In its popular HR Quiz, CCH's Human Resources Management experts highlight critical areas that can lead to costly people management missteps. An archive of past HR Quizzes appears below. We suggest that you and your staff review the situations posed in the questions, and consider whether managers and supervisors throughout your organization are prepared to handle similar situations. While intended to provide useful information on the topics covered, HR Quiz should not be construed as legal advice or a legal opinion.
Complying with discrimination protections
Can safety concerns justify withdrawal of job offer from individual with disability? [March 30, 2009]
Issue: Your company has offered Lydia a position as an aircraft mechanic. After receiving the job offer, she is given a physical examination that includes a hearing test. The hearing test reveals that she has hearing loss in her left ear. You are concerned that, in a noisy environment, Lydia will be unable to hear sounds that might alert her to dangers in the work area, such as the presence of moving aircraft or other moving vehicles. Is it okay to withdraw the job offer since she hasn’t started working for your company yet and you believe her hearing impairment may affect her job performance?
Answer: In this instance, the employer may not withdraw the job offer simply because it believes Lydia’s hearing impairment makes it impossible for her to work in a high-noise environment. According to the EEOC, an employer may only withdraw a job offer made to an individual with a disability if it can demonstrate that the applicant is unable to perform the essential functions of the position with or without a reasonable accommodation or would pose a direct threat.
If an employer becomes aware of an applicant's hearing impairment after offering the applicant a job and reasonably believes that the impairment may affect her ability to perform the job's essential functions (i.e., fundamental job duties) or to perform them safely, the EEOC states that an employer may ask the applicant for information to determine whether she can perform the essential functions of the position with or without a reasonable accommodation and whether she would pose a direct threat
(i.e., a significant risk of harm to herself or others that cannot be reduced through reasonable accommodation). In this case, the employer should determine whether Lydia’s hearing impairment would result in a direct threat, and may obtain information that is medically related to her hearing impairment to make that determination.
Also note that the Americans with Disabilities Act Amendments Act of 2008 (ADAAA), which became effective on January 1, 2009, made several significant changes to the Americans with Disabilities Act (ADA), including changes to the definition of the term disability.
The changes are designed to make it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the ADA. The EEOC will be evaluating the impact of these changes on its enforcement guidelines and other publications addressing the ADA.
Source: EEOC Guidance: Questions and Answers about Deafness and Hearing Impairments in the Workplace and the ADA, issued July 26, 2006.
Were transfer and denial of raise result of caregiver bias? [January 5, 2009]
Issue: Rhonda, a CPA at a mid-size accounting firm, mentioned to her boss that she had become the guardian of her niece and nephew, who were coming to live with her, so she would need a few days off to help them settle in. Rhonda’s boss expressed concern that she would be unable to balance her new family responsibilities with her demanding career, and he was worried that Rhonda would suffer from stress and exhaustion. Two weeks later, he moved her from her lead position on three of the firm’s biggest accounts and assigned her to supporting roles handling several smaller accounts. In doing so, the boss told Rhonda that he was transferring her so that she would have more time to spend with her new family,
despite the fact that Rhonda never asked for additional leave and had been completing her work in a timely and satisfactory manner. At the end of the year, for the first time in her seven-year tenure with the firm, Rhonda was denied a pay raise, even though many other workers did receive raises. When she asked for an explanation, she was told she needs to be available to work on bigger accounts if she wants to receive raises. Now Rhonda is in your office, complaining she was discriminated against because she takes care of her niece and nephew. Is there such a thing as caregiver bias?
Answer: Although the federal EEO laws do not prohibit discrimination against caregivers per se, the Equal Employment Opportunity Commission (EEOC) has described circumstances where discrimination against caregivers might constitute unlawful disparate treatment under Title VII of the Civil Rights Act of 1964 or the Americans with Disabilities Act. Caregiver responsibilities encompass not only childcare but also eldercare or caring for individuals with disabilities. While women are still responsible for a disproportionate share of family caregiving responsibilities, men’s role has increased. According to the EEOC, the amount of time men spend on childcare nearly tripled between 1965 and 2003.
In this case, the employer has engaged in unlawful sex discrimination by taking adverse action against a female employee (Rhonda) based on stereotypical assumptions about women with caregiving responsibilities, even if the employer believed that it was acting in the employee's best interest. Of course, adverse actions that are based on sex stereotyping violate Title VII, even if the employer is not acting out of hostility.
Source: EEOC Guidance: Unlawful Disparate Treatment of Workers with Caregiving Responsibilities.
When can employers give preference to Native Americans? [December 8, 2008]
Issue: An employer wishes to take advantage of the Indian Employment Tax Credit (IEC), which provides employers a tax credit for part of the wages paid to Native American employees who are, or whose spouses are, enrolled members of an Indian tribe and who substantially perform all services within an Indian reservation that they live on or near. May the employer inquire into applicants’ Indian tribal membership during the job application process and give preference to applicants based on their Native American national origin?
Answer: Under certain circumstances, employers can. While Title VII prohibits employment discrimination based on race, color, sex, religion and national origin, the statute does not prohibit pre-employment inquiries that directly or indirectly disclose the race, color, religion, sex or national origin of an applicant. Nonetheless, an employer that possesses such information pre-offer and then excludes an individual from employment may be more vulnerable to employment discrimination allegations.
There is a special exemption from Title VII's basic nondiscrimination requirements for businesses on or near Indian reservations. The exemption permits employers, under certain circumstances, to use an employment preference in favor of American Indians. To exercise the protections of this exemption, an employer must meet three conditions:
the employer must be located on or near an Indian reservation;
the employer's preference for Indians must be publicly announced; and
the individual to whom preferential treatment is accorded must be an Indian living on or near a reservation.
Thus, an employer that meets these three conditions may inquire about applicants' status as American Indians during the application process and give a preference to qualified American Indians for employment without running afoul of Title VII.
Source: EEOC Informal Discussion Letter, dated August 19, 2008, released on October 30, 2008 (http://www.eeoc.gov/foia/letters/2008/titlevii_nondiscrimination_aug2008.html ).
Can discharge for taking time off for IVF support sex discrimination claim? [November 3, 2008]
Issue: Cheryl, a secretary at your company, took a four-week leave of absence to undergo in vitro fertilization (IVF) after being diagnosed with infertility. After she returned to work, she informed her boss that she intended to undergo a second IVF procedure because the first one had been unsuccessful. She filed for another leave of absence but was terminated shortly before that leave was scheduled to start. Although her manager told her she was being terminated as a result of the consolidation of two offices, he also told her that her termination was in her best interest due to her “health condition.” Cheryl sued for sex discrimination in violation of Title VII of the Civil Rights Act of 1964. Does she have a valid claim?
Answer: Yes. In a case with similar facts, the Seventh Circuit, in an apparent matter of first impression among the circuits, ruled that a secretary who alleged that she was discharged for taking time off to undergo IVF stated a claim for sex discrimination under Title VII, as amended by the Pregnancy Discrimination Act. While infertility affects both men and women, IVF is a particular form of surgical impregnation performed only on women on account of their childbearing capacity.
“Employees who are discharged for taking time off to undergo IVF- just like those terminated for taking time off to give birth or receive other pregnancy-related care-will always be women,” wrote the federal appeals court. “Thus, contrary to the district court's conclusion, [the secretary] was terminated not for the gender-neutral condition of infertility, but rather for the gender-specific quality of childbearing capacity.” Moreover, the suspicious timing of her discharge, which occurred shortly after a failed IVF procedure and just before she was scheduled to undergo a second attempt, created triable issues of fact.
Cite:Hall v. Nalco Co (7thCir 2008) 2008 US App LEXIS 15106.
Can supervisor’s inability to understand conversation be reason for English-only policy? [October 13, 2008]
Issue: Vivienne has been giving Amy one-on-one training with a new computer program. The women, both French-Canadian, have been speaking French during the training sessions. Judith, the department supervisor, stopped by Amy’s desk to see how training was going and heard the women speaking another language and laughing. She is now in your office, telling you that-while she doesn’t know exactly what they were saying-she knows they were talking about her. She wants a new rule that requires employees to speak English while on company property. Should your company institute an English-only rule?
Answer: In this instance, probably not. According to the EEOC, an English-only rule may be used if it is needed to promote the safe or efficient operation of the employer’s business. Some situations in which business necessity would justify an English-only rule include:
communications with customers, coworkers or supervisors who speak only English;
emergency situations in which workers must speak a common language to promote safety; and
cooperative work assignments in which a common language is needed to promote efficiency.
An employer’s use of an English-only rule should relate to specific circumstances in the workplace. In this instance, Judith wants to implement an English-only policy because she didn’t understand what two employees were saying to each other-not because the employees’ use of French was disrupting or preventing safe or efficient business operations.
Source: EEOC Guidance: “Questions and Answers for Small Employers about National Origin Discrimination.”
Can terminating a reservist for tardiness violate USERRA? [September 2, 2008]
Issue: Ted, a Navy reservist, has repeatedly failed to report for work on time-a job requirement. He received several verbal warnings and, finally, a written warning regarding this performance issue before taking a week off of work to fulfill his Navy reserve obligations. Two days after returning to work, Ted was fired for continually failing to report to work on time. Was his termination a violation of the Uniformed Services Employment and Reemployment Act (USERRA)?
Answer: No. Ted’s employer can avoid liability for discrimination under USERRA by proving that Ted’s termination was due to his tardiness rather than his reserve obligations. Ted’s employer will have to prove that it would have taken the same action regardless of his connection with the uniformed services.
An employer has violated USERRA if an employee’s or applicant’s past, present or future connection with the uniformed services is merely a motivating factor in an employer’s adverse employment action against the employee/applicant. Note that an employer is legally responsible for discrimination if the employee/applicant’s military service connection is just one of two or more reasons for its challenged action, unless the employer proves that any reason other than the service connection would have been sufficient to justify its action. Put another way, to avoid liability, the employer must prove that a reason other than the employee’s or applicant’s military status would have been sufficient to justify its action.
Source: CCH When Duty Calls: Military Leave and Veterans’ Rights.
Accommodating employees with post-traumatic stress disorder [August 25, 2008]
Issue: One of your employees, who recently returned from a military leave of absence, has revealed to you that he is suffering from post-traumatic stress disorder (PTSD). You’d like to provide some accommodations to help him be successful at work. What can you do?
Answer: Transitioning service members and veterans experiencing the effects of PTSD may face day-to-day difficulties-particularly in the workplace. However, employers can play a vital role in their recovery by recognizing the challenges associated with PTSD and making reasonable accommodations.
Not all people with PTSD will need accommodations to perform their jobs, and many others may only need a few accommodations. The following is just a small sample of ideas to accommodate PTSD. For additional ideas, visit http://www.americasheroesatwork.gov .
Source:Accommodating Employees with Post-Traumatic Stress Disorder, Fact Sheet, Office of Disability Enforcement Policy, posted August 2008.
Is disability accommodation required absent an individual’s request? [August 4, 2008]
Issue: Your organization recently hired a pharmacy assistant whose movements and speech are noticeably slow due to cerebral palsy. The individual has two years of experience with another local pharmacy where he received prescriptions and dispensed prescription drugs without incident. But the individual’s supervisor is displeased with his performance, believing that the individual is too slow and appears to have difficulty matching customers’ names with their prescriptions. Given that the individual has never asked for an accommodation of his disability, can the individual be transferred to another department without engaging in an interactive accommodation process?
Answer: No. Although it is generally the responsibility of an individual with a disability to inform the employer that an accommodation is needed, the Second Circuit carved out an exception to the rule for an obvious disability. According to the court, the Americans with Disabilities Act’s statutory and regulatory language requires accommodation of known
disabilities, not just disabilities for which accommodation has been requested. Thus, an employer has a duty to reasonably accommodate an employee’s disability if the employer knows or reasonably should have known that the employee is disabled.
Cite:Brady v. Wal-Mart Stores, Inc (2dCir 2008) 13 ADD ¶13-129.
Providing leave as a reasonable accommodation [July 21, 2008]
Issue: Joanne has a degenerative eye condition. Over time, she has lost most of her vision and has decided to start using a guide dog. Training the guide dog will require her to attend a six-week residential program. Your company provides a total of three weeks of leave (sick and annual leave) per employee each year. Are you required to provide her enough leave time for the entire six-week period?
Answer: Yes, as long as providing the leave does not create an undue hardship for the employer. The Americans with Disabilities Act of 1990 (ADA) prohibits employers from discriminating against a qualified applicant or employee because of a disability in any aspect of employment. Under the ADA, employers are required to provide reasonable accommodations to the known physical or mental limitations of persons with disabilities. An accommodation is any modification or adjustment to a job or work environment that will permit a qualified individual with a disability to apply for a job, to perform a job's essential functions (i.e., fundamental duties), or to enjoy equal benefits and privileges of employment.
Generally, an individual with a disability must request a reasonable accommodation before an employer will have an obligation to provide one. Once an accommodation has been requested, an employer should engage in an interactive process to determine whether an individual has a disability that requires an accommodation and, if so, must make a reasonable effort to determine the appropriate accommodation. Accommodations vary depending on the needs of the person with the disability. In this instance, even though the six weeks of leave that are needed exceed the amount of leave provided to each employee, the employer must provide additional unpaid leave as a reasonable accommodation, absent undue hardship. The same rule would apply if the employee needs time off for treatment related to a visual disability.
Source: EEOC Guidance: Questions and Answers on Blindness and Vision Impairments and the ADA.
Do safety concerns justify questioning an employee about her diabetes? [May 19, 2008]
Issue: Rose, the owner of a daycare center, knows that one of her teachers, Denise, has diabetes. Rose becomes concerned that Denise might lapse into a coma when she sees Denise eat a piece of cake at a child's birthday celebration in the classroom. Can Rose ask Denise about her diabetes?
Answer: In this instance, asking the employee questions about her diabetes would violate the Americans with Disabilities Act. An employer may ask an employee about his or her diabetes when it has a reason to believe that the employee may pose a direct threat
to the employee or others. However, the employer should make sure that its safety concerns are based on objective evidence and not general assumptions.
Although many people believe that individuals with diabetes should never eat sugar or sweets, this is a myth. In this situation, the owner cannot ask the teacher any questions about her diabetes because she does not have a reasonable belief, based on objective evidence, that the teacher is posing a direct threat to the safety of herself or others.
Source: EEOC Fact Sheet: Questions and Answers about Diabetes in the Workplace and the Americans with Disabilities Act.
Avoid speculation about reasonable job accommodations during application process [May 12, 2008]
Issue: You are impressed with Andy’s resume and contact him to come in for an interview. Andy, who is deaf, requests a sign language interpreter for the interview, leading you to believe that you’ll have to provide a full-time interpreter if you hire Andy. Can you cancel the interview and refuse to further consider Andy for the position?
Answer: No. Even if an employer believes that it will be unable to provide an applicant with a reasonable accommodation on the job, the employer must provide a reasonable accommodation to a qualified applicant with a disability unless it can show undue hardship.
Individuals with disabilities who meet initial requirements to be considered for a job should not be excluded from the application process because the employer speculates, based on a request for reasonable accommodation for the application process, that it will be unable to provide the individual with reasonable accommodation to perform the job. In many instances, employers will be unable to determine whether an individual needs reasonable accommodation to perform a job based solely on a request for accommodation during the application process. And even if an individual will need reasonable accommodation to perform the job, it may not be the same type or degree of accommodation that is needed for the application process. Employers should assess the need for accommodations for the application process separately from those that may be needed to perform the job.
You should proceed with the interview, using a sign language interpreter (absent undue hardship) and, at the interview, inquire to what extent Andy would need a sign language interpreter to perform any essential functions requiring communication with other people.
Source:EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, Question 13, October 17, 2002; reproduced at Human Resources Management Equal Employment Opportunity
¶10,115.
May employers give hiring preferences to veterans with service-connected disabilities? [April 28, 2008]
Issue: Geoff, the manager of your service department, has been interviewing individuals to fill a vacant position. At a meeting discussing the final applicants, he says he wants to hire a former Marine who lost his arm while serving in Iraq. You’re wondering, is it okay to give preference to this individual without violating the Americans with Disabilities Act?
Answer: Yes. While the Americans with Disabilities Act (ADA) prohibits discrimination against a qualified individual with a disability because of the disability of such individual,
the ADA neither prohibits nor requires affirmative action on behalf of individuals with disabilities. An employer may, but is not required to, hire a qualified individual with a disability (including a veteran with a service-connected disability) over a qualified applicant without a disability.
There are specific rules and regulations that govern the hiring of veterans by federal employers. Federal agencies are allowed to use special hiring authorities
to hire individuals with disabilities outside the normal competitive hiring process, and sometimes are even required to giver preferential treatment to veterans, including disabled veterans, in making hiring, promotion or other employment decisions. The U.S. Office of Personnel Management has a question and answer guide covering such employment decisions.
Even where employers do not specifically recruit veterans with service-connected disabilities, they should make sure that there is nothing in a job announcement or on an application form that would discourage anyone with a disability from applying. For example, employers should not state in vacancy announcements that applicants must be in excellent health
or describe how a function must be performed (e.g., requires extended standing
) but, instead, should describe the actual function to be performed (e.g., requires frequent lifting of objects that weight more than 50 pounds
). Often, reasonable accommodations are available that will allow a veteran with a service-connected disability to perform a function in a way that is different from the way it is typically done.
Source:EEOC Questions and Answer Guide: Employer’s Guide: Veterans with Service-Connected Disabilities in the Workplace, reported in the CCH Employment Practices Guide
, New Developments ¶5268.
Can an employer require a diabetic employee to take a medical examination? [February 4, 2008]
Issue: Martina, a hospital administrator, has learned that Parker, staff anesthesiologist, has diabetes and has been using an insulin pump for the past year. There have been no incidents indicating a performance problem but she wants to send Parker to a fitness-for-duty examination to ensure that his blood sugar can be maintained properly during lengthy surgeries and that he does not pose any safety risk in the operating room. Under the law, can she do this?
Answer: In this instance, requiring a fitness-for-duty examination would violate the Americans with Disabilities Act (ADA) because there is no evidence that the anesthesiologist was unable to perform his job or posed a direct threat due to his diabetes and use of insulin.
Under the ADA, an employer may require an employee to take a medical examination if the employer has a reasonable belief that the employee may be unable to perform the essential functions of the job or may pose a direct threat due to a medical condition. The reason for this rule is that once an applicant has been hired and begins work, performance is generally the best measure of ability to work. However, an employer may make disability-related inquiries or require a medical examination if the employer has a reasonable basis (i.e., evidence of current performance problems, observable evidence, or individualized medical information) for believing that the employee may be unable to perform the essential functions of the job or may pose a direct threat due to a medical condition.
Source:EEOC Questions & Answers on Applying ADA Employment Rules in Health Care Jobs, reported in the CCH Accommodating Disabilities Business Management Guide, New Developments ¶90,071.
Heightened job requirements may violate ADA [November 12, 2007]
Issue: Patty is a certified nursing assistant with an intellectual disability (mental retardation) who has a full scale I.Q. of 66. She has been successfully performing her job at a nursing home for five years. Recently, the owner decided to impose a high school education or G.E.D. requirement for Patty’s job. She did not finish high school due to her disability and has tried several times (unsuccessfully) to obtain her G.E.D. If you remove her from her job, will you violate the Americans with Disabilities Act?
Answer: Yes. In this instance, the owner’s requirement for a high school education or a G.E.D. is not job-related and consistent with business necessity, as shown by the fact that Patty has successfully done the job for five years without meeting the newly imposed requirement. Patty’s success shows that the requirement does not accurately predict her ability to perform the job’s essential functions.
To be qualified to perform a job under the Americans with Disabilities Act (ADA), an individual must satisfy the requisite skill, experience, education and other job-related requirements of the position, and must be able to perform the job’s essential functions with or without a reasonable accommodation. Essential functions are the basic job duties that an employee must be able to perform, based on factors such as the reason the position exists, the number of other employees available to perform the function, and the degree of expertise or skill required to perform the function.
If a job requirement excludes a worker from a position due to a disability, the requirement must be job-related and consistent with business necessity. Some requirements will obviously meet this standard, while others may require an employer to consider whether the standard accurately predicts the individual’s ability to perform the job’s essential functions.
An employer’s judgment and a written job description are considered evidence of essential functions, though they are not dispositive. Other evidence includes the actual work experience of present or past employees in the job, the time spent performing a function, and the terms of a collective bargaining agreement. Determining whether a job duty is an essential function is a fact-specific inquiry.
Source: EEOC Fact Sheet: Questions & Answers on Applying ADA Employment Rules in Health Care Jobs.
Can employers indicate a preference for older workers in job ads? [August 13, 2007]
Issue: In an effort to recruit older workers for your company’s customer service unit, you submitted several help-wanted advertisements to local newspapers. Your ad copy said Individuals over age 55 encouraged to apply.
To your surprise, two of the newspapers refused to publish your ad, saying that they were concerned the ads might be unlawful. Are they?
Answer: Not under federal law. According to an informal discussion letter issued by the U.S. Equal Employment Opportunity Commission (EEOC), the Age Discrimination in Employment Act (ADEA) permits employers to advertise a preference for older workers. Previously, EEOC regulations stated that such advertisements were unlawful but, in 2004, the U.S. Supreme Court ruled in General Dynamics Land Systems, Inc. v. Cline that the ADEA only prohibits discrimination based on relatively older age and that employers do not violate the ADEA by favoring older workers over younger workers.
In July 2007, the EEOC amended its regulations to conform to Cline. The regulations now state: Employers may post help wanted notices or advertisements expressing a preference for older individuals with terms such as over 60, retirees, or supplement your pension.
Note, however, that while the ADEA does not prohibit employers from advertising for older workers, such advertisements may be prohibited by state or local law.
Source:ADEA: Job Advertisements Seeking Older Workers, issued July 11, 2007 by the U.S. Equal Employment Opportunity Commission.
May employers test current employees for tuberculosis without violating the ADA? [July 9, 2007]
Issue: Recent news stories about an individual with tuberculosis (TB) have made you wonder about the possibility of the disease being spread among employees in your medical office. You want to test your current employees for TB following the recommendations of the Centers for Disease Control and Prevention (CDC) guidelines, but can you do so without violating the Americans with Disabilities Act (ADA)?
Answer: Yes, employers may test current employees for TB according to the CDC’s Guidelines for Preventing the Transmission of Mycobacterium Tuberculosis in Health-Care Settings, 2005 without violating the ADA. The CDC guidelines recommend instituting particular types and duration of TB screening programs for current health care workers in those settings where a threshold level of risk is indicated pursuant to CDC risk assessment standards. The guidelines set forth objective measurements based on the number of TB patients treated in the preceding year and other non-speculative risk factors to determine when testing of current employees is recommended. Therefore, testing under the guidelines will only occur where the employer has a reasonable belief, based on objective evidence, that the employees designated for testing may pose a significant risk of substantial harm to themselves or others.
Source: EEOC fact sheet: Questions & Answers about Health Care Workers and the Americans with Disabilities Act,
reported in Employment Practices Guide, New Developments ¶5231. The CDC’s guidelines can be found at http://www.cdc.gov/mmwr/preview/mmwrhtml/rr5417a1.htm .
Early departure to care for son with disability implicates ADA, FMLA concerns [April 30, 2007]
Issue: Mary Jane is the mother of a six-year-old son who has a disability. After losing her daycare, Mary Jane has started to leave work early to care for her son. Can Mary Jane be disciplined for missing work?
Answer: Two federal laws come into play in this situation: the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA).
ADA. Even though Mary Jane is not herself disabled, the ADA protects people who associate with individuals with disabilities. Thus, her son’s disability can not be the basis for treating Mary Jane any differently than any other employee. For example, if other employees are allowed to occasionally leave work early when they have lost their daycare, Mary Jane should be extended the same privilege. It would be wrong to discipline Mary Jane prematurely based on the assumption that it will take her longer to find a qualified daycare provider. However, the ADA does not require an employer to provide reasonable accommodation for a person who associates with an individual with a disability. The ADA would not require an employer to modify its leave policy for an employee who needs time off to care for a child with a disability; the law only requires that the leave policy be enforced in a uniform manner.
FMLA. The FMLA grants an eligible employee a right to 12 weeks of job-protected, unpaid leave from work to care for a child with a serious health condition. Not all ADA disabilities are FMLA serious health conditions, and not all FMLA serious health conditions are ADA disabilities. Under the ADA, a disability is an impairment that substantially limits one or more major life activities. Under the FMLA, a serious health condition is an illness, injury, impairment, or physical or mental condition that involves either inpatient care or continuing treatment by a health care provider.
Employees are eligible for FMLA leave if: (1) they have worked for an employer that employs 50 or more workers within 75 miles of the employee’s worksite, (2) they have worked for that employer for at least 12 months before the start of the leave, and (3) they have worked at least 1,250 hours during that time. If the employee has already taken FMLA leave, the employee must have leave time remaining.
When medically necessary, FMLA leave can be taken intermittently (a little at a time) or on a reduced schedule.
Consider state laws. State laws may grant greater rights. Before taking adverse action, Mary Jane’s employer should consult applicable state laws.
Did English-only policy violate Title VII? [March 26, 2007]
Issue: One month after you hired Anna, a bilingual woman of Cuban descent, to fill an administrative assistant position, your company adopted an English-only policy. The policy provides that no Spanish will be spoken in the main office unless a customer does not speak or understand English. Anyone heard speaking Spanish in the office is subject to discharge. The policy does not restrict employees from speaking Spanish outside of the main office during breaks. All employees working for your company speak English and some, but not all, speak Spanish. Anna refused to sign the memorandum indicating that she understood the policy. After being discharged for tardiness and absenteeism, she files suit, alleging that the policy discriminated against her in violation of Title VII. She does not claim that she was discharged for refusing to adhere to the policy; instead she argues that the policy discriminated against her based on her national origin because it restricted her ability to speak in her native language. Will she be successful?
Answer: No. In a case with similar facts, a federal trial court in New York ruled that an employee failed to show that the employer’s English-only policy discriminated against her based on her national origin. The court, citing the EEOC’s Guidance on National Origin Discrimination noted, an employer may have a rule requiring that employees speak only in English at certain times where the employer can show that the rule is justified by business necessity.
In reaching its conclusion, the court assumed that the employee established that the company’s policy restricted bilingual employees from speaking Spanish at certain times. It was then up to the employer to show that the policy was justified by business necessity.
Business necessity. The court concluded that the employer had a business necessity for maintaining the policy because it was vital
to the business. The company operated a dispatch center, which handled calls from customers and provided communication to drivers relaying pickup information. The English-only policy was necessary to avoid instances of miscommunication, particularly between taxi dispatchers and drivers. Requiring employees to converse in English in the main office, except when the needs of customers dictated otherwise, served an essential business purpose by making sure communications were not misunderstood. This was not a case, the court noted, in which an English-only policy was applied to employees who spoke no English or whose ability to speak English was limited.
Moreover, while the employee objected to the policy, she failed to suggest that any alternative policy and practice would satisfy the business necessity of avoiding miscommunications,
explained the court. The employee sought the right to speak Spanish as a matter of preference,
the court stated, but she never alleged any inability to speak English, and, therefore, was not unduly burdened by the limited policy.
Cite:Gonzalo v. All Island Transp. (EDNY 2007) 89 EPD ¶42,736.
Asking for medical documentation during an employee’s cancer treatment [January 22, 2007]
Issue: Amy is a reporter who has been on leave for eight months receiving experimental treatment for non-aggressive lung cancer. She has notified your office that she will be ready to return to work in two weeks but will need to continue her treatment for four more months. Her job requires frequent, short-notice travel and you want more than her word that she’s physically able to return to work. Can you ask for a doctor’s note without violating the Americans with Disabilities Act?
Answer: Yes. According to the EEOC, an employer may ask for medical information if the employer believes that an employee may be unable to perform her job or may pose a direct threat to herself or others. However, an employer may obtain only the information needed to make an assessment of the employee’s present ability to perform her job and to do so safely. In Amy’s case, because her job as a reporter frequently requires her to travel nationally and internationally on short notice, her employer may ask her to provide a doctor’s note or other documentation indicating whether she can travel during the next four months and, if so, how long she can be away.
Source: EEOC Fact Sheet: Questions and Answers on Cancer in the Workplace and the ADA,
reported in Accommodating Disabilities Business Management Guide, New Developments at ¶90,060.
Did pre-employment strength test unlawfully impact female employees? [January 2, 2007]
Issue: To reduce injury rates at one of its plants, your company instituted a pre-employment strength test called a Work Tolerance Screen (WTS) to evaluate potential employees. The test requires job applicants to lift and carry a 35-pound bar between two frames. Since your company started using the test, you’ve noticed that the percentage of women who pass has decreased every year. Overall, only 38 percent of female applicants have passed the WTS. On the other hand, nearly 97 percent of male applicants have passed. Moreover, in the three years before the WTS was introduced, 46 percent of new hires were women. However, that number dropped to 15 percent after the WTS was implemented. The good news is that both overall injuries and strength-related injuries among the workers has declined.
You have just learned that the Equal Employment Opportunity Commission has filed a sex discrimination lawsuit on behalf of a class of female applicants who applied for entry level positions with your company but were denied employment after taking and failing to pass the strength test. Will the EEOC prevail?
Answer: Yes. Based on very similar facts, the Eighth Circuit, affirming an almost $3.4 million verdict in a Title VII action brought by the EEOC, ruled that an employer’s use of a pre-employment strength test had an unlawful disparate impact on female job applicants. In addition, the court found that there was sufficient evidence for the jury to conclude that the employer had engaged in a pattern-or-practice of intentional sex bias through its use of the test.
The court noted that after the test was implemented, the disparity between the hiring of women and men was nearly ten standard deviations. Despite knowing about that disparity, the employer continued to use the test. Although the employer argued that the EEOC’s statistical evidence was inapplicable because women and men are not similarly situated and have profound physiological differences, there was evidence that women and men worked in the same job together for many years before the strength test was adopted. In addition, the evidence also revealed that women and men received similar comments on their test forms, but only the men received offers of employment.
The employer also argued that because the test was used to reduce injury rates and was content and criterion valid under the EEOC’s Uniform Guidelines on Employee Selection Procedures, which govern pre-employment testing, the test did not have a disparate impact on women. Rejecting that argument, the Eighth Circuit noted that the trial court was swayed by the EEOC’s expert witness who stated that the WTS was more difficult than the job itself. Moreover, the evidence established that plant injuries started decreasing before the test was adopted due to other measures the employer had implemented several years earlier. And, the court pointed out, the injury rate for female employees was lower than the injury rate for males in two of the three years before the test was implemented. Thus, the court concluded, the employer failed to show a business necessity for the test.
Cite:EEOC v. Dial Corp (8thCir 2006) 88 EPD ¶42,600.
Can you ask a poor-performing employee with an intellectual disability if he’s changed his medication? [October 30, 2006]
Issue: One of your office clerks, Joey, has an intellectual disability and Attention Deficit Disorder. He’s worked for your company for five years and has performed his job successfully. Recently, he has begun showing up for work late and appears anxious and emotional. His supervisor tells you the changes started happening after Joey moved into his brother’s house. The supervisor wants to know if he can ask Joey if his change in work habits is due to a change of medication.
Answer: No. Poor job performance may be unrelated to an employee’s intellectual disability and should generally be dealt with according to an employer’s existing quality performance policy. According to the EEOC, medical information can only be sought when an employer has a reasonable belief, based on objective evidence, that a medical condition may be the cause of the employee’s performance problems. Joey’s supervisor can ask why his performance has declined and may explore ways to improve his performance but may not ask Joey questions about his intellectual disability unless there is objective evidence that Joey’s poor performance is related to his disability.
Source: EEOC fact sheet: Questions and Answers about Persons with Intellectual Disabilities in the Workplace and the Americans with Disabilities Act.
Offering later Sunday shift not a reasonable accommodation for religious practice [June 19, 2006]
Issue: When hired, one of your organization’s employees informed his supervisor and the store manager that he would not be able to work on Sundays because of his religious convictions, making it clear that if he could not have Sundays off, he would not be able to work for the organization. He stressed he was willing, however, to work any other day at any other time. The hiring supervisor agreed and did not schedule the employee to work Sundays. This scheduling continued, through several supervisors, until shortly after a new store manager was hired.
Seeking an explanation why he could not work on Sundays, the new manager questioned the employee about his unavailability for Sunday work and informed him that he needed to be fully flexible; if he could not work Sundays, he could not work at that store. Although he consistently maintained that his religious convictions prevented him from working at all on Sundays, he was put on the Sunday work schedule. He called in on Sunday and reiterated he would not be there for religious reasons.
He was called into the store manager's office and after he explained that he could not work Sundays for religious reasons, she insisted his Sunday absences could not continue. If he needed to attend church on Sundays, the manager said he could work a later shift, but he declined the offer reiterating that his religious practice required him to not work at all Sundays. She then offered part-time employment with no benefits and no guarantee of hours, which the employee declined, saying he needed to work full time and receive benefits. He asked his manager not to make him choose between his religion and his job. Nonetheless, he was scheduled to work the following Sunday and, after he explained that he would be unable to do so for religious reasons, he was terminated a short time later for unexcused absences. When he sued claiming religious discrimination, your organization’s defense was that offering him a later Sunday shift was a reasonable accommodation for his religious practices. Is it?
Answer: No, on similar facts, a federal appeals court found that, under these circumstances, the employer's offer to schedule the employee to work in the afternoons or evenings on Sundays, thereby giving him a chance to attend religious services, was not a reasonable accommodation. The employee presented evidence of numerous occasions where he made clear to supervisory personnel that his religious convictions prevented him from working at all on Sundays. During his final meetings with the store manager, the employee emphasized that he could not work on Sundays because of his religious convictions.
The employer first argued that the employee did not hold a bona fide religious belief that conflicted with a requirement of employment, but the court disagreed. Additionally, the manager offered what she thought were alternatives to accommodate his religious beliefs as she understood them, noted the court. However, the offer of a later shift was no accommodation because it would not permit the employee to observe his religious requirement to abstain from work totally (court's emphasis) on Sundays. The employer's offer could not be considered reasonable because it did not eliminate the conflict between the employment requirement and the employee's religious practice of not working on Sundays.
Although the court found the offer of a shift change inadequate as an accommodation, it did not rule on whether or not the employer's offer of part-time employment or allowing the exchange of shifts with other employees would constitute reasonable accommodations. Those were left for the district court to consider. The court did say that an offer of accommodation may be unreasonable if it causes an employee to suffer an inexplicable diminution in his employee status or benefits
or if it imposes a significant work-related burden on the employee without justification.
Source: Baker v The Home Depot, 2ndCir, 87 EPD ¶42,325.
Denial of Affinity Group status to religious group did not violate Title VII [February 20, 2006]
Issue: Several years ago, your organization developed an employer-sponsored diversity initiative recognizing employee groups, known as Affinity Groups,
organized on the basis of a common social identity. According to your guidelines, Affinity Groups are eligible to receive company resources, including using facilities/equipment for group activities and even funding to support the group's mission. In order to receive Affinity Group status, however, your organization must approve the proposed group's request for registration. Among other things, your guidelines prohibit conferring Affinity Group status on any group that promotes or advocates a religious position. Even so, one of your employees applied for recognition of a Christian Employee Network as an Affinity Group, suggesting it would be interdenominational and would not promote a particular church or religious denomination. You deny the application because the guidelines preclude groups that promote or advocate religious positions. The employee sues, alleging that your organization discriminated against him on the basis of his religion when it denied his request for Affinity Group recognition. Is he successful?
Answer: No. On similar facts, an employer's decision to decline Affinity Group status to an employee's proposed Christian Employee Network was not impermissible religious discrimination. Because the employer treated all groups with religious positions equally - it exclude[d] them all from serving as the basis of a company-recognized Affinity Group,
noted the federal appellate court - there was no impermissible religious discrimination under Title VII.
At the time of the employee’s application, the employer recognized nine Affinity Groups: people with disabilities; persons of African ancestry; gay and lesbian persons; North American women; Hispanic; Asian Indian; Chinese; Mid-East/South-East Asian; and Veterans.
The employee argued that the refusal to grant Affinity Group status to any group promoting or advocating a religious position meant that the employer treated nonreligious
employees more favorably than religious employees. Nonetheless, the employer had never recognized an Affinity Group based on any religion position, even one of religious indifference or opposition to religion,
which the employee acknowledged. In fact, the guidelines precluded recognition of Affinity Groups based on agnosticism, atheism, and secular humanism,
or in the employee's terms, a group organized on the basis of nonreligion.
Despite the fact that the employer recognized Affinity Groups based on race, color, sex, and national origin (the other categories protected by applicable law), that did not necessarily mean that the employer's exclusion of all groups based on religious positions violated discrimination law. There was no legal authority for the employee’s argument that courts should use cross-categorical comparisons when evaluating discrimination claims.
The point of the discrimination laws is avoiding discrimination or disparate treatment. Here, the guidelines treated employees with all religious positions identically: any employee with any religious position may join any of the recognized Affinity Groups, but the company will not recognize as an Affinity Group a group organized on the basis of a religious position.
As a result, no unlawful discrimination was found.
Source:Moranski v General Motors Corp, 7thCir, 87 EPD ¶42,192.
Can an employer ask questions about an employee’s vision impairment? [February 6, 2006]
Issue: Travis, a data entry clerk, has recently been making numerous errors when entering information into the computer system. For example, he seems to be confusing 1, 7, and 9. You’ve noticed him rubbing his eyes frequently and looking more closely at both his computer screen and the printed materials. You suspect his performance problems could be health-related. Is it ok to ask if he’s got a medical problem?
Answer: In this instance, yes. You have a reasonable belief that Travis’ performance problems are related to a medical condition (i.e., an eye problem). The Americans with Disabilities Act strictly limits the circumstances under which an employer may ask questions about an employee’s medical condition or require the employee to undergo a medical examination. Generally, however, an employer may ask an employee for medical information if the employer has a reason to believe that (1) there is a medical explanation for some change in the employee’s job performance; or (2) the employee’s medical condition may pose a direct threat to safety.
You must keep in mind that poor job performance is often unrelated to a medical condition and, therefore, should generally be handled in accordance with an employer’s existing policies concerning performance.
Source: EEOC Guidance: Questions and Answers on Blindness and Vision Impairments and the ADA,
reported in CCH Accommodating Disabilities Business Management Guide
at ¶90,062.
Discriminatory failure to reinstate under the Americans with Disabilities Act [January 9, 2006]
Issue: Three months after Joe was hired for a service technician position with your company, you learn through a detailed criminal history report that he was arrested 15 years earlier for attempted murder and was found not guilty by reason of insanity. After further investigation, you learn that Joe was committed to and spent two and one-half years in a mental hospital and six months in a board-and-care mental health facility before being released from parole. After he was paroled, Joe changed his name. On top of all that, Joe was convicted for misdemeanor battery on a police officer. Because Joe’s job as a service technician includes unsupervised, in-home telephone installation or repair work, you are understandably very concerned.
On his employment application, Joe checked NO
in answer to the question, Have you ever been convicted of, or are you awaiting trial for a felony or misdemeanor?
The decision is made to terminate Joe. He is notified that he has been discharged due to the fraudulent entries on his application and for attempting to withhold information concerning his past in direct violation of your company’s Code of Conduct. Joe filed a grievance but was denied reinstatement. He then sues for unlawful termination of employment and unlawful refusal to reinstate in violation of the Americans with Disabilities Act based on allegations that your company both terminated and refused to reinstate him because it regarded him as mentally disabled. Can he be successful in his claim?
Answer: Yes. Under similar facts, a federal appeals court agreed with a jury verdict that an employer violated the ADA when it refused to reinstate an employee because it regarded him as mentally disabled. Although the jury ruled that terminating the employee itself was not discrimination, the court recognized a separate claim under the ADA of discriminatory failure to reinstate.
Future acts of violence. How did the jury reach its verdict? The employee argued his employer regarded him as suffering from a mental illness that might result in future acts of violence. During the grievance proceeding, the employer argued that the employee had been terminated because of his failure to disclose his misdemeanor conviction and name change. In the trial, however, the employee introduced evidence that a manager expressed concerns during the grievance proceedings about employing someone with the employee’s background
to work in people's homes because he might go off
on a customer. And when a union representative suggested that the employee be given a job that didn't involve customer contact, the manager replied that people can still walk by,
and that under the advisement of legal, . . . they were not going to bring someone like that back . . . they had an image to uphold.
Additional evidence showed that during the grievance proceedings the employer discussed newspaper articles from the employee’s past, including statements that the employee was a mentally disordered offender
who had been under psychiatric care. Further, the employer had access to the employee’s autobiography, which detailed his mental instability before his stay in the mental hospital. Consequently, the court found that the jury had plenty of evidence to support its finding that the employer regarded the employee as having a mental impairment.
Substantially limited in ability to work. The jury also found that the employer regarded the employee’s mental disorder as substantially limiting his ability to work in a broad range of jobs. Under the ADA, when the major life activity
that is substantially limited
is working, the employee must be regarded as unable to work in a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities.
Statements by the employee’s supervisor that the employer wanted to eliminate the possibility
of employing someone such as the employee, that the employer considered him unfit for any job with the company, and, that if he was given a different job without customer contact people can still walk by,
amply supported the jury's finding that the employer viewed the employee as having a mental disability that substantially limited him in the major life activity of working.
Qualifications. Finally, although the employer also argued that the employee’s past violent acts made him unqualified for the position of service technician, the employee’s supervisor stated that the employee was performing well on the job and that he was considered a potential asset to the company. Additionally, the employee had ten years of experience performing a similar job with another company. Moreover, the employer introduced no evidence of written company policy prohibiting employment of persons who had committed past violent acts. In fact, the employer had reinstated one service technician who had a felony domestic violence conviction.
Although the jury was instructed that an employer may take into account a past history of violence in making employment-related hiring decisions, it nonetheless determined that the employee was qualified for the position. Agreeing, the court concluded that the evidence simply did not require a conclusion that, in the eyes of the employer, the employee was not qualified for the service technician position because of his past violent acts.
Source: Josephs v Pacific Bell (9thCir 2005) 2005 U.S. App. LEXIS 28737.
Granting numerous military leaves can’t rebut military status discrimination claim [December 19, 2005]
Issue: One of your employees has been terminated for abusing sick leave, and he has sued the company for discrimination based on military status. In your investigation of the circumstances surrounding the termination, you discover that the employee’s manager fired him because he had taken accrued paid sick/emergency leave while he was actually on military leave. Believing that the employee had committed a serious policy violation
by requesting sick leave, the manager characterized the leave as a scheme to rob the company of a financial benefit.
Your company, however, has a category of leave entitled Sick Pay/Bereavement/Jury Duty/Emergencies
under which an employee has the right to take accrued sick and vacation leave while on military leave. You feel confident, however, that any showing of discriminatory motive will be negated by the fact that the company had granted numerous military leaves – 15 in fact – over the last three years. Is your confidence warranted?
Answer: No. On facts like these, a federal appellate court found sufficient evidence of discriminatory motive to let a military status discrimination case go to a jury. It found that the employee had asserted numerous facts which could serve as evidence of the employer's unlawful motive.
Close proximity between military service and adverse actions. Unlawful discrimination on the basis of military service could reasonably be inferred based on the proximity in time between his military service and the employer's numerous adverse employment actions, said the court:
In the first instance, on the day he returned from one military leave, he was transferred into a less desirable position, with fewer opportunities for earning bonuses based on individual performance.
While the employee was on leave, his supervisor made a phone call to the employee's sergeant inquiring whether he was present and whether his presence on base was imperative.
In fact, the employer made two such calls.
The supervisor also traveled to the base while the employee was on military leave to discuss performance issues.
He was suspended the day he returned from a subsequent three-day military leave, and then discharged several days later.
There were also inconsistencies in the manager’s belief that the employee violated company policy by requesting emergency and vacation leave while on military leave. Human resources policy allowed employees to take accrued emergency leave while on military leave; moreover, a supervisor did not have the authority, under any circumstance, to refuse a request for the leave. The company found itself in the awkward position of trying to explain that all managers were aware of such a policy yet one had acted in direct opposition to it.
Granting numerous leaves didn’t counteract discriminatory motive. Nor did the fact that the company had granted the employee 15 military leaves of absence in three years negate a showing of a discriminatory motive. Indeed, the appeals court suggested that a jury could infer that because it had granted the leaves, many of which were last minute,
the company was looking for a reason to discharge the employee because of the large number of absences from work due to his reserve status. Finally, because USERRA, the law protecting veteran’s leave rights, was enacted to protect the rights of veterans and members of the uniformed services, it must be liberally construed in favor of those who served their country, reasoned the court.
Source:Maxfield v Cintas Corp No 2,(8thCir 2005) 151 LC ¶10,562.
May an employer ask any follow-up questions if a job applicant reveals he has or had cancer? [October 3, 2005]
Issue: You’ve been interviewing candidates for an open position for which the posting indicated that the person hired will work from 2:00 p.m. until 10:00 p.m. During an interview, an applicant mentions that the hours are ideal for him because he will not have to make any adjustments to his scheduled radiation treatments for prostate cancer, which occur in the early morning and are expected to continue for the next five weeks. He also mentions that he has not had any side effects during his first three weeks of treatment. Can you ask any follow up questions about his cancer without violating the Americans with Disabilities Act?
Answer: According to the EEOC, an employer may not ask a job applicant who has voluntarily disclosed that he has cancer any questions about the cancer, its treatment, or the employee’s prognosis. However, if an applicant voluntarily discloses that he has cancer and the employer reasonably believes that an accommodation will be required to perform the job, an employer may ask whether the applicant will need an accommodation and, if so, what type.
Once a job offer has been made, an employer may ask questions about an applicant’s health and may require a medical examination as long as all applicants for the same type of position are treated in the same manner. A job offer is not considered real,
however, until the employer has obtained and evaluated all readily available non-medical information.
In this situation, because the applicant did not request a reasonable accommodation and there was no reason to believe he would require one, the interviewer cannot ask him any questions about the need for reasonable accommodation. In addition, the employer must keep any information the applicant disclosed about his medical information confidential.
Source: EEOC fact sheet: Questions and Answers on Cancer in the Workplace and the ADA,
reported in Accommodating Disabilities Business Management Guide
, New Developments ¶90,060.
Addressing coworkers' concerns about disability accommodations [September 26, 2005]
Issue: Mary is undergoing radiation treatment for aggressive breast cancer. She is continuing to work during her treatment, but she has been coming in late in the morning and takes frequent breaks. She also works from home two days a week. Mary's coworkers have been complaining that Mary is receiving special treatment and that they want the same privileges. Can you explain to them that Mary is allowed flexibility in her work schedule and location because she has cancer?
Answer: No. By telling co-workers that an employee is receiving a reasonable accommodation for a disability, you are effectively disclosing the employee's disability. Rather than disclosing that the employee is receiving a reasonable accommodation, you should focus on the importance of maintaining the privacy of all employees and emphasize that it is company policy to refrain from discussing the work situation of any employee with co-workers.
Many of these kinds of questions may be avoided by training all employees on the requirements of the Equal Employment Opportunity laws, including the Americans with Disabilities Act. It may be helpful to explain the law's requirements in your employee handbook or in employee orientation or training.
Source: EEOC's Questions and Answers about Cancer in the Workplace and the Americans with Disabilities Act, http://eeoc.gov/facts/cancer.html .
Can an employment decision be based on an individual’s foreign accent? [July 11, 2005]
Issue: As the receptionist for your company, Katherine is the first person your clients have contact with. Two of her major responsibilities are answering the phone and directing clients to the appropriate office within your building. You’ve received numerous complaints that people have trouble understanding her because of her heavy Russian accent. You would like to transfer her to another clerical position within the company that does not involve extensive verbal communication. Would transferring Katherine violate Title VII?
Answer: Under these circumstances, transferring Katherine would not violate Title VII. According to the Equal Employment Opportunity Commission, an employer may consider an employee’s foreign accent when making an employment decision if the individual’s accent materially interferes with the ability to perform job duties.
The EEOC has stated that this assessment depends upon the specific duties of the position in question and the extent to which the individual’s accent affects his or her ability to perform job duties. Because Katherine’s heavy accent materially interferes with her ability to perform her duties as a receptionist, transferring her to another clerical position that does not require extensive verbal communication would not violate Title VII.
Source: EEOC Guidance: Questions and Answers for Small Employers about National Origin Discrimination.
Tips for creating effective disability accommodation procedures [June 27, 2005]
Issue: Your organization's recruiters are embarking on an outreach initiative directed toward individuals with disabilities. In order to make their transition into your workforce as smooth as possible you'd like to create written procedures for the accommodation of disabilities. What are the key points to include?
Answer: You can follow the federal government's lead. Executive Order 13164, which requires federal agencies to establish procedures for processing requests for reasonable accommodation of individuals with disabilities, identifies the following elements of an effective, written procedure.
Explain that an employee or job applicant may initiate a request for reasonable accommodation orally or in writing. If an applicant or employee is required to complete a reasonable accommodation request form for recordkeeping purposes, the form should be provided as an attachment to the written procedures.
Explain how a request for reasonable accommodation will be processed and from whom the individual will receive a final decision.
Designate a time period during which reasonable accommodation requests will be granted or denied, absent extenuating circumstances. Time limits for decision making should be as short as reasonably possible.
Explain the responsibility of the employee or applicant to provide appropriate medical information related to the functional impairment at issue and the requested accommodation where the disability and/or need for accommodation is not obvious.
Explain the employer's right to request relevant supplemental medical information if the information submitted does not clearly explain the nature of the disability or the need for the reasonable accommodation, or does not otherwise clarify how the requested accommodation will assist the employee to perform the essential functions of the job or to enjoy the benefits and privileges of the workplace.
Explain the employer's right to have medical information reviewed by a medical expert of the employer's choosing at the employer's expense.
Provide that reassignment will be considered as a reasonable accommodation if the employer determines that no other reasonable accommodation will permit the employee with a disability to perform the essential functions of his or her current position.
Provide that reasonable accommodation denials be in writing and specify the reasons for denial.
Ensure that systems of recordkeeping track the processing of requests for reasonable accommodation and maintain the confidentiality of medical information received in accordance with applicable law and regulations.
Encourage the use of informal dispute resolution processes to allow individuals with disabilities to obtain prompt reconsideration of denials of reasonable accommodation. Individuals with disabilities should be informed that they have the right to file complaints with the Equal Employment Opportunity Commission and other agencies, as appropriate.
Can an offshore contractor require periodic medical exams? [May 16, 2005]
Issue: An offshore drilling contractor is concerned about possible injuries and deaths should an offshore employee have a heart attack or stroke while operating heavy machinery. It is considering a policy that would require all offshore workers to undergo mandatory periodic medical examinations that would include hearing, heart and blood pressure screening. Would such a policy violate the Americans with Disabilities Act? If so, are there other options?
Answer: Although the Americans with Disabilities Act permits periodic medical exams of employees in positions affecting public safety, offshore operations do not fall within existing EEOC policy regarding public safety and mandatory medical exams for such employees would be unlawful. The contractor may address its concerns in other ways, however. Here are some individualized options:
Workers with a known medical condition. If the contractor knows or has a reasonable belief that a particular offshore worker has a medical condition that could affect his or her ability to perform job functions or may pose a direct threat, it could require that employee to have a medical examination before allowing him or her to work offshore.
Conditional job offers. After making a conditional job offer to a worker, the contractor could require that worker to answer a medical history questionnaire and undergo a medical examination. If the contractor learns that an entering employee had a history of heart problems, it could ask follow-up questions of that person or request additional documentation to assess his or her present ability to safely perform the duties of the job. If the person could not safety perform with job with or without a reasonable accommodation, the job offer could be withdrawn.
Voluntary exams. The contractor could offer its workers voluntary medical examinations to detect potential medical conditions that could affect their ability to safely work offshore. However, in order to be considered voluntary,
the examination could not be required, and employees could not be penalized for refusing to take it.
Source: EEOC Informal Opinion Letter, September 10, 2004.
FDA Food Code interacts with the ADA [January 3, 2005]
Issue: A food service worker has become disabled by the Hepatitis A virus. The Food and Drug Administration's Food Code requires that an employee diagnosed with Hepatitis A virus be excluded from the food service establishment. Does the worker's employer have any other obligations with regard to the employee?
Answer: Yes. Although most people who have a disease resulting from the Big 4 pathogens
are not disabled by them, the Americans with Disabilities Act must be considered when a disability results. The ADA says that an employer may refuse to assign a job involving food handling to an employee who is disabled by one of the diseases on the CDC list of food-transmitted infectious diseases if the risk of transmitting the disease cannot be eliminated by reasonable accommodation. Therefore, employers may follow the Food Code's exclusion requirement only if it is determined that:
there is no reasonable accommodation that would eliminate the risk of transmitting the disease while also allowing the employee to work in his food handling position, or
all reasonable accommodations would pose an undue hardship on the business; and
there is no vacant position not involving food handling for which the employee is qualified and to which the employee can be reassigned.
These steps must be followed even for employees who serve a highly susceptible population,
for example older adults obtaining food in a nursing home or hospital.
Employers may need to hold open the job of an employee who has been disabled by disease and has been given a reasonable accommodation or has been excluded from the food establishment. The ADA requires employers to return the employee to the full duties of the original position once the need for accommodation or exclusion has passed (once the risk of transmitting the disease through food no longer exists), unless holding the position open would pose an undue hardship. If holding the position open for the entire period of accommodation or exclusion would pose an undue hardship, employers must determine if there is a vacant equivalent position for which the employee is qualified and to which the employee can be returned without causing undue hardship.
Source:How to Comply with the Americans with Disabilities Act: A Guide for Restaurants and Other Food Service Employers,
issued by the U.S. Equal Employment Opportunity Commission.
<p>In its popular HR Quiz, CCH's Human Resources Management experts highlight critical areas that can lead to costly people management missteps.</p>