The EEOC alleged that Verizon failed to provide reasonable accommodation to individuals with disabilities as required under the Americans with Disabilities Act (ADA) through its “no fault” attendance policy. The attendance policy placed employees with a certain number of “chargeable absences” in disciplinary action which could result in termination. The company also failed to provide exceptions to the policy for individuals with disabilities whose “chargeable absences” were based on their disabilities. Thus, the EEOC asserted, Verizon terminated employees who needed reasonable accommodations because of their disabilities based on its policy.

This historic settlement demonstrates the need for employers to have flexible leave and attendance policies that provide for reasonable accommodation for employees with disabilities. Similar to the Verizon settlement, in January 2011, the EEOC staked out its stance against policies of automatic termination at the end of disability-related medical leave in a $3.2 million settlement with Supervalu, Inc., American Drug Stores, LLC, and Jewel Food Stores, Inc. To read our post about this case, click here.

Based on recent large EEOC settlements, in June 2011, the agency held a public hearing regarding leave as a reasonable accommodation under the ADA. To read about the hearing and about the EEOC’s views on leave policies under the ADA, click here.

To read the Verizon EEOC press release, click here.

Plaintiff, an employee for GH Engineering Inc., was assigned to work on a government subcontract held by defendant Science Applications International Corporation (“SAIC”) with the Central Intelligence Agency (“CIA”).  Plaintiff suffered from a sleep disorder that caused excessive daytime sleepiness which resulted in her momentarily falling asleep during the workday.  Plaintiff occasionally fell asleep at CIA meetings.

Pursuant to the subcontract agreement, GH Engineering was an independent contractor of SAIC.  GH Engineering paid plaintiff, gave her raises, withheld taxes, and provided her with paid vacation that accrued pursuant to the GH Engineering’s vacation schedule.  Plaintiff went to a SAIC orientation, completed monthly status reports with SAIC, and received input from SAIC on her travel, training, and time cards.  Plaintiff’s work was directed primarily by two CIA employees and she gave regular status reports of her work to the CIA.       

Plaintiff was removed by SAIC from the subcontract with the CIA for falling asleep during three meetings and using a government computer to send a personal email.  Plaintiff alleged that her termination by SAIC from the subcontract was due to her sleep disorder and violated the Americans with Disabilities Act (“ADA”) and Title I of the Civil Rights Act of 1991(“Title I”).  Plaintiff argued that she was a de facto employee of SAIC because of the degree of control SAIC exercised over her work.  The district court granted summary judgment to SAIC, holding that SAIC did not exercise sufficient control over plaintiff to be plaintiff’s employer for purposes of the ADA and Title I.  

The district court held that plaintiff was unable to present any evidence that she was under the direct control of SAIC in regard to the performance of her professional work.  In concluding that plaintiff was an independent contractor of SAIC, the district court relied on the facts that plaintiff was a senior engineer, a skilled occupation, who worked at a CIA site with tools provided by the CIA and her work was directed by CIA employees.  Additionally, GH Engineering paid plaintiff, gave her raises, and withheld taxes.  The district court concluded that SAIC’s lack of control over the manner in which plaintiff performed her work and the lack of a financial relationship between SAIC and plaintiff demonstrated that plaintiff was not an employee of SAIC and she could not recover under the ADA and Title I. 

The district court further held that plaintiff failed to establish the essential elements of her tortuous interference with contract claim against SAIC because no evidence demonstrated an employment relationship or reasonable expectancy of an employment relationship with the CIA.   

To read the full memorandum of opinion by the district court on SAIC’s Motion for Summary Judgment, click here.

How not to fire an employee for theft.  (Workplace Prof Blog)

Diabetic’s disability lawsuit against restaurant is hard to swallow.  (LA Times)

Should I fight or settle?  (Connecticut Employment Law Blog)

New OSHA PPE (personal protective equipment) guidance.  (Manpower Employment Law Blawg)

Weekly calls to employee interfere with FMLA leave.  (FMLA Blog)  (Additional commentary here.)

Who is a successor for FLSA purposes?  (Connecticut Employment Law Blog)

In the consent decree, the EEOC said that since Nov. 1, 2003, Jewel-Osco unlawfully terminated employees with disabilities at the end of medical leaves rather than bringing them back to work with reasonable accommodations.  According to the EEOC, Jewel-Osco prohibited employees who were on one-year paid disability leave from returning to work unless they could return without any accommodation to full service and had no physical or mental restrictions   The EEOC alleged that approximately 1,000 employees of Jewel-Osco stores in the greater Chicago area were allegedly terminated under this policy since 2003.  Not all of these former employees, however, wished to participate in the suit.  Notably, according to the EEOC, not all of these former employees were found eligible by the EEOC.

The consent decree resolving the case provides a $3.2 million fund in which 110 individuals will share, bringing the average award to just over $29,000 per claimant.  In addition to the monetary relief, Jewel-Osco is required to ensure that its employees involved in making accommodation decisions undergo training on the requirements of the ADA and on the types of accommodations that are available to return their employees to the workplace.

Under the consent decree, the company will have to report regularly to the EEOC on its efforts to accommodate employees with disabilities who are attempting to return from medical leaves of absence.  Jewel-Osco must also revise its communications with such employees to assure them that they don’t need to be 100 percent healed to be considered for a return to work and to notify them of the types of accommodations that might be available if they are considering returning to work with medical restrictions.  Jewel-Osco also will hire consultants to review and recommend changes to its current job descriptions, ensure that the descriptions of the physical requirements of the job are accurate and provide recommendations on possible accommodations to common work restrictions in various positions in the stores, the EEOC said.

Supervalu denied wrongdoing.  Luke Friedrich, a spokesman for Supervalu, said that “while Supervalu and Jewel-Osco believe that we’ve fully complied with the law, we ultimately chose to settle this case in order to avoid future litigation costs, put the matter behind us and focus on our current business initiatives. Supervalu and Jewel-Osco do not discriminate on the basis of disability.  In fact, Jewel-Osco has been consistently recognized for its efforts to hire and accommodate people with disabilities, receiving awards from multiple advocacy organizations and being named one of the top employers in Illinois for people with disabilities by the Illinois Department of Human Services’ Division of Rehabilitation Services. We remain committed to providing the best possible employment opportunities for all of our associates.”

A link to the EEOC press release can be found here.

John Harrison began working for Benchmark Electronics (“Benchmark”) as a temporary employee in 2005.  A few months later, Harrison applied for a permanent position with the company and consented to a background check and drug test as part of the pre-employment inquiry.  After Harrison’s drug test turned out positive for barbiturates, his supervisor, Don Anthony, approached him about it.  Harrison informed Anthony that he had a prescription for the medication, and Anthony proceeded to call the Medical Review Officer (“MRO”) in charge of reviewing Harrison’s drug test.  The MRO asked Harrison some questions over the telephone regarding the medication.  With Anthony present in the room, Harrison told the MRO that the medication was for his epilepsy, a condition he had since he was a child.  After the MRO cleared Harrison’s drug test and the company’s human resources department gave Anthony the go-ahead to hire Harrison, Anthony told human resources not to extend Harrison an offer.  He then informed the temporary agency not to return Harrison to Benchmark, citing performance and attitude problems.  The agency then fired Harrison.

Harrison proceeded to sue Benchmark under the ADA, alleging improper medical inquiry and discrimination due to a perceived disability.  The district court granted summary judgment for Benchmark on all claims.  Harrison appealed only the medical inquiry claim.  The Court of Appeals first examined whether a non-disabled employee could state a private cause of action for a medical inquiry claim, an issue of first impression in the Eleventh Circuit.  The ADA prohibits employers from “conduct[ing] a medical examination or mak[ing] inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability.”  Applying principles of statutory construction, the court reasoned that the statute at issue does not limit coverage to job applicants who are also disabled within the meaning of the ADA.  The court stated that under the ADA, employers may ask follow-up questions after a positive drug test result to determine whether the medications taken are legally prescribed, so long as the questions do not relate to disability.  Citing EEOC guidance, the court stated that questions that “are likely to elicit information about a disability” are prohibited as part of the pre-employment offer inquiry.  The court found that there was a genuine issue of material fact as to whether the supervisor’s presence in the room during the MRO’s conversation with Harrison constituted “an intentional attempt likely to elicit information about a disability,” and so reversed the grant of summary judgment in favor of Benchmark.

ADA.gov (http://www.ada.gov/employmt.htm) has the following Q&A:

Q. Are alcoholics covered by the ADA? Yes. While a current illegal user of drugs is not protected by the ADA if an employer acts on the basis of such use, a person who currently uses alcohol is not automatically denied protection. An alcoholic is a person with a disability and is protected by the ADA if s/he is qualified to perform the essential functions of the job. An employer may be required to provide an accommodation to an alcoholic. However, an employer can discipline, discharge or deny employment to an alcoholic whose use of alcohol adversely affects job performance or conduct. An employer also may prohibit the use of alcohol in the workplace and can require that employees not be under the influence of alcohol.

A.

The EEOC has this to say on its website about the ADA and alcohol abuse:  

• Current illegal use of drugs is not protected by the ADA. You do not need to hire or retain someone who is currently engaging in the illegal use of drugs. Tests for the current illegal use of drugs are permitted at any time prior to or during employment.
• While people with alcoholism may be individuals with disabilities, the ADA still allows employers to hold them to the same performance and conduct standards as all other employees, including rules prohibiting drinking on the job.Example: An employer may fire an employee who is drinking alcohol while on the job if it has a uniformly applied rule prohibiting such conduct.But: There may be times when you may have to accommodate an employee with alcoholism. For example, an employer may have to modify a rule prohibiting personal phone calls at work for an employee with alcoholism who periodically has to contact his “AA sponsor,” if the employee has a need to do so during work hours.

Here is the text from the ADA itself discussing this issue:  

ILLEGAL USE OF DRUGS AND ALCOHOL

SEC. 12114. [Section 104]

(a) Qualified individual with a disability. – For purposes of this subchapter, a qualified individual with a disability shall not include any employee or applicant who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use.

(b) Rules of construction. – Nothing in subsection (a) of this section shall be construed to exclude as a qualified individual with a disability an individual who-

(1) has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs, or has otherwise been rehabilitated successfully and is no longer engaging in such use;

(2) is participating in a supervised rehabilitation program and is no longer engaging in such use; or

(3) is erroneously regarded as engaging in such use, but is not engaging in such use; except that it shall not be a violation of this chapter for a covered entity to adopt or administer reasonable policies or procedures, including but not limited to drug testing, designed to ensure that an individual described in paragraph (1) or (2) is no longer engaging in the illegal use of drugs.

(c) Authority of covered entity. -

A covered entity-

(1) may prohibit the illegal use of drugs and the use of alcohol at the workplace by all employees;

(2) may require that employees shall not be under the influence of alcohol or be engaging in the illegal use of drugs at the workplace;

(3) may require that employees behave in conformance with the requirements established under the Drug ­Free Workplace Act of 1988 (41 U.S.C. 701 et seq.);

(4) may hold an employee who engages in the illegal use of drugs or who is an alcoholic to the same qualification standards for employment or job performance and behavior that such entity holds other employees, even if any unsatisfactory performance or behavior is related to the drug use or alcoholism of such employee; . . . .

The bolded text at the end is the key language in our view.  It gives employers the authority to hold an employee “who is an alcoholic to the same qualification standards for employment or job performance and behavior that such entity holds other employees, even if any unsatisfactory performance or behavior is related to the drug use or alcoholism of such employee.”

With each new administration comes changes to employment law. The Obama administration is making major changes that will impact your organization. This breakfast briefing will shorten your learning curve and keep you on the right side of new laws. Specifically, this event will address changes to FMLA, ADA and COBRA.  More information after the break.

When:�
Thursday, April 16, 2009
Breakfast & Networking 7:30-8:00 a.m.
Presentation 8:00-9:00 a.m.
Q&A 9:00-9:30 a.m.

Where:
Tower Club
8000 Towers Crescent Drive
Vienna, VA
703.761.4250

Speakers:
Eric Welter, Employment Law Attorney, Welter Law Firm, P.C.
Karla Leavelle, President, Human Capital Advisors LLC

Some of the issues discussed:

• New definition of “disability under ADA
• New FMLA regulations on support leave, notice obligations and medical certifications
• New COBRA benefits rules under stimulus package

Who Should Attend: HR and benefits professionals, business managers, office managers, administrators, directors, payroll professionals and attorneys.

The cost is $35.00. You may pay by credit card using Pay Pal or by check. Payment due prior to attendance.

To pay by check (payable to Welter Law Firm, P.C.) mail to:
Welter Law Firm
720 Lynn Street, Suite B
Herndon, VA 20170

For more information, contact Eric Welter @ 703.435.8500
or via email: eaw@welterlaw.com

Employer Not Participating In Interactive Process Is Not Acting In Good Faith.  More after the break.

In EEOC v. Federal Express, an employer’s repeated denial of a deaf employee’s requests for a sign language interpreter during employee meetings and training sessions resulted in a jury verdict in favor of the employee.  The EEOC sued FedEx on behalf of Ronald Lockhart, a deaf package handler who was fluent in American Sign Language (ASL).  Lockhart requested an interpreter on many occasions so that he could understand the content of meetings such as his initial interview, employee meetings and training.  (Lockhart had to bring a friend with him to translate during the initial interview).  During the plaintiff’s three years of employment, FedEx repeatedly denied his request for a sign language interpreter for training sessions.  Lockhart also had poor written English skills, but his supervisor communicated with him exclusively through written notes on stray pieces of paper and had other employees take his written tests for him.  Lockhart filed a discrimination complaint with the EEOC, claiming the company had denied him a reasonable accommodation for his disability, and was terminated soon thereafter for “deficient attendance.”  A retaliation claim was therefore added. 

A jury awarded $8,000 in compensatory damages and $100,000 in punitives.  FedEx appealed the punitive award, claiming the evidence was insufficient and the damages were excessive.  The 4th Circuit upheld the verdict, noting that the company repeatedly refused to accommodate the plaintiff’s disability, putting him in vulnerable and potentially dangerous situations by not allowing him to fully participate in 24 training sessions. “FedEx’s continuing failure and refusal to provide ADA accommodations for [the plaintiff's] deafness disability did not result from isolated incidents,” the court said.”  On the evidence, the jury was entitled to find that FedEx failed to sufficiently take affirmative steps to ensure the implementation of its ADA compliance policy with respect to [the plaintiff].”  The court found that FedEx’s delay in the interactive process was not in good faith.

This case is a good reminder that employer’s bear the burden of participating in the “interactive process” with employees regarding potential accommodations under the ADA.

2008 Amendments To The Americans With Disabilities Act.  More after the break.

The ADA Amendments Act, which recently went into effect, retains the “substantial limitation” requirement to establish a disability, but makes it easier to meet that standard.  One purpose of the ADA Amendments Act instructs to reinstate “a broad scope of protection to be available under the ADA.”   Most significantly, the Act:

• Calls for revision of regulations defining the term “substantially limits”;
• Expands the definition of “major life activities” by including two non-exhaustive lists:
  • the first list includes many activities that have been recognized (e.g., caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, etc) as well as activities not specifically recognized prior to the Act (e.g., reading, bending, and communicating);
  •  the second list includes major bodily functions (e.g., “functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions”);
• The bill specifically states that mitigating measures such as “medication, prosthetics, hearing aids, assistive technology, learned behavior or adaptive neurological modifications” are not to be considered in determining whether there is an impairment that causes a substantial limitation on a major life activity. Only “ordinary eyeglasses or contact lenses” shall not be considered in assessing whether an individual has a disability;
• Clarifies that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active;
• Provides that an individual subjected to an action prohibited by the ADA (e.g., failure to hire) because of an actual or perceived impairment will meet the “regarded as” definition of disability, unless the impairment is transitory and minor;
• Provides that individuals covered only under the “regarded as” prong are not entitled to reasonable accommodation; and
• Emphasizes that the definition of “disability” should be interpreted broadly.

The practical impact of these amendments will be to expand the scope of ADA coverage, which is the express intent of Congress.  In other words, employees not previously considered “disabled” under the ADA will now be covered.  Employers will be well-advised to carefully consider whether it is appropriate to refuse to accommodate an employee on the ground that they are not “disabled” given the new standard.  Additional individuals to whom employers will need to offer reasonable accommodations at work.  Employers and their legal counsel will have to address what types of accommodations are reasonable and must be extended to this new class of disabled individuals.

The plaintiff worked as a cashier for Family Dollar and had requested the use of a stool to accommodate her disability, arthritis.  She alleged that standing caused her pain.  The problem for Family Dollar in the case was that her supervisors had previously allowed her to use a stool, but had then changed their mind because of complaints by co-workers that allowing her a stool was “preferential treatment.”  The key portion of the Court’s opinion is as follows:

Viewing the facts in the light most favorable to the plaintiff, she proposed the use of a stool (an accommodation that her supervisors had let her use on prior occasions), but she was told that this was no longer acceptable, allegedly because other employees had complained about unfair treatment. The parties dispute whether Talley was offered the chance to take breaks in lieu of using a stool and whether those breaks would have been sufficient to allow her to work her shift without pain. The record suggests that the use of a stool may have been a reasonable accommodation, especially since her prior supervisors allegedly were not concerned about Talley’s productivity when she was allowed to use the stool. There is testimony that Talley was able to adequately perform her job at the register with the use of a stool and that she did not require unlimited breaks when she was allowed to use the stool. While it is true that the plaintiff cannot reject a reasonable accommodation, according to Talley, she was not offered an accommodation that would have allowed her to work her shift without pain. Therefore, we conclude that there is a genuine issue of material fact regarding whether the plaintiff proposed a reasonable accommodation that would have allowed her to be “otherwise qualified” for the cashier position despite her disability. Further, if a jury were to find that Talley’s requests, both written and oral, for a stool constituted a request for a reasonable accommodation, there is a remaining dispute of whether that accommodation would cause an undue hardship for the employer. The defendants have not set forth specific facts indisputably demonstrating that the use of a stool would have presented an undue hardship for the company.

While the defendants allege that other co-workers had complained about unfair treatment, given Talley’s and other workers’ testimony that she was able to perform her job adequately when using the stool, there is a genuine issue of material fact as to whether this accommodation would have imposed an “undue hardship” on Family Dollar and the other defendants. Assuming that Talley was denied a reasonable accommodation that forced her to work in excess of her medical restrictions, a reasonable jury could infer that the defendants knew that Talley’s working conditions would become intolerable to a reasonable person suffering from her particular disability.

The court did clarify that not every denied request for an accommodation would pave the way for a constructive discharge claim:

As our sister circuit recognized in Johnson v. Shalala, “a complete failure to accommodate, in the face of repeated requests, might suffice as evidence to show the deliberateness necessary for constructive discharge.” 991 F.2d 126, 132 (4th Cir. 1993). We emphasize that our holding today does not pave the way for an employee to assert a claim for constructive discharge every time an employer fails to accommodate her disability. But when an employee makes a repeated request for an accommodation and that request is both denied and no other reasonable alternative is offered, a jury may conclude that the employee’s resignation was both intended and foreseeable.

The court also concluded, on page 8 of the opinion, that there was a genuine issue of material fact as to who was responsible for the breakdown of the mandatory “interactive process” to determine what accommodations might be possible.  This is a very important point for employers — a failure to participate in good faith in the “interactive process” will very likely be found to be a discriminatory practice under the Americans with Disabilities Act by the EEOC and the courts.  Employers should make a good faith effort to engage in the required interactive process with an employee requesting a disability and to document that process.

As noted in the Connecticut Employment Law Blog, the Q&A Guide is not a regulation.  Accordingly, the Guide should not be binding in court proceedings.  Nevertheless, employers facing ADA challenges in performance and conduct situations are well-advised to review the Q&A Guide because it will give the EEOC’s perspective on the application of the ADA in those situations.

Here is the Q&A Guide’s table of contents:

Introduction

1. Basic Legal Requirements
2. Application of ADA Legal Requirements to Performance and Conduct Standards
   1. Performance standards
   2. Conduct standards
   3. Questions pertaining to both performance and conduct issues
   4. Seeking medical information when there are performance or conduct problems
   5. Attendance issues
   6. Dress codes
   7. Alcoholism and illegal use of drugs
   8. Confidentiality issues arising from granting reasonable accommodation to avoid performance or conduct problems
   9. Legal enforcement

The authors also have a blog where they discuss the issue here.  They cite to an economic study that concludes that the ADA has actually worsened job opportunities for individuals with disabilities.

As noted before in this blog, with a Democratic-controlled Congress in session a change in administration in 2008 may result in new employment laws being passed.  Will those laws ultimately have the desired effect?