By Kelsey P. Montgomery

Seyfarth Synopsis: Employee committed to taking opioids loses his job and his disability discrimination lawsuit because he refused to consider alternative pain management.

The “interactive process” required by the Americans with Disabilities Act (ADA), as amended by the ADA Amendments Act, is a two-way street between an employee and his or her employer.  Consistent with this mutual obligation, a federal court in Ohio recently dismissed a lawsuit filed by a former employee who refused to consider alternative pain management for his degenerative disc disease and arthritis in his neck and back.

In Sloan v. Repacorp, Inc., No. 3:16-cv-00161 (S.D. Ohio Feb. 27, 2018), the plaintiff worked as a production manager for Repacorp, which manufactures and prints labels using heavy machinery.  While Sloan’s job required him to spend only a small portion of his time working on heavy machinery, he always worked around this equipment and his working environment was extremely dangerous.  As a safety precaution, Repacorp maintained a policy requiring employees to notify management if they were taking nonprescription or prescription medication.

A year before his termination, Sloan began taking morphine and Vicodin while at work.  Occasionally, he took the morphine in a manner inconsistent with his prescription and he did not have a prescription for Vicodin.  He secured the Vicodin from his mother and a co-worker.  Sloan did not inform his supervisor, or anyone else at Repacorp, that he was taking these medications.  After several months of using these opioids at work, an employee reported to management that Sloan was obtaining Vicodin from his colleague.  He was immediately removed from the manufacturing floor and required to submit to a drug test.

When he tested positive for hydrocodone (an  in Vicodin), Repacorp placed Sloan on leave and referred him to its Employee Assistance Program.  While on leave, Sloan disclosed his morphine prescription.  Fearing a “huge liability,”  Repacorp asked if there were alternative, non-opioid treatments for his pain condition that would not put the company and Sloan at risk.  Although Sloan tried, he was unable to reach his physician to make this inquiry.  He then told the company president, without having consulted his doctor, that he needed to “stay on [his] medication” and that he “wouldn’t stop taking it.”  The company president believed Sloan “chose drugs over his job.”  Because Repacorp did not have any positions that would permit an employee to safely use opioids in the workplace, Repacorp terminated Sloan’s employment following this conversation.

Sloan subsequently filed a lawsuit against Repacorp, alleging disability discrimination under Ohio law and the ADA.  He claimed that Repacorp failed to accommodate his disabilities by refusing to grant his request to use prescription morphine.  Sloan argued that he could have safely performed his job while taking the medication, and that his employer should have conducted a “direct threat” analysis before denying his request.  The Court disagreed, finding that Sloan impeded Repacorp’s ability to investigate the extent of his disability and the breadth of potential accommodations that it might have reasonably afforded to him by refusing to cooperate with the company’s request for additional information.  Without this information, Repacorp could not determine whether Sloan was a qualified individual able to do his job either with or without a reasonable accommodation.  Accordingly, the Court granted Repacorp’s Motion for Summary Judgement and dismissed Sloan’s case.

Employer Take Away

An employer should conduct an individualized assessment to determine whether it can accommodate an employee’s disability.  Had Repacorp simply terminated Sloan for violating its policy against taking medications at work, the Court likely would have decided this case differently.  Thus, it serves as a good reminder for employers to always document their attempts to engage in the interactive process.  If an employee is terminated after refusing to engage with his or her employer, the employer will have a strong defense to any subsequent disability discrimination claim.

For more information on this topic, please contact the authors, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Workplace Policies and Handbooks Team or the Labor & Employment Team.

By Ariel D. Fenster

Seyfarth Synopsis: The Sixth Circuit Court of Appeals recently held that telecommuting can be a reasonable accommodation under the ADA when the employee is able to perform the essential functions of the position remotely and the request is for a finite period. Mosby-Meachem v. Memphis Light, Gas & Water Division, No 17-5483 (6th Cir. 2018).

The Facts

The Plaintiff, an in-house attorney for Memphis Light, Gas & Water Division (MLG&W), requested to work from home for ten weeks while she was on bedrest from pregnancy complications.  MLG&W denied the request.

MLG&W maintained a rather strict policy that attorneys must be in the office from 8:30 am – 5:00 pm.  “However, [it] did not maintain a formal written telecommuting policy at that time, and in practice, employees often telecommuted.”

MLG&W argued that physical presence was an essential function of Plaintiff’s position. Plaintiff stood her ground and stated she was able to perform the essential functions of her position remotely.  In fact, Plaintiff knew she could perform the job remotely.  During the dispute over whether Plaintiff could telecommute, she was also working remotely.  Plaintiff also previously worked remotely for two weeks several years prior.

At trial and in favor of Plaintiff’s disability discrimination claim, the jury awarded Plaintiff $92,000 in compensatory damages and $18,184.32 in back pay.

The Sixth Circuit affirmed.  In its finding, the Court noted that MLG&W failed to engage in an interactive process as required by the ADA to determine if working remotely was appropriate. The Court further noted that one of MLG&W’s key pieces of evidence, the job description, was significantly outdated and unreliable (20 years old outdated!).

Additional Guidance

Unfortunately for employers, there is no bright line test on the issue.  Just a handful of cases have weighed in on the “telecommute dispute.”  The two most notable cases come out of the Sixth Circuit, Williams v. AT&T Mobility Services, LLC, and EEOC v. Ford Motor CoThe cases are distinguishable from Mosby-Meachem for two reasons.  First in Williams and Ford, the employees never previously worked remotely.  Second, the requests to work remotely were for unlimited periods.

Just last month, in Morris-Huse v. Geico, the Middle District of Florida granted Defendant’s Motion for Summary Judgment holding that telecommuting was not a reasonable accommodation because Plaintiff’s physical presence was an essential function of her position.  The Court, like many other courts, reasoned that telecommute disputes are highly fact specific and require a true inquiry into the essential functions of the employee’s position.

For some additional guidance, the EEOC has issued some limited guidance on the matter.

Five Helpful Tips

While there is no hard and fast rule as to whether telecommuting is a reasonable accommodation under the ADA, here are five tips that may avoid putting you in a telecommute dispute:

  1. Evaluate each and every accommodation request on a case by case basis.
  2. Engage in the interactive process with the employee.
  3. Determine if the telecommuting is for a finite period of time.
  4. Think about whether the employee will be able to perform the essential functions of his or her position while telecommuting.
  5. Maintain up-to date job descriptions that accurately reflect the essential functions of each position.

For more information on this topic, please contact the author, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Workplace Policies and Handbooks Team or the Labor & Employment Team.

By John P. Phillips

Seyfarth Synopsis: Complying with the ADA, particularly when an employee has a mental health-related disability, can be challenging. Fortunately, a recent decision out of the Seventh Circuit provides helpful guidance for employers struggling to accommodate employees with mental health issues while at the same time maintaining safe and productive workplaces. The decision makes clear that in the appropriate circumstances, employers can require an employee to undergo a mental health examination as part of a fitness-for-duty test. The decision—and the New Year—also provides a good excuse for employers to evaluate their ADA policies and procedures.

Every year, employers and HR Departments around the country struggle to comply with the requirements of the ADA. At the same time, ADA-related issues continue to become more complicated, and the individualized nature of disability claims mean that even the most accommodating employers can find themselves making tough decisions—and then having to defend those decisions.

On top of this, there has been a steady rise in employees taking prescription drugs or receiving some form of psychiatric or other mental health treatment. In many cases, these employees have no problem performing their jobs, and no issues arise. However, when these employees begin to struggle in their jobs or, even worse, when they engage in problematic and sometimes aggressive behavior toward co-workers, employers must balance ADA compliance with maintaining safe and professional workplaces. This will continue to be difficult, but a recent decision from the U.S. Court of Appeals for the Seventh Circuit provides some helpful guidance.

Background on the Case

In Painter v. Illinois Department of Transportation, the Seventh Circuit recently considered when an employer can required an employee to undergo a mental health examination. In that case, Painter, the plaintiff, was a problematic employee, who snapped and screamed at co-workers, gave them blank stares, constantly mumbled to herself, repeatedly banged drawers in her office, was confrontational and argumentative, and began keeping a detailed log of interactions with co-workers during working time, often drafting more than one entry per hour. Painter even sent a concerning email to her union representative, in which she referenced “something” being “dead” and which prompted her union representative to contact the police.

Faced with numerous employee concerns and continued difficulties with Painter, her employer, the Illinois Department of Transportation (“IDOT”), asked that she undergo a fitness-for-duty exam. Initially, IDOT referred Painter to an occupational-medicine specialist, who in turn referred her to a psychiatrist because he noted that Painter could be bipolar. Eventually, after several doctor visits, administrative leave, and continued co-worker and supervisor complaints, IDOT asked Painter to undergo two fitness-for-duty exams with a psychiatrist. At first the psychiatrist cleared Painter to return to work, but when the complaints and concerning behavior continued (and after Painter sent the threatening email to her union representative), the psychiatrist found that Painter was unfit for duty because of her “paranoid thinking and the highly disruptive behavior which results from her paranoia.” Painter then brought suit, alleging that IDOT’s requirement that she see a psychiatrist violated the ADA.

The Seventh Circuit’s Reasoning

Under the ADA, employers are prohibited from requiring their workers to undergo medical exams, unless the exams are “job-related and consistent with business necessity.” Courts across the country have held that the job-related and business necessity test is a difficult burden for employers to meet. Luckily, the Seventh Circuit took a pragmatic view of IDOT’s decision to require psychiatric exams. The Court stated that when the employer “has a reasonable belief based on objective evidence that a medical condition will impair an employee’s ability to perform essential job functions or that the employee will pose a threat due to a medical condition,” the employer may require a medical exam. The Court also noted that preventing employers from endangering their co-workers is a business necessity, and the Court found that “[e]mployers need not retain workers who, because of a disability, might harm someone; such a rule would force an employer to risk a negligence suit to avoid violating the ADA.”

Applying this legal framework to the facts of the case, the Seventh Circuit ruled that, as a matter of law, the psychiatrist examinations were job-related and consistent with business necessity because IDOT reasonably believed that Painter might be a danger to herself and co-workers. Thus, IDOT did not violate the ADA.

Takeaways and Best Practices

The Seventh Circuit’s decision is welcome news for employers, and it injects much needed common sense into the ADA case law. In particular, employers and HR Departments can consider asking employees to see a psychiatrist for a fitness-for-duty exam in the right circumstances. However, employers must still be careful that any medical examination they require an employee to undergo is directly related to a reasonable belief that the employee cannot perform the essential functions of his or her job.

In addition, there are a number of other proactive steps employers can consider to help ensure that disability-related issues are handled appropriately, such as (1) providing ADA and disability training to supervisors and managers, (2) referring all disability claims to HR, (3) implementing a written procedure for dealing with disability claims, (4) going through the interactive process in all instances, (5) ensuring all job descriptions are up-to-date and accurate, (6) documenting everything, and (7) working with a competent physician or medical professional, as appropriate.

ADA and disability-related issues will only continue to proliferate in today’s workplace. Fortunately, at least one court has recognized the practical necessities employers face when complying with the ADA. By knowing the requirements of the ADA and taking proactive steps to ensure compliance, employers can put themselves in the best possible position to handle all disability-related issues appropriately and minimize any legal risk.

 

By Erin Dougherty Foley, Ashley K. Laken, and Craig B. Simonsen

Seyfarth Synopsis: According to the EEOC in this just filed lawsuit, a home care services provider in North Carolina violated federal disability rights law when it rejected telecommuting requests from an employee whose asthma and COPD “made her sensitive to workplace smells.” 

Earlier this month, the Equal Employment Opportunity Commission filed suit against a home healthcare company to “correct unlawful employment practices on the basis of disability.”  In the complaint, filed in EEOC v. Advanced Home Care, Inc., No. 1:17-cv-00646 (M.D.N.C. July 12, 2017), the EEOC alleges that Advanced Home Care, Inc. refused to provide Elizabeth Pennell, a “qualified individual with a disability,” with a reasonable accommodation, and discharged her in violation of the Americans with Disabilities Act.

According to the EEOC, Pennell was a case manager for patients requiring home services. As a case manager, Pennell was required to spend part of her day on telephone calls. In 2015, Pennell began to experience frequent asthma attacks and flare-ups of bronchitis.  After collapsing at work after a heavy bout of coughing, she was hospitalized where she was diagnosed with chronic bronchitis and COPD.

The complaint alleges that as a “consequence of asthma, bronchitis, and COPD, Pennell experiences wheezing, severe bouts of coughing, and asthma attacks,” and that Pennell’s physical impairments “substantially limit her in the major life activity of breathing. . . and constitute a disability under the ADA.” The EEOC alleges that scents and odors aggravate Pennell’s COPD and asthma, that she worked in a cubicle in close proximity to hundreds of other employees, and that she was therefore subjected to these types of irritants, including the smell of smoke on other employees’ clothes.

The EEOC claims that Pennell’s supervisor “ignored Pennell’s repeated requests to telework” and that teleworking would have allowed Pennell to be away from actual and potential respiratory irritants. The EEOC also claims that Pennell’s supervisor told her she would terminated if she could not return to work without restrictions.  The complaint alleges that Pennell could have performed the essential functions of her position with the reasonable accommodation of telework.  The EEOC also claims that as a consequence of Pennell’s disability, she had difficulty talking continuously for extended periods of time, and if she had been allowed to telework, she would not have been required to take inbound calls and therefore would have spent less time on the phone.

Employers should note that this scenario is somewhat unusual but that telecommuting has been an issue on the EEOC’s radar for the last several months (i.e., is working from home a reasonable accommodation?). Right how we only have the EEOC’s allegations and no response from the employer.  (We’ll be keeping an eye on this litigation to see how it plays out.)  However, the critical take away (regardless of how the employer responded) is the proper handling and response to employee accommodation requests.  Company policies and procedures as well as internal manager training systems for these sorts of requests and responses should be well set out and diligently followed.

For more information on this topic, please contact the author, your Seyfarth Attorney, or any member of the Firm’s Absence Management and Accommodations Team.

By Anne S. Bider, Robert A. Fisher, and James M. Hlawek

Seyfarth Synopsis: On February 5, 2017, in M.C.A.D. v. Country Bank for Savings, the Massachusetts Commission Against Discrimination (“MCAD”) held that an employer engaged in unlawful disability discrimination when it terminated an employee whose medical leave had ended and who could not provide a definite return to work date. The MCAD found that the employer had an obligation to engage in the interactive process to determine if extending the requested leave was a reasonable accommodation for the employee’s disability.

What should an employer do when an employee whose medical leave has ended cannot provide a return to work date? Fire the employee?  Not so fast.  The MCAD recently found that it was unlawful for an employer to terminate such an employee without engaging in the interactive process to determine if an extension of the employee’s leave would be reasonable.

The Facts

The Complainant was a loan coordinator for Country Bank for Savings. In September 2009, she went on an approved 12-week FMLA leave to give birth.  The leave was scheduled to end on November 30, 2009.  In October, following delivery of her child, Complainant was diagnosed with post-partum depression and notified the Bank that she would not be able to return to work on November 30, as planned.  She provided the Bank with documentation from her medical providers stating that, due to her condition, she would be out of work indefinitely.

On December 11, the Bank advised Complainant that, because her latest documentation did not provide a return date, her employment would be terminated if she did not return to work by December 21. In response, on December 17, Complainant called the Bank and told her supervisor that she hoped to return to work by mid-January.  The same day, Plaintiff’s attorney addressed a letter to the Bank requesting a short extension of Complainant’s leave as an accommodation to her post-partum depression, pending upcoming evaluations from Complainant’s medical providers in mid-January.  The letter stated that after Complainant’s mid-January appointments, she would advise the Bank whether a definite return date could be set.

On December 22, the Bank terminated the Complainant’s employment without further discussion with Complainant because she had not returned to work by December 21 and had not provided a return to work date.

The MCAD’s Decision

The MCAD held that in terminating Complainant’s employment without engaging in dialogue about her return to work date, the Bank discriminated against Complainant on the basis of disability in violation of state law. The MCAD found that once Complainant identified her disability and requested an extended leave, the Bank was obligated to engage in a dialogue with Complainant to determine if the extended leave was a reasonable accommodation.  Here, the Bank mistakenly relied on the 12-week period required by the FMLA as a measure of reasonableness and assumed that all requests for leave beyond the 12-week period were automatically unreasonable.  In addition, the Bank failed to produce any evidence that an extension of Complainant’s leave until mid-January would impose an undue burden on its operations or finances.

What This Decision Means For Employers

This decision reminds employers not to be rigid in administering medical leave. In some circumstances, an extended leave — even beyond the FMLA’s 12-week limit — may be a reasonable accommodation.

Further, the decision demonstrates the importance of the interactive process. Even when an employee is unable to provide a return to work date following exhaustion of medical leave, employers have an obligation to continue the interactive process to determine if a reasonable accommodation is possible.  In this case, the employer should have extended the Complainant’s medical leave for a couple of weeks because there was at least a suggestion that she could have provided a return date by then, unless doing so would have imposed an undue burden.  As the MCAD acknowledged, if the Complainant could not provide a return date by then and had no prognosis for improvement, the obligation to extend her leave likely would have ended.

In short, the decision shows the importance of flexibility, reasonableness, and interaction in dealing with employees who are unable to return from medical leave.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Absence Management & Accommodations Team or the Workplace Policies and Handbooks Team.

By Annette Tyman and Michael L. Childers

Seyfarth Synopsis: Federal Contractors should immediately update the Disability Self-ID Form to include the new expiration date.  The OFCCP is allowing a 10-day grace period, until February 10th to update the form.

Last week we updated contractors on OMB’s renewal of the disability self-identification form (see post here).  Note that there were no substantive changes to the form and that the only change was an update to the effective date from January 31, 2017 until January 31, 2020. Since that update, we have learned that the OFCCP is expecting contractors to “immediately” take steps to update the form to reflect the new effective date.  For those contractors who need additional time to update the expiration date, the National Office has implemented a 10-day “grace period.” For unexplained reasons, the OFCCP has not publicized this deadline on its website. Nonetheless, contractors should take immediate steps to update the disability self-ID form with the new effective date and implement the change by February 10th.

To ensure the updated form is in use, contractors should take the following steps: 

  • Update online application systems to ensure that they are displaying the self-ID form with the new effective date.
  • Update new hire onboarding systems to ensure that these materials include the updated form, including updating paper copies that may be utilized.
  • Ensure that the updated form is used in interim reminders to employees of their option to update their disability status.
  • Ensure that the updated form is used in any resurvey of the workforce.
  • For those contractors who are currently subject to a compliance review, ensure that you can demonstrate that you have implemented the updated form or readily show the steps that  you have taken to transition to the updated form.

The new form can be located using the following link:

https://www.dol.gov/ofccp/regs/compliance/sec503/Self_ID_Forms/VoluntarySelf-ID_CC-305_ENG_JRF_QA_508c.pdf

Seyfarth Shaw’s OFCCP and Affirmative Action Compliance team leads the legal industry in thought leadership, affirmative action plan preparation, compliance review representation and employer advocacy on issues relating to contractor compliance.  We have a long track record of experience and we are ready to help assist with all of your affirmative action compliance needs.

 

By Johanna T. Wise and Ryan L. Behndleman

Seyfarth Synopsis: Do employers have to let employees sleep on the job as a reasonable accommodation for a disability? While far from being decided, a recent federal case in the Southern District of New York addresses the issue.

Let’s face it, we all get tired from time to time. While on the clock, however, sleeping at work is a practice that employers invariably frown upon. Earl Beaton learned this the hard way when he was fired from his job with New York City’s Metro Transit Authority (MTA) after briefly nodding off during his shift. But Mr. Beaton’s situation is not as clear as it seems because he fell asleep due to a side effect caused by his necessary prescription medication. Mr. Beaton did not intend to take his termination lying down, so he filed suit against his former employer for discriminating against his disability.

Background

Mr. Earl Beaton was diagnosed with schizophrenia and depressive disorders in 1985. Without medication, Beaton is prone to psychotic episodes and delusions. To counteract these symptoms, Beaton was prescribed an anti-psychotic medication called Fluphenazine, which can cause drowsiness.

Beaton disclosed his illness to his employer in 1995, and was able to work for many years without incident while taking the medication as prescribed. In 2000, Beaton was even promoted to a position as a station agent. Then, during the overnight shift on December 23, 2013, Beaton encountered a problem. Around 1 a.m. Beaton experienced severe schizophrenic symptoms and took a pill to counteract those symptoms. Three hours later, the symptoms had not subsided, so he took another pill. The high dosage made Beaton extremely drowsy, and it appeared that he briefly nodded off. It was at this moment that Beaton’s supervisor approached and caught him sleeping on the job.

After disciplinary hearings, although Beaton denied that he was actually sleeping, MTA terminated his employment. He then filed a charge with the EEOC and soon thereafter filed suit in the Southern District of New York.

MTA’s Motion To Dismiss

Upon service of the complaint, MTA filed a motion to dismiss for failure to state a claim upon which relief can be granted. In this stage of a case, the court generally relies on the allegations made by the plaintiff to decide whether there are enough facts to sustain plausible claims. Using this standard, the court dismissed Beaton’s failure to accommodate claim but allowed the discrimination and retaliation claims to survive.

Many employers may learn of this decision and think, “What?! I can’t terminate an employee for sleeping on the job?” But rest assured, this case is far from decided. When a court decides a motion to dismiss, it looks for one key issue: Does the plaintiff have plausible claims based on what the plaintiff alleged in his complaint? Further, the court must view these allegations in the light most favorable to the plaintiff.

In his judicial opinion, Judge Edgardo Ramos assessed Beaton’s discrimination claim by using a well-established four-part test: 1) Was the plaintiff a member of a protected class? 2) Was the plaintiff qualified for the position? 3) Did the plaintiff suffer adverse employment action? and 4) Is there some minimal evidence to support an inference of discrimination? As you can see, the bar is extremely low for what will pass muster under this test. While MTA argued that Beaton’s need to sleep made him unqualified for his position, the court noted that his 13 years of satisfactory performance established that he was qualified to perform the essential functions of his job.

As for the retaliation claim, to survive a motion to dismiss the plaintiff only needs to show that he engaged in protected activity (i.e. filing a grievance with a labor union or filing an EEOC claim) that the employer was aware of, and that it caused the employer to take adverse employment action against him. Judge Ramos noted that this claim survived because there is the possibility that the termination decision occurred after Beaton engaged in protected activity, and that was enough to raise a plausible claim.

So What Happens Next?

This case is far from over. The surviving claims will enter the discovery phase to allow each side to collect evidence to support their claims or defenses. The case could be decided on summary judgment or settled at any stage of the litigation process.

It is important to note that in his opinion regarding the motion to dismiss, Judge Ramos did not decide whether employers need to allow their employees to sleep on the job as a reasonable accommodation. So what should employers do? Just as before, employers should engage in an interactive process if an employee or applicant with a disability requests an accommodation to determine if the employee can be reasonably accommodated without causing an undue hardship. Employers should also carefully review and consider consulting with an attorney before taking adverse employment action where the underlying behavior at issue is tied to a disability. But at this point, there is no need to lose any sleep over this case.

For more information on this topic, please contact the authors, your Seyfarth Attorney or a member of the Firm’s Absence Management and Accommodations Team.

 

By Pamela Quigley Devata, Paul Kehoe, and Craig B. Simonsen

The Federal Trade Commission (FTC) and the Equal Employment Opportunity Commission (EEOC) have just announced two short guides on employment background checks: Background Checks: What Employers Need to Know and Background Checks: What Job Applicants and Employees Should Know.  The documents were not subject to Commissioner review and approval prior to publication.

Jessica Rich, the Director of the FTC’s Bureau of Consumer Protection, indicated that the “FTC is pleased to work with the EEOC to help ensure that employers and potential employees have a solid understanding of their rights and responsibilities.”

Overall, the FTC and the EEOC want employers to know a couple of things.  First, that they need written permission from job applicants before getting background reports about them from a company in the business of compiling background information. Second, that it’s illegal to discriminate based on a person’s race, national origin, sex, religion, disability, or age (40 or older) when requesting or using background information for employment.

The guides provide high-level, bullet point summaries of various laws, including Title VII of the Civil Rights Act of 1964 and the Fair Credit Reporting Act (FCRA), to alert employers of their duties and employees of their rights regarding criminal background checks.  Unfortunately, the guides’ vagueness provides very little practical help to employers attempting to comply with the law and almost no advice to employees or applicants beyond the recommendations to contact the EEOC or FTC with any possible complaints.  For example, both guides state that everyone must be treated the same.  Yet, the next bullet point essentially directs employers to treat everyone differently (on a case-by-case basis), as suggested in the EEOC’s Enforcement Guidance on the Consideration of Arrest and Conviction Records issued in 2012.  While there are obvious differences between the disparate treatment and disparate impact theories of discrimination, many people without an employment law background could be further confused by the guides.

Both guides also present a limited view of what could be job-related and consistent with business necessity, i.e., a criminal background check that “accurately predict[s] who will be a responsible, reliable, or safe employee.”

Finally, statements in both guides make it appear as if the EEOC is modifying its position on conduct-related disqualifications for individuals with disabilities by suggesting that employers “[b]e prepared to make exceptions for problems revealed during a background check that were caused by a disability.”  That position seems to overstate the EEOC’s position related to conduct-related issues set forth in its Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act Enforcement Guidance issued in 2002.

Employers may wish to look closely at these two new publications, with the understanding that the documents, in and of themselves, provide little guidance on how an employer may comply with Title VII when considering criminal backgrounds.  The guide for employers does provide a good review of an employer’s obligations under the FCRA and a snapshot of additional obligations under the ADA, the Genetic Information Nondiscrimination Act of 2008 (GINA), and Title VII’s recordkeeping requirements.  However, it is important for employers to recognize that each of these areas of the law are nuanced and not conducive to a mere bullet point analysis.

At the very least, the publications illustrate that two federal government agencies are working together on the issue of employment background checks and that current employees and future applicants may have more questions about their legal “rights.”  Employers conducting background checks should be sure to evaluate their policies and processes in light of these publications and also train their Human Resources professionals on these laws.

For more information on employers responsibilities under the FCRA or use of criminal background screening in employment, please contact your favorite Seyfarth attorney.

 

 

By Lawrence P. Postol

Before Congress passed the 2008 Amendments to the Americans With Disabilities Act (“ADA”), courts generally held temporary disabilities were not covered by the ADA.  Thus, if an employee had a temporary condition such as a broken leg or acute bronchitis, employers after the 12 weeks of  Family Medical Leave Act (“FMLA”) leave ended, often required employees to return to work or be terminated from their employment.  In the first Court of Appeals decision to address this issue, Summers vs. Altarum Institute Corp., No. 13-1645 (4th Cir. January 23, 2014),  the United States Court of Appeals For The Fourth Circuit (“Fourth Circuit”)  held that after the 2008 Americans with Disabilities Act Amendments Act (“ADAAA”), the ADA now protect persons with temporary disabilities which are “severe.”

When the ADAAA was enacted in 2008, it had an odd reference to temporary disabilities.  The ADAAA provided that an impairment which was “transitory and minor,” i.e., of “an actual or expected duration of six months or less,” would not be considered as a disability under the “regarded as” definition of a disability.  42 U.S.C. § 12102(3)(B).  That is, if the employer thought a worker had an impairment which was temporary and regarded the person as temporarily disabled, that would not qualify the employee as being a person with a disability, and thus protected by the ADA.

However, that left open the much more common situation – what if the person actually had a temporary impairment, can a temporary impairment be an actual disability thus warranting ADA protection.  Many hoped this glaring omission was just a legislative oversight.  In the case of Summers vs. Altarum Institute Corp., No. 13-1645 (4th Cir. January 23, 2014), the Court of Appeals for the Fourth Circuit answered the question, ruling that a temporary and severe impairment does in fact qualify as a disability under the ADA, and thus persons with such temporary and severe impairments are protected by the ADA.

In reaching this conclusion, the Fourth Circuit faced a rather extreme fact pattern.  An employee fell and fractured his left leg, tore the meniscus tendon in his left knee, fractured his right ankle, and ruptured a tendon in his right leg.  The employee’s medical evidence was that he could not walk for six weeks, and would not be able to walk normally for seven months.  A month and a half later, the employee was fired when he could not return to work and the customer where he had worked on site insisted on a replacement (presumably the employee did not have FMLA coverage).  The trial court, relying on pre-ADAAA case law, held a temporary disability is not covered by the ADA.

On appeal, the Fourth Court noted the ADAAA stated that temporary conditions could not meet the “regarded as” definition of a disability.  However, the Court also correctly noted the exclusion did not explicitly apply to the definition of an actual disability (Slip Opin. at 9 n.1).  While one could argue this was a legislative oversight, since it makes no sense to exclude temporary conditions from the definition of a regarded as disability, only to include them as an actual disability, the Fourth Circuit never asked that question.  Instead, the Fourth Court reasoned that when a provision is provided in one part of legislation, but not in another part of the same legislation, the inference is that the omission was intentional (Slip Opin. at 15-16).

The Fourth Circuit also noted that the EEOC regulations and appendix explicitly provide that temporary conditions can be an actual disability if the condition is “sufficiently severe.”  29 U.S.C. § 1630.2(j)(1)(ix) and 1630.2(j)(1)(ix) (app.).  The EEOC, as an example, noted that a back impairment which limits lifting to 20 pounds for several months would be considered severe enough and thus a protected disability (Slip Opin. at 12).

The Fourth Circuit found the EEOC’s regulations to be consistent with Congressional intent and that they were reasonable, because the intent of the Act was to expand and liberalize the definition of a covered disability:

Abrogating Toyota [Motor Manufacturing, Kentucky Inc. v. Williams, 534 U.S. 184, 199 (2002)], the amended Act provides that the definition of disability “shall be construed in favor of broad coverage of individuals under this chapter, to the maximum extent permitted by [its] terms.”  42 U.S.C. § 12102 (4)(A).  Further, Congress instructed that the term “substantially limits” be interpreted consistently with the liberalized purposes of the ADAAA.  Id. § 12102(4)(B).  And Congress directed the Equal Employment Opportunity Commission (“EEOC”) to revise its regulations defining the term “substantially limits” to render them consistent with the broadened scope of the statute.  Pub. L. No. 110-325, § 2(b)(6).

Slip Opin. at 9.

Likewise, the Fourth Circuit had no problem concluding that a seven-month limitation on normal walking is “sufficiently severe” to come under the EEOC regulations. The Fourth Circuit also noted that accommodating temporary disabilities will not dramatically burden employers, since obviously, if the disability is temporary, the accommodation will also be temporary (Slip Opin. at 16).

It should be noted that the Fourth Circuit’s decision probably is doing a favor for employers.  The reality is that early on, right after an injury or medical condition develops,  employers often do not know if the condition will cause a permanent impairment.  Thus, if the employer initially fails to provide a reasonable accommodation, the employer would face liability if it later turns out the employee does not make a full recovery and thus has a permanent disability.  Indeed, one need only look at the employee in Summers to see this.  While a fractured leg normally heals with no residual impairment, that is not always the case.  Complications or poor healing can result in a limp or arthritis, and a torn meniscus often results in a permanent weakness in the knee.  Let’s face it, not everyone recovers like football stars Adrian Peterson and RGIII.

Thus, when faced with an injured or sick employee who makes an ADA accommodation request, employers usually have to assume there might be a permanent impairment at the end of medical treatment, and thus wise employers never automatically reject accommodation requests. Now with the Summers decision, this practice is even more prudent, since even a temporary disability can warrant ADA protection.

One obvious question is, how severe must the temporary condition be to warrant coverage?   Colds, the flu, minor bone fractures – probably not.  However, any condition that last more than a couple of months may well warrant ADA protection.

Congress’ intent was for employers not to focus on whether a condition is, or is not, a disability, but to focus on reasonable accommodations which will allow the employee to continue to work.  Now, more than ever, that is good advice for employers.

If you have any questions, please contact the author, a member of Seyfarth’s Absence Management and Accommodations team, or your Seyfarth attorney.

By Natascha B. Riesco

It may soon be easier for obese plaintiffs to claim disability discrimination.  The American Medical Association (AMA) recently declared obesity as a “disease,” which may have supersized implications for employers as they deal with reasonable accommodation requests and disability discrimination claims from overweight employees.  So is obesity a disability?  Can employers defend these claims on the basis that it is not? And what’s in store for employers in this arena?  

Is Obesity a Per-se Disability?

Not quite.  To qualify as disabled under the ADA, an individual must have a physical or mental impairment that substantially limits one or more major life activities. In the original regulations that implemented the ADA, the EEOC took the position that “except in rare circumstances, obesity is not considered a disabling impairment. “ The EEOC’s Compliance Manual, however, did note that “severe obesity” (which was defined as “100% over the norm”) was “clearly an impairment” and noted that severely obese people often have underlying disorders that would likely qualify as impairments.  Following passage of the ADAAA, in 2009 however, the EEOC took out the language in its Manual and removed its prior definition of obesity indicating that “the analysis has been superseded by the ADA Amendments Act.” See http://www.eeoc.gov/policy/docs/902cm.html.

Since the passage of the ADAAA, the EEOC has brought two lawsuits involving morbidly obese plaintiffs.  In both, it obtained consent decrees. In one of them, however, a federal court issued an opinion holding that severe obesity was a disability under the ADA, even absent proof of a physiological basis. 

The AMA’s Obesity Stance 

Since then, the AMA declared that obesity is a disease (not just a medical condition). In June 2012, the AMA noted that obesity required “a range of medical interventions to advance obesity treatment and prevention.”  It also noted that recognizing obesity as a disease would encourage a change in the way people perceive, and that the medical community deals, with obesity. Obesity for adults is defined as having a body mass index (BMI) of 30 or higher.  

During an interview in September 2013, EEOC Commissioner Chai Feldblum acknowledged that “the AMA’s official recognition [of obesity as a disease] will certainly not hurt plaintiffs.”   Although Commissioner Feldblum noted that the basic legal framework of the ADA has not changed and stated that the AMA’s policy does not alter the EEOC’s enforcement approach or efforts, she simultaneously noted that courts were beginning to reassess the view that obesity was not limiting enough to qualify as a disability. 

How to “Slim” Down Potential Employer Liability

In the wake of the AMA’s declaration, it may be more difficult for employers to argue that obesity is not a disability.  Employers may also expect to see an increase in claims brought by obese individuals.  Even individuals who are overweight or moderately obese may jump on the bandwagon and argue that they too may qualify as disabled.

Also, under the ADAAA’s “regarded as” prong, employees need only show that the employer took action based on its assumptions or beliefs about the employee’s obesity, even if in reality that impairment did not substantially limit a major life activity. Accordingly, even if the plaintiff does not have an actual disability, simply showing that she was subjected to an action based on the perception that her weight was a physical impairment, may be enough.  Similarly, jokes about an employee’s weight may also lead to claims of disability harassment.

To minimize potential liability, employers must be more vigilant about potential obesity related claims.  This not only means recognizing that the prohibition against discrimination may extend to obese employees, but also an employer’s efforts to handle requests for reasonable accommodation from overweight individuals.  And employers must be careful to avoid any suggestion that employees who are overweight are prevented from doing certain jobs on account of their weight. 

For additional information on obesity as a disability, please contact the author, a member of the Absence Management and Accommodations Team, or your Seyfarth attorney.