major life activities) and you require a reasonable accommodation, you must contact the HR Benefits Coordinator  to begin the interactive process, which will include discussing your disability, limitations, and possible reasonable accommodations that may enable you to perform the functions or your position, make the workplace readily accessible to and usable by you, or otherwise allow you to enjoy equal benefits and privileges of employment.

Of course, if you want a longer, more comprehensive ADA policy, follow the EEOC’s published policy:  POLICY LINK

MY EMPLOYEE JUST TESTED POSITIVE FOR MARIJUANA- I CAN FIRE HER, RIGHT?

FailedDrugTestThe ADA specifically excludes employees who currently use illegal drugs from ADA protection. See 42 U.S.C.§ 12114(A); 29 C.F.R. § 1630.3(a).  Therefore, an employee who illegally uses drugs, either because she is a casual user or because she is an addict, is not protected by the ADA if the employer terminates for that reason.  An employer does not violate the ADA by enforcing its rules and policies prohibiting employees from illegally using drugs.

Therefore, when an employer learns that an employee is illegally using marijuana, the employer may terminate the employee because of the drug use without violating the ADA.   The result would be the same even if the employee also had a covered disability (multiple sclerosis) as long as the employer is acting on the basis of the illegal drug use and not the underlying disability.

Of course, there is a wrinkle! If the employee is using marijuana for a disability under the supervision of a licensed healthcare provider in a state where such use is lawful, the employee will argue there was no “illegal use” of drugs.  So far, all Courts have rejected this this argument.

For instance, in James v. City of Costa Mesa, 700 F.3d 394 (9th Cir. 2012), the court held that marijuana use, even if authorized by state law, was not protected by federal law.  Specifically, the ADA definition of “illegal drug use” refers to federal, rather than state, law and federal law does not authorize even medical marijuana use.   The court held “doctor-recommended marijuana use permitted by a state law, but prohibited by federal law, is an illegal use of drugs for the purposes of the ADA.”

See also, Barber v. Gonzales, 2005 WL 1607189 (E.D. WA. July 1, 2005)

(“[T]he  Court finds [Plaintiff’s] use of marijuana was an ‘illegal use of drugs’ as defined by the ADA, and, thus, the Defendants did not violate the ADA when they took action against [Plaintiff] on the basis of his marijuana use, regardless of whether Washington law allowed such use.   . . .[T]he purpose of the ADA is not expand the scope of permissible drug use, but rather to eliminate the discrimination against individuals with disability who lawfully utilize prescription medicines in connection with their disability.”);

Assenberg v. Anacortes Housing Authority, 268 Fed. Appx. 643 (9th Cir. 2008) (holding housing authority had no duty under the ADA to accommodate tenant’s medical marijuana use); Forest City Residential Management, Inc. v. Beasley, 2014 WL 6861439 (E.D. MI Dec. 3, 2014) (holding no accommodation necessary for medical marijuana under the Fair Housing Act and the Rehabilitation Act, relying on a HUD memorandum).

TAKE THESE THREE STEPS TO ENSURE ADA COMPLIANCE NOW!

NewYearClockWe all have a long list of New Year’s resolutions, e.g., shape up; lose weight; stay organized; save money. HR professionals should add a commitment to ADA compliance to their resolution list.

According to the EEOC statistics, charges of discrimination alleging violations of the ADA have been on a steady rise in the past five years: in FY 2008, the EEOC received approximately 19,000 charges alleging violations of the ADA; in FY 2013 (the last year statistics are available), that number has increased to nearly 26,000 charges.  See: Charge Statistics.  The EEOC has made ADA compliance a priority, so we expect to see charges continue to rise in the next few years.

New-years-2014With this in mind, here are three easy steps to institute to become fully compliant with and ready to handle issues arising under the ADA:

#1 Designate an “ADA Officer/ Coordinator”
Select and fully train a member of your HR and/or Benefits team to handle all ADA accommodations request. Of course, this designated person can have other job responsibilities as well; for instance, your ADA Coordinator may also be responsible for FMLA certifications and tracking.  Importantly, this professional should understand the differences between and nuances of the ADA, the FMLA and any other leave program offered by the employer.

All requests for accommodation due to any medical condition should be directed to your designated officer/ coordinator for consideration and action. An ADA officer/ coordinator will centralize the employer’s response and ensure consistent treatment and application of the ADA.  Most importantly, this designation limits direct supervisors’ knowledge of their supervisees’ medical conditions, in turn limiting an employer’s exposure for discrimination and/or retaliation claims.

#2 Use ADA Accommodations Request Forms, Position Descriptions and Checklists
A written accommodations request form is the single best tool for evaluating an employee’s ADA accommodations request. The form requires employees to briefly explain their disability and accommodation request in their own words. Additionally the form requires the employee’s treating physician to certify the employee’s medical condition;  answer questions to determine whether the medical condition qualifies as a “disability;” review the position description for the job; identify the functions of the job the employee cannot perform without an accommodation; opine as to all reasonable accommodations allowing the employee to perform the functions of the job; state the limits to the accommodation(s); and identify alternative accommodations.

Once completed by the employee and treating physician, the form is submitted to the ADA Officer/ Coordinator (note– failure to complete the form may lead to denial of the accommodation request and proving the employee failed to engage in the interactive process). The form is then used to assist the ADA Officer/ Coordinator with the accommodations analysis (e.g., whether the employee meets the definition of “disabled” under the ADA and ADAAA; whether the accommodations request is reasonable; whether there are other available accommodations; whether the employee is a direct threat to himself or others) and is the best evidence of the employer’s good faith participation in the interactive process. In addition, the use of checklist(s) is further evidence of all steps taken by the employer to accommodate employees. The ADA Officer/ Coordinator must be mindful to keep accurate and complete records of any and all efforts taken to provide accommodations (in whatever form) to employees.

If you are currently not using an ADA Accommodation Request Form, job descriptions and/or checklists as tools to evaluate accommodations requests, please feel free to contact us to obtain our most current version of the forms and checklists—we are happy to share and work with you to develop your system!

#3 Update Handbook and Written Policies
Companies with 15 or more employees should add an ADA policy to their handbook; an ADA policy is as essential as at-will, EEO and an anti-harassment policies.

The ADA requires employers with 15 or more employees engage in the interactive process and provide reasonable accommodations to disabled employees. Likewise, the ADA prohibits discrimination and harassment on the basis of an employee’s actual disability, being regarded as having a disability, or having a record of disability. There is no downside in including a policy in the handbook addressing and affirming the company’s compliance with the ADA and directing employees to submit all requests for accommodation to a designated ADA Officer/ Coordinator. Indeed, such a policy will prove to be valuable in responding to an ADA claim.

In addition to adding an ADA policies, you should also review your handbook to ensure all policies comply with the ADA. The EEOC is targeting companies with “no fault attendance policies” (See my recent blog article). Therefore, if you have such a policy, you must edit it to allow exceptions in the case of disabled employees.

TakeAwayThe Takeaway:
The ADA requires expeditious handling of employees’ requests for accommodation—so be ready to roll in 2015 by updating your procedures, forms, and policies now!

CURBING LEAVE ABUSE DURING THE HOLIDAY SEASON

ornaments1‘Tis the season to be jolly, and for shopping, entertaining, decorating, caroling, cooking, eating and generally enjoying life.  So who can blame employees for getting a little, well, “creative” and taking “liberties” in explaining their need to be away from the office during the holiday season?

As many HR professionals will attest, each December sees a spike in “sick leave” and FMLA and ADA accommodation requests, and not just because it is cold and flu season!  Not only do employees face many tempting distractions, but many employees have accrued sick days which they will lose if they do not use them by December 31st.  So, the first “achoo” or sniffle is reason enough for a sick day . . . or is it?

ABSENT
Take these steps now to combat sick leave, ADA, and FMLA abuse:

Holly10. Establish and Enforce Call-In Procedures

To help reduce the effects of last minute no-shows, employers may draft and enforce company call-in procedures. Does the call-in policy require employees to call in and speak with their supervisor, a member of management, or human resources by a specified time before the shift? If so, ensure employees are following the policy and aren’t circumventing it by leaving voice mails, or worse, sending e-mails.  If an employee does leave a voice mail or send an email to report a sick day, make sure either a manager or HR representative calls him or her as soon as possible to verify the need for leave.

Holly9.  Develop a Script

When an employee calls in sick (or a manager calls the employee to verify the reason for leave), ask questions about the illness and need for leave.  Under the FMLA, the ADA, and the ADAAA, employers have the right to obtain information from employees about why they require leave.
Here are some questions to consider asking employees when they call in sick:

  • What is the reason for the absence?
  • What part of the job can the worker not perform?
  • Will they see a doctor for their illness?
  • Have they taken leave for this condition before?  If so, when?
  • When did the employee first know he or she would need to be absent from work?
  • When will they be able to return to work?

Holly8.  Formalize Your Process

checklistRequire employees to put their leave request, including sick leave request, in writing.  Employees must attest to the reason for the leave and that providing false or misleading information about an absence will result in disciplinary action, up to and including termination.  Once employees understand there will be a paper trail for leaves of absences (and consequences for dishonesty), they will be discouraged from taking leave they don’t need.

Holly7.  Ensure a FMLA Certification or ADA Accommodations Questionnaire Is Fully Completed
A medical certification form is an employer’s primary tool against FMLA abuse, so require employees to certify their FMLA qualifying absence.  Likewise, the ADA/ADAAA permits employers to obtain limited medical information necessary to support a request for accommodation.  This form is vital for assessing whether the employee is “disabled” and various reasonable accommodations.  The employer should insist the forms be fully completed, valid, and support the need for leave.  When a certification has entries missing or is vague or ambiguous, an employer must take action!

In some instances, an HR professional (or leave administrator or management official) may contact the health care provider to ensure that he or she actually prepared the certifications and to clarify the handwriting or meaning of a response.

Holly6.  Doubt the Employee or the Doctor?  Ask for a Second (and Third) Opinion

Employees who have reason to doubt the validity of an initial FMLA certification may ask for a second opinion.  Likewise, under the ADA/ADAAA, an employer may require a fit-for-duty examination if it is job-related and consistent with business necessity.

Holly5.  Check In Periodically

Keeping the lines of communication open can go a long way in preventing leave abuse.  Checking in on employees periodically to see how they’re doing is legal—as long as you don’t ask employees to do any work while they’re out and you don’t harass them about returning to work.

Holly4.  Request Recertification When Needed

The FMLA regulations offer a number of opportunities to seek recertification of the need for FMLA leave.  As a general rule, employers may request recertification no more than every 30 days and only in cases where the employee has actually been absent from work for the FMLAcovered  medical condition.  However, employers may request recertification in less than 30 days if:

  • The employee seeks to extend an existing FMLA leave;
  • Circumstances described in the previous certification have changed significantly;
  •  Information is received that casts doubt on the employee’s stated reason for the absence or the continuing validity of the certification.

Employers can also reevaluate an employee’s need for reasonable accommodations.

Holly3.    Control Scheduling Treatment and Consider Transfers

FMLA regulations require employees taking intermittent leave for treatment, therapy, or doctors’ visits to schedule those absences in a way that least disrupts the employer’s operation.  HR should communicate with the employee about the frequency of treatment, office hours of the health care provider, and ways the employee may be able to alter the schedule to reduce disruptions.

Likewise, if the need for intermittent leave is foreseeable, an employer may transfer the employee during the period of intermittent leave to an available alternative position for which the employee is qualified and better accommodates the reoccurrence of leave or allow an employee to work part time.

Holly2.    Fully Investigate Patterns of Intermittent Leave and Suspicious Circumstances


Where there is a specific pattern of leave, for instance when intermittent leave absences occur exclusively on Fridays and Mondays, employers can and should investigate whether the pattern is consistent with the medical certification and reasonable accommodation.  For instance, an employer can send a copy of the employee’s recent attendance record to the certifying physician to inquire whether the pattern of leave is consistent with the employee’s actual need for medical leave.

Likewise, when an employer receives information that casts doubt on the employee’s stated reason for the absence, this should prompt an investigation.  For instance, an employer may learn an employee on leave is engaging in activities while on leave that are inconsistent with the employee’s health condition.  The example provided in the regulations is an employee playing in the company softball game while on leave for knee surgery.  An employer who receives such information should not rush to judgment and immediately terminate the employee.  Instead, the employer should conduct a thoughtful, thorough, and complete investigation into the facts.

Holly1.  Update Your Policies and Procedures

Now is a good time to audit and update your policies and procedures, particularly your ADA policies and procedures to ensure they are in line and up to date.

GRINCHYou don’t have to be The Grinch to use these tips.  These tips won’t entirely eliminate the problem of employees trying to take advantage of leave—probably nothing can—but they will help.  If you’d like us to review your policies and procedures to help cut down abuse, give us a call.

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.

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!